We often receive frantic calls from homeowners because they've called the bank after having been served with a foreclosure lawsuit, only to hear from the bank's representative that "Your foreclosure sale is December 22, 2009." "How can that be?" the borrower thinks, "The lawsuit was first filed on November 12, and I've received nothing by mail from my lender." In this blog, we will explain why this happens and what borrowers can do about it.
When the bank refers a case to its attorney, they require that attorney to stay within certain timelines. The speed and efficiency within which the plaintiff foreclosure firm can complete the foreclosure action, or the average time within which they can complete all cases referred to them, determines how many cases will get referred to that firm above their competitor plaintiff firms.
Although all lenders have their own internal timelines, one example is:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pursuant to this timeline, the lenders expect that the foreclosure will be complete between 140 and 150 days. Further, the lender automatically creates this timeline upon referral of the case to its counsel so that they can track and monitor their attorneys' speed and efficiency. Accordingly, the lender knows that if the file is referred on January 1, 2010, then the foreclosure sale should be on May 5, and all occupants evicted by May 21.
The problem is that each individual foreclosure action will vary in length based upon a number of factors: the judges' or courts' calendars (given the volume of foreclosures today, some judges have a wait time of between 3 and 4 months to get time on their hearing calendar); the number of defendants and their ease in being found (the more defendants or defendants who live out of the county where the case is pending may increase the time needed for service of process); foreclosure sale dates granted by the judge of 60 days or longer; and attorneys who file motions to challenge the lender's foreclosure action on any number of legal grounds. When the actual timeline varies from the lender's anticipated timeline, conversations like the one described above occur between lender and borrower because the lender's computer system shows the anticipated timeline rather than the actual timeline.
What can borrowers do about this? First, do not panic. Second, consult with an attorney who is familiar with the foreclosure timeline and the lenders' practices to come up with a plan to either save your home, or get rid of the house with minimal liability owed to the lender. Finally, inquire with an attorney as to whether this practice by the lender is a violation of the Fair Debt Collection Practices Act (FDCPA) or Florida's Consumer Collection Practices Act (FCCPA). Pursuant to those two laws, it is improper for the lender to misrepresent any facts about your debt in furtherance of the collection of a debt. Clearly, telling a borrower that their foreclosure sale is set for a date certain that is physically impossible given the Florida Rules of Civil Procedure would violate both the FDCPA and FCCPA. However, as these types of cases are very fact specific, you should consult with an attorney before coming to any conclusion that the lender's actions violate either of those two laws.
If you know someone who is facing foreclosure, and they contact the lender for information and the lender gives them a "foreclosure sale" date that seems unreasonable, it likely is based on an anticipated rather than actual timeline. That homeowner should follow up with the Clerk of Court, or a Florida licensed attorney before jumping to the often inaccurate conclusion that the sheriff is going to take their house away sooner than Florida Law allows.
-Shawn M. Yesner, Esq.
Yesner & Boss, P.L.
Comments(0)