The foreclosure process will vary in each State depending on whether you are in a Mortgage State or Deed of Trust State. Most mortgage states use the judicial process, while most deed of trust states use the power of sale process. For this purpose we are focusing on Florida, which is a judicial state.
The first step of the foreclosure process begins with the non-payment of the mortgage/lien by the property owner. Banks/lien holders vary on the amount of time they will allow to pass before they begin the foreclosure process. As a general rule this period is usually 90 days in default. Once they do, it proceeds as follows:
1. A "Lis Pendens" is filed on behalf of the Plaintiff. A Lis Pendens is a notice of pending litigation. Anyone who acquires an interest in the property is subject to the result of litigation. The Plaintiff is the party filing the Lawsuit. If other parties have a claim against the property, they can join the lawsuit. (See example A).
2. Service of process is initiated on behalf of the Plaintiff. The Plaintiff(s) can either hire an Attorney to represent them or can file pro se.
3. Defendants are the homeowners and anyone else who holds an interest in the property. A Process Server hired by the Plaintiff's attorney will serve the homeowner at the property. If the Defendants are unable to be served personally, then the Plaintiff must place an ad in a newspaper circulating in the County in which the property is located. This is called constructive notice. They will receive the Complaint, Lis Pendens and a copy of the mortgage instrument.
4. Defendants have 20 days to answer the Complaint. An answer is a response to the Complaint filed by the Defendants, which admits or denies the allegations contained in the Complaint. If the Defendants file an answer, the judge will set a hearing date, at which time the Defendants must defend the foreclosure.
5. Defendants must either send their response by certified mail with return receipt requested to the County Courthouse and the Plaintiff's attorney or take the response personally to the Courthouse with an extra copy which the Clerk will stamp with a date and time of receipt. The Clerk will keep the original and place it in the Defendants file. The other copy should be faxed to the Plaintiff's attorney's office. Defendants should keep any receipts as evidence that the reply was mailed.
6. If no answer is filed within the required time, the Plaintiff may move for a default. This may accelerate the foreclosure process in that the Plaintiff can move for a Summary Final Judgment.
7. At the hearing on a motion for summary final judgment, if the court grants the motion, a summary final judgment is entered and a sale date is set. The summary final judgment indicates the sale date and the judgment amount.
8. Defendants should be encouraged to respond to the Complaint and also attend the Summary Final Judgment hearing. If the Defendants attend the hearing they will be allowed to plead their case to the judge and ask for more time to resolve the foreclosure. They should tell the judge and the Plaintiff's attorney what they are doing to get the house sold and ask for a minimum of 90 days. In most cases the judge gives 60 days with the Plaintiff's attorney in agreement. If a homeowner does not show up at the hearing the sale date will be set approximately 30 days from the hearing date.
9. The property is sold for cash to the highest bidder on the sale date at the courthouse auction. If no one bids on the property it goes back to the Plaintiff and now becomes an R.E.O. property or Real Estate Owned by the Plaintiff.
10. The clerk of the court will issue a Certificate of Title to the new owner of the property approximately 10 days following the sale.
After the foreclosure sale the homeowner must vacate the property. Timeframes vary from lender to lender but usually the homeowner should vacate within 10 days of the foreclosure sale.