FLORIDA Foreclosure Process Judicial foreclosures only; non-judicial foreclosures are not permitted in Florida. All mortgages are foreclosed in equity. The court will sever, for separate trial, all counterclaims against the foreclosing lender. A lender may sue to obtain a deficiency judgment. The court order of foreclosure will specify how and when the foreclosure sale must take place. Usually, the foreclosure sale will take place not less than 20 days or more than 35 days after the date of the order. Although, if a lender or lender’s attorney agrees to delay the sale, the sale may be held more than 35 days after the date of the order. Generally, notice of the sale shall be published once a week for 2 consecutive weeks in a newspaper of general circulation, published in the county where the sale is to be held. Generally, the second publication shall be at least 5 days before the sale. After the sale, the clerk will enter a certificate of sale, which triggers the period of time during which objections to the sale may be made. This is to assure all parties and bidders that there were no irregularities at the auction, collusive bidding, etc. YEMC Constr. & Dev., Inc. v. Inter Ser, U.S.A., Inc., 884 So. 2d 446, 449 (Fla. Dist. Ct. App. 2004). If no objections to the sale are filed within 10 days after the clerk files the certificate of sale, the clerk will file a certificate of title. Equitable right of redemption ends upon issuance of the certificate of title (or at another time specified by the courts, but this rarely happens). See Riley v. Grissett, 556 So. 2d 473, 475 (Fla. Dist. Ct. App. 1990). Once the certificate of title has been issued, the clerk will issue a writ of possession for execution by the sheriff. Tenant Rights in Foreclosure Proceedings A tenant’s right to possession of the property shall not be cut off unless the tenant is made a party to the foreclosure action. Dundee Naval Stores Co. v. McDowell, 61 So. 108 (Fla. 1913). But cf. Riley v. Grissett, 556 So. 2d 473, 476 (Fla. Dist. Ct. App. 1990) (leasee estopped from asserting an interest in property following a foreclosure action to which leasee was not made a party; leasee had actual notice of proceedings and failed to disclose its interest in the property before the foreclosure sale); Fla. Stat. § 695.01(1) (2008) (unrecorded leases for a term longer than one year will not be good in law or equity against subsequent purchasers). Right to Notice and Timeframe (Y/N) No, no specific right to notice other than the right to be made a party to the foreclosure action. For statutes governing service of process and lis pendens see Fla. Stat. § 48.23 (2008); Fla. Stat. § 48.031 (2008); and Fla. Stat. § 48.183 (2008).
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Terminate Tenancy (Y/N) Yes, if the tenant is made a party to the foreclosure action. If the tenant is not made a party to the action, his interest in the property cannot be terminated. Eviction Process A landlord may terminate a rental agreement if a tenant materially fails to comply with a tenant’s statutory obligations, material provisions of a rental agreement, or reasonable rules and regulations. A landlord is required to give a tenant notice of the noncompliance if it is of a type that the tenant should be given an opportunity to cure. Upon delivery of notice, the tenant shall have 7 days to cure the noncompliance. If the noncompliance is of a type that the tenant should not be given an opportunity to cure, such as the intentional destruction or misuse of the landlord’s or other tenants’ property or continued unreasonable disturbance, the landlord may terminate the rental agreement. The tenant will have 7 days from the date that notice of the noncompliance is delivered to vacate the premises. If a landlord terminates a rental agreement, and the tenant does not vacate the premises, the landlord must file a civil action to determine the right of possession. If a landlord obtains a favorable judgment, the clerk will issue a writ of execution to put the landlord in possession of the premises. The sheriff will execute the writ after the eviction notice has been conspicuously posted on the premises for at least 24 hours. Eviction Timeframe A tenant will have a minimum of 10 days between the foreclosure sale and the time the new owner obtains a certificate of title and a writ of possession. Once a sheriff has posted an eviction notice on the premises, a tenant must vacate within 24 hours. If, however, a tenant was not made a party to the foreclosure proceedings or had no actual knowledge of the foreclosure proceedings prior to receiving the eviction notice, a tenant may file an affidavit with the sheriff pursuant to Fla. R. Civ. P. 1.580(b) to stay execution of the writ of possession. Otherwise, a tenant may seek to delay the eviction by filling a motion to extend sheriff’s execution, pursuant to Fla. R. Civ. P. 1.550. Relevant Authorities Statutes Fla. Stat. § 45.031 (2008) Fla. Stat. § 45.0315 (2008) Fla. Stat. § 48.23 (2008) Fla. Stat. § 48.031 (2008) Fla. Stat. § 48.183 (2008) Fla. Stat. § 83.62 (2008) Fla. Stat. § 702.01 (2008) Fla. Stat. § 702.03 (2008) Fla. Stat. § 702.035 (2008); Fla. Stat. § 702.07 (2008) Rules of Civil Procedure Fla. R. Civ. P. 1.580 Fla. R. Civ. P. 1.550
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Case Law Dundee Naval Stores Co. v. McDowell, 61 So. 108 (Fla. 1913). Riley v. Grissett, 556 So. 2d 473 (Fla. Dist. Ct. App. 1990). Commercial Laundries of West Florida, Inc. v. Tiffany Square Investors Ltd. P’ship., 605 So. 2d 116 (Fla. Dist. Ct. App. 1992). Burns v. Bankamerica Nat’l Trust Co., 719 So. 2d 999 (Fla. Dist. Ct. App. 1998). YEMC Constr. & Dev. Inc. v. Inter Ser U.S.A., Inc., 884 So. 2d 446 (Fla. Dist. Ct. App. 2004).
Current Developments On October 1, 2008, the Foreclosure Rescue Fraud Prevention Act of 2008 went into effect, which provides a mechanism to ensure that mortgagors are properly informed about their rights before signing a contract with a foreclosure rescue entity. Additional Resources Florida Department of Community Affairs, Division of Housing and Community Development (www.floridacommunitydevelopment.org)
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