THERE IS NO RIGHT OF REDEMPTION AFTER FORECLOSURE SALE IN FLORIDA - CONTRARY TO FLORIDA REALTORS ARTICLE

By
Title Insurance with THE ZARETSKY LAW GROUP P.A. - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY
http://actvra.in/hp5

The Florida Association of Realtors published yesterday an article called The Basic Steps of Foreclosure, picked up from the Detroit Free Press.  It lists the 7 stages of a typical foreclosure.  Unfortunately, although these 7 steps may be valid somewhere – they are incorrect in Florida.  In fact the last step does not exist in Florida.  My thanks to Cheryl Link, Esq., General Counsel to Illustrated Properties Real Estate for pointing out the article to me with the heads up!

 

The news report is on the FAR Website, and appears below.

 

The report if read by a homeowner, would make them believe that even after their home has been sold on the courthouse steps (by the clerk of court – not the sheriff), there is a REDEMPTION PERIOD.  In Florida there is essentially NO redemption period after the foreclosure sale!  The Florida Law on the right of redemption is covered by Florida Statute 45.0315 as follows:

 

45.0315 Right of redemption.At any time before the later of the filing of a certificate of sale by the clerk of the court or the time specified in the judgment, order, or decree of foreclosure, the mortgagor or the holder of any subordinate interest may cure the mortgagor’s indebtedness and prevent a foreclosure sale by paying the amount of moneys specified in the judgment, order, or decree of foreclosure, or if no judgment, order, or decree of foreclosure has been rendered, by tendering the performance due under the security agreement, including any amounts due because of the exercise of a right to accelerate, plus the reasonable expenses of proceeding to foreclosure incurred to the time of tender, including reasonable attorney’s fees of the creditor. Otherwise, there is no right of redemption.

 

The Certificate of Sale is filed by the clerk of the court the same day as the sale – usually immediately subsequent to the sale taking place, thanks to using computers instead of typewriters.  So essentially if you don’t pay the judgment prior to the foreclosure sale (which in most counties takes place “on line” and no longer “live” at the courthouse), you have no redemption rights – contrary to paragraph 7 of the FloridaRealtors news article.

 

Other technical issues abound.  Our experience and in discussions with lenders servicing FannieMae loans tells us that this is policy – not law.  If a loan does manage to get foreclosed during the modification process, there is no obligation that the lender (or FannieMae) will set aside the sale, and in fact we tend to see that they don’t.  They almost take a “what does it matter” attitude (see my article FORECLOSURE EXPRESS vs THE LITTLE ENGINE THAT COULD - IN COURT SHORT SALE SUCCESS). 

 

Also, if the process of the loan modification stops (“lost documents” or untimely submissions by the borrower, missed trial payment, etc), the foreclosure will not be stopped.

 

Lastly, the “protected from losing their homes” does not mean the foreclosure process will slow down or stop – in fact it means that the foreclosure process will continue at all due speed, but no sale date for a foreclosure sale will be set or if set, it will be cancelled if the mortgage modification is still being timely processed.

 

Foreclosure procedure is governed by Florida Statute Chapter 702 and I just wrote an article on it at HOW LONG DOES A FORECLOSURE TAKE?.  Foreclosure can proceed under the traditional foreclosure process or it can proceed under a not too new but seldom used (I don’t know why!) shorted procedure set forth in Section 702.10.  These methods of foreclosure apply to both residential and to commercial foreclosures.  The foreclosure sale process is set forth in Florida Statute Section 45.031.  My November 2008 article on the process of the foreclosure was presented in A LAWYER'S EXPLANATION OF THE FORECLOSURE PROCESS. 

Here is the FAR article:

The basic steps of foreclosure

WASHINGTON – Aug. 24, 2011 – In recent news, Fannie Mae has publicly assured homeowners going through foreclosure that they will be protected from losing their homes while applying for a federally funded loan modification. Homeowners can apply for a modification at any point before or during the foreclosure process.

If a modification is approved, homeowners can keep their homes if they make their adjusted payments. Absent that, here are the stages of a typical foreclosure:

1) In default: A loan is in default when a mortgage payment is 30 days late.

2) Warning: When a loan is 60 days past due, the bank, credit union or mortgage company warns that foreclosure is the next step.

3) Proceedings begin: After 90 days, the lender refers the loan to its foreclosure department, and hires a local lawyer to begin foreclosure proceedings.

4) Sale advertised: The lender's lawyer advertises the property for sale for four consecutive weeks in a local newspaper. The sheriff's sale date is listed in the advertisement.

5) Sale held: The sale is held on the published date. A sheriff's employee conducts a courthouse auction and the highest bidder wins, usually the bank that owned or serviced the mortgage.

6) Sheriff's deed: The winning bidder gets a sheriff's deed that lists the last date the homeowner can redeem, or take back, the property, usually six months from the date of the sheriff's sale. During this redemption period, the homeowner can live in the property or try to sell it.

7) Redemption period: To redeem a property, the homeowner must pay off the mortgage and all interest and late fees, court and attorney fees, title and appraisal fees, taxes and insurance. Otherwise, they will be evicted from the home.

--------------------------------------------------------------

 Copyright 2011 by Richard P. Zaretsky, Esq.

 Be sure to contact your own attorney for your state laws, and always consult your own attorney on any legal decision you need to make.  This article is for information purposes and is not specific advice to any one reader. Richard Zaretsky, Esq., RICHARD P. ZARETSKY P.A. ATTORNEYS AT LAW, 1655 PALM BEACH LAKES BLVD, SUITE 900, WEST PALM BEACH, FLORIDA 33401, PHONE 561 689 6660  RPZ99@Florida-Counsel.com    - FLORIDA BAR BOARD CERTIFIED IN REAL ESTATE LAW - We assist Brokers and Sellers with Short Sales and Modifications and Consult with Brokers and Sellers Nationwide!  Shortsales@Florida-Counsel.com     New Website www.Florida-Counsel.com    

 See our easy to find articles at TABLE OF CONTENTS - SHORT SALE AND LOAN MODIFICATION ARTICLES.

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Re-Blogged 2 times:

Re-Blogged By Re-Blogged At
  1. Nestor & Katerina Gasset 08/27/2011 04:03 PM
  2. Gabe Sanders 09/05/2011 10:08 AM
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Show All Comments
Rainmaker
565,497
Kathy Sheehan
Movement Mortgage 770-634-4021 - Atlanta, GA
Branch Manager

I think it is important that not all states operate under the same laws when it comes to foreclosure.  Thanks for setting the record straight.

Aug 25, 2011 08:59 AM #1
Rainmaker
895,502
Brian Madigan
RE/MAX West Realty Inc., Brokerage (Toronto) - Toronto, ON
LL.B., Broker

Richard,

You raise a very important point.

Laws vary State to State and Province to Province. I frequently publish articles concerning real estate legal issues in Ontario. And, when I say Ontario, I just mean Ontario.

The risk with the internet, is that consumers find articles and think that they apply everywhere. This can be very risky, and is potentially a problem with consumers viewing posts here on AR.

Thanks for the clarification.

Brian

Aug 25, 2011 09:19 AM #2
Rainmaker
214,297
Richard Zaretsky
THE ZARETSKY LAW GROUP P.A. - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY - West Palm Beach, FL
Florida Real Estate Attorney

Right on Brian - the problem is exactly that - the law of the land happens to have borders.

Aug 25, 2011 09:31 AM #3
Rainer
115,635
Linda Edelwich
William Raveis Real Estate - Glastonbury, CT
Glasotnbury Office's #1 Top Producing Agent-not on

I always though the laws were pretty much the same throughout the country. Interesting to know there was a redemption period. I cant imagine in this day and age that would ever happen

Aug 25, 2011 09:54 AM #4
Rainer
83,644
Heather Littrell
Keller Williams - North Concord, NC
ABR,GRI,SRES Cabarrus County NC

Wow, if we had a redemption period in North Carolina everything COULD be different.  I am sure that we are still giving a lot of free time in homes everywhere, but this epidemic has to stop sometime....right?

Aug 25, 2011 10:07 AM #5
Rainmaker
1,276,469
Richie Alan Naggar Author PEARLS SERIES of books
People first then business! Ran Right Realty Riverside, Ca - Riverside, CA
on LIFE and LOVE plus Real Estate too!

Good awareness post and I agree with my fellow professionals...not all searches and data on the subject matter is national. One thing remains, losing a home is not a pleasant experience wherever you live on this planet

Aug 25, 2011 10:09 AM #6
Rainmaker
66,661
Miriam Dillon
Homes On 30a - Rosemary Beach, FL
Realtor in Rosemary Beach, SoWal and all of 30A

And this is why it is so important that we recommend to our clients that they consult with an attorney so that they fully understand the process and ramifications.  

Aug 25, 2011 10:38 AM #7
Rainmaker
534,171
Morgan Evans
Douglas Elliman Real Estate - Manhattan, NY
LICENSED REAL ESTATE SALESPERSON

A topic like this is exactly why any homeowner that will be going through this process needs to consult an attorney and real estate broker who specializes in these types of issues.  Having a detailed local understanding is going to make a huge difference.

Aug 25, 2011 10:53 AM #8
Rainmaker
1,089,586
Bryant Tutas
Bryant Tutas-Tutas Towne Realty, Inc - Poinciana, FL
Broker/REALTOR, Tutas Towne Realty, Inc
Comical to say the least. Why FAR would publish something like thisxeiyh out verifying is just mind boggling. Thanks for the clarity Richard.
Aug 25, 2011 10:57 AM #9
Rainmaker
238,752
Highland Beach Condos David Serle
RE/MAX Services - Highland Beach, FL
Boca Raton Agent David Serle

great information.  Thank you.  Isn't there sometimes a right of redemption clause in the mortgage?  Could that be what they are referring to?

Aug 25, 2011 11:16 AM #10
Rainmaker
599,030
Nancy Conner
Managing Broker - City Realty Inc - Olympia, WA
Olympia/Thurston County WA
What an important reminder that the specific state law that applies is what counts - not how things are done somewhere else.
Aug 25, 2011 11:23 AM #11
Rainmaker
163,073
Reba Haas
Team Reba of RE/MAX Metro Eastside www.TeamReba.com - Bellevue, WA
Team Reba, CDPE

yes, it's scary the misinformation that can get out to consumers because the internet cannot delineate where laws are in effect and where they aren't. Due diligence is ALWAYS necessary.

Aug 25, 2011 11:46 AM #12
Rainmaker
605,925
Petra Norris
CDV TransAtlantic, Inc. - Lakeland, FL
Realtor, Lakeland FL Homes for Sale

Richard - to say the least I was a bit surprised when I read the article. In my opinion the FAR lawyers should have taken a look at this article before it was published, especially when it has to do with foreclosure laws that does not apply to Florida foreclosure law. The least the (Editor) could have done was to run it by the FAR's legal department.

Aug 25, 2011 12:06 PM #13
Rainmaker
570,044
Bill Gillhespy
16 Sunview Blvd - Fort Myers Beach, FL
Fort Myers Beach Realtor, Fort Myers Beach Agent - Homes & Condos

Hi Richard,  Our assoc legal team should have been all over this article.  Wonder how many distressed home owners were led astray by this ?  Well done !

Aug 25, 2011 03:43 PM #14
Rainmaker
209,815
Jackie Hawley
ReMax Encore - Clarkston, MI
Southeast Michigan Real Estate

That's not even really accurate for Michigan... but what can you expect from the Detroit Free Press? The redemption period is 6 months after the sheriff's sale UNLESS it's been abandoned, if it's on 3+ acres or a certain % equity then there is a 12 month redemption period. Bankruptcy I believe can change the redemption.

The highest bidder may not win. Normally you see the banks buying the houses at sheriff's sale, but the article leads one to believe that anybody off the streets with any bid will win as long as someone doesn't bid higher.

There are no set times and we are seeing no rhyme or reason to when the bank will start foreclosure proceedings. I've known some who have gone 2 years without making a payment and no notice of foreclosure. 

Aug 25, 2011 06:19 PM #15
Rainmaker
977,730
Sharon Alters
Coldwell Banker Vanguard Realty - Fleming Island, FL
Your Fleming Island Relocation Agents.

Richard, thanks for clarifying this. Can't believe FAR published without checking with their counsel. We have foreclosure listings that are in Redemption Periods - I don't understand what that is about since we don't have any redemption here in FL after the courthouse sale.

Sharon

Aug 26, 2011 12:16 AM #16
Rainmaker
73,747
Chicago Real Estate
Goran Utvic | Chicagoland Brokers Inc, Chicago IL 60656 - Chicago, IL
Goran Utvic

Richard - thanks for the informative foreclosure article.

Aug 26, 2011 09:17 AM #17
Rainer
145,246
Sarasota & Manatee Counties FL
SaraMana Properties - QuickFreeMLS.com - Bradenton, FL
QuickFreeMLS.com - Listings In Paradise

A good blog post that I enjoyed reading! Thank you for sharing it with us!

Aug 26, 2011 05:11 PM #18
Rainmaker
420,595
Leslie Ebersole
Baird&Warner Fox Valley - Saint Charles, IL
REALTOR - Chicagonulls Western Suburbs

No right of redemption in IL. We're a judicial foreclosure state, so by statute it's a minimum of 9 months after the homeowner has missed 90 days of payments. In practice, we're running about 15 months from the filing of the first lis pendens....which is frequently after 6 months or more of missed payments.

People in IL have plenty of time to rework their situations with the lenders....no period of redemption is really necessary.

Aug 28, 2011 09:34 PM #19
Rainmaker
455,910
Wendy Rulnick
Rulnick Realty, Inc. - Destin, FL
Destin FL Real Estate

Richard - Again, you've written an important article that needs a lot of publicity.  I think you ought to write FAR, too.  

Sep 05, 2011 02:51 PM #20
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Rainmaker
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Richard Zaretsky

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