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FasTrain - Mortgage Foreclosure and Alternatives, 7th Edition with CD-ROM

FasTrain - Mortgage Foreclosure and Alternatives, 7th Edition with CD-ROM

This guide for handling mortgage defaults helps you to decide the best action to take against the debtor and sets out all steps for a foreclosure action.


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Publisher :Florida Bar Continuing Legal Education
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    The seventh edition of this manual contains new case law addressing the following issues:

    •  documentation required to establish the right/standing to foreclose
    •  foreclosure by mortgage servicing companies and assignees (and the use of robosigners)
    •  status of MERS as foreclosing party
    •  conditions precedent to filing foreclosure including diligent search and inquiry
    •  treatment of homeowner and condominium association assessments
    •  appointment of a receiver
    •  timeshare foreclosures
    •  defenses to foreclosure
    •  cancelling or rescheduling sales, and grounds for setting aside final judgments or sales
    •  right of redemption
    •  deficiency judgments
    •  short sales
    •  effect of bankruptcy stay on foreclosure proceedings and standing to pursue relief from stay
    •  termination of stay for repeat filers, and stay relief for cause including lack of adequate protection

    The manual also contains pointers for complying with the Fair Debt Collection Practices Act and with the Protecting Tenants at Foreclosure Act.

    Over 40 updated forms are included in the manual and on the accompanying CD-Rom. For full system requirements, click here.


    Visit our Real Property website for a complete list of The Bar's Rules of Procedure related titles.

    Visit our Florida Bar Continuing Legal Education Publications website for a complete list of The Bar's titles.


    The eBook versions of this title feature links to Lexis Advance for further legal research options.

    I. A NOTE ABOUT MORTGAGE FORECLOSURE

    II. BEFORE FILING: INITIAL CONSIDERATIONS

    A. Obtain And Acknowledge Receipt Of Letter Of Instruction

    B. Learn Facts Of Case
    1. In General
    2. Review Letter And Documents
    3. Examine Abstract
    4. View Premises
    5. Estimate Duration Of Action
    6. Estimate Expense Of Action
    7. Consider Environmental Assessment
    8. Determine Whether Mortgage Lending Fraud Or Foreclosure Abuse Exists

    C. Consider Alternatives To Foreclosure
    1. In General
    2. Payment Of Debt
    3. Reinstatement Of Loan
    4. Deed In Lieu Of Foreclosure
    5. Liquidation/Forbearance Agreements
    6. Action On Note Alone
    7. Restructuring Loan

    III. PROCEED TO MORTGAGE FORECLOSURE

    A. Determine Need For Demand Letter
    1. General Rule
    2. Applicability Of Fair Debt Collection Practices Act
    3. To Ensure Collection Of Rents

    B. Draft Complaint
    1. Review All Local Rules
    2. Review Nature of Documents
    3. Ascertain Plaintiffs
    4. Ascertain Defendants
    5. Determine Proper Form Of Complaint
    6. Determine Whether To Seek Appointment Of Receiver
    7. Determine If Mortgage Secures A Timeshare Interest

    C. File Complaint
    1. Appropriate Court And Jurisdiction
    2. Effect Of Filing
    3. Mandatory Mediation
    4. Effect Of Dismissal Of Complaint

    D. File Notice Of Lis Pendens

    E. Obtain Service Of Process
    1. In General
    2. Service On United States Of America
    3. Service On State Of Florida
    4. Constructive Service
    5. Other Methods Of Service

    F. Obtain Defaults
    1. In General
    2. Applicability Of Servicemembers Civil Relief Act

    G. Obtain Guardian Ad Litem, Attorney Ad Litem, And Administrator Ad Litem If Necessary
    1. In General
    2. Procedure

    H. File Motion For Final Judgment
    1. In General
    2. Procedure

    I. Review Possible Defenses

    J. Sanctions

    K. Defenses Not Raised

    L. Prepare For Final Hearing
    1. Obtain Original Documents
    2. Consider Bankruptcy Costs And Fees

    M. Obtain Final Judgment
    1. In General
    2. Additional Provisions
    3. Effect Of Final Judgment
    4. Setting Aside Final Judgment

    N. Proceed To Judicial Sale
    1. Sale Date And Publication Of Notice
    2. Form For Notice Of Sale
    3. Motion To Cancel Or Reschedule Sale
    4. Sale Procedure
    5. Amount Bid

    O. Obtain Certificates
    1. Redemption Right Prior To Issuance
    2. Issuance

    P. Obtain Writ Of Possession If Necessary

    Q. Guard Against Typical Procedural Errors
    1. Omitted Parties
    2. Incorrect Spellings
    3. Incorrect Legal Description
    4. Incorrect Judgment Amount
    5. Incomplete Order
    6. Vacating Dismissal

    R. Obtain Judgment For Deficiency

    S. Disburse Proceeds Of Sale

    T. Obtain Expedited Foreclosure If Appropriate
    1. When Appropriate
    2. Order To Show Cause
    3. Interim Payments

    U. Set Sale Aside If Warranted
    1. In General
    2. Inadequate Consideration
    3. Mistake Or Accident
    4. Irregularity In Conduct Of Sale
    5. Other Reasons
    6. Appellate Review

    IV. PROCEDURE WHEN MORTGAGOR HAS FILED BANKRUPTCY

    A. Introduction

    B. Review Authority And Procedures Of Bankruptcy Court

    C. File Initial Appearance

    D. Obtain Background Documents

    E. File Proof Of Claim
    1. Types Of Claims
    2. Filing Claim

    F. Obtain Relief From Automatic Stay
    1. Automatic Stay Defined
    2. Effect Of Stay On Foreclosure Proceeding
    3. Termination Of Automatic Stay
    4. File Motion For Relief From Automatic Stay

    G. Review Treatment Of Mortgagee Under Plan
    1. In General
    2. Chapter 13 Plan
    3. Chapter 12 Plan
    4. Chapter 11 Plan

    V. RELATED READINGS

    VI. FORMS
    1. Instruction Letter
    2. Engagement Letter
    3. Mortgage Foreclosure Worksheet
    4. Deed In Lieu Of Foreclosure
    5. Grantor's Estoppel/Solvency Affidavit
    6. Forbearance Agreement
    7. Demand Letter
    8. Alternate Demand Letter
    9. Exhibit "....." (Fair Debt Collection Practices Act)
    10. Letter To Title Company Requesting Partial Abstract
    11. Complaint
    12. Count For Receiver For Inclusion In Foreclosure Complaint
    13. Order Appointing Receiver
    14. Notice Of Lis Pendens
    15. Plaintiff's Affidavit Of Compliance With 28 U.S.C. §2410
    16. Affidavit For Constructive Service
    17. Notice of Action
    18. Motion For Default
    19. Plaintiff's Motion For Appointment Of Attorney Ad Litem, Guardian Ad Litem, Or Administrator Ad Litem
    20. Order Appointing Attorney Ad Litem, Guardian Ad Litem, Or Administrator Ad Litem
    21. Oath Of Attorney Ad Litem, Guardian Ad Litem, Or Administrator Ad Litem
    22. Answer Of Attorney Ad Litem, Guardian Ad Litem, Or Administrator Ad Litem
    23. Plaintiff's Affidavit Of Defendant's Indebtedness
    24. Plaintiff's Affidavit As To Costs
    25. Plaintiff's Affidavit Of Attorneys' Time
    26. Plaintiff's Affidavit Of Attorneys' Fees
    27. Plaintiff's Affidavit As To Non-Military Service
    28. Motion For Summary Final Judgment
    29. Final Judgment Of Foreclosure
    30. Notice Of Sale
    31. Motion To Cancel And Reschedule Foreclosure Sale
    32. Certificate Of Sale
    33. Certificate Of Title
    34. Certificate Of Disbursements
    35. Owner's Claim For Mortgage Foreclosure Surplus
    36. Notice Of Appointment Of Surplus Trustee
    37. Order To Show Cause For Entry Of Final Judgment
    38. Order To Show Cause For Order To Make Payments During Pendency Of Foreclosure Action Or To Vacate Premises
    39. Notice Of Appearance And Request To Be Placed On Mailing Matrix
    40. Letter To Trustee Regarding Estate Property
    41. Motion For Relief From Automatic Stay Or For Adequate Protection
    42. Letter To Trustee Requesting Execution Of Consent
    43. Trustee's Consent To Motion For Relief From Automatic Stay
    44. Letter To Trustee Requesting Abandonment
    45. Report And Notice Of Trustee's Intention To Abandon Property Of Estate
    46. Affidavit Of Indebtedness
    47. Order Granting Motion For Relief From Automatic Stay
    48. Objection To Debtor's Chapter 13 Plan

     

    The Florida Bar


    Protecting Rights, Pursuing Justice, Promoting Professionalism.

    The mission of The Florida Bar Continuing Legal Education Committee is to assist members of The Florida Bar in their continuing legal education and to facilitate the development, production, and delivery of quality CLE opportunities for the benefit of Bar members in coordination with the sections, committees, and staff of The Florida Bar and others who participate in the CLE process.

    Through a joint publishing relationship, The Florida Bar and LexisNexis have combined their expertise to best serve the information needs of those practicing law in Florida.

     

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