Miami Foreclosure Defense Attorney

A Florida homeowner facing foreclosure can respond in court, challenge the lender's proof and pursue an agreed alternative. The foreclosure claim is tried to a judge under chapter 702, Florida Statutes. After judgment, the homeowner may still redeem the property before the certificate of sale is filed, or a later deadline stated in the judgment.

Aaron Resnick, a Miami real estate attorney with Law Offices of Aaron Resnick, defends homeowners in residential foreclosure cases across Florida and negotiates with lenders for alternatives to foreclosure.

What Does a Miami Foreclosure Defense Attorney Do?

A foreclosure defense attorney represents the homeowner in the lawsuit, reviews the lender's proof and negotiates possible alternatives. Aaron Resnick provides residential foreclosure defense services across Florida. He starts with the homeowner's goal, keeping the home or reaching an acceptable exit, and assesses which legal and financial options the facts support.

Legal representation. Aaron Resnick protects the homeowner's rights through the foreclosure proceedings.

Negotiation with lenders. He seeks loan modifications, reduced payments or other alternatives to foreclosure.

Strategic defense. He examines errors in the mortgage process and challenges a foreclosure when the plaintiff cannot prove the required entitlement to enforce the loan.

How Does Foreclosure Work in Florida?

Residential mortgage foreclosure is a court process in which the lender files a complaint, serves the homeowner and must obtain a judgment before a foreclosure sale. When the court orders the procedure in chapter 45, Florida Statutes, the clerk conducts the public sale. Aaron Resnick checks the loan documents, service, response deadline and any scheduled hearing or sale.

What Notice Must Be Published Before the Sale?

Under chapter 45, Florida Statutes, notice may appear on a qualifying publicly accessible website for at least two consecutive weeks before the sale. Alternatively, a qualifying newspaper publishes notice once a week for two consecutive weeks, with the second publication at least five days before the sale. These are different publication methods, not one interchangeable formula.

Can a Request for Mortgage Assistance Affect Foreclosure?

For covered mortgages on a borrower's principal residence, the federal mortgage servicing rule generally bars the first foreclosure filing until the loan is more than 120 days delinquent and restricts foreclosure steps when a complete loss mitigation application (a request for a loan modification or another way to avoid foreclosure) is received within the rule's deadlines.

A complete application received before the first foreclosure filing can prevent that filing while the rule's protections apply. After filing, a complete application received more than 37 days before the sale can restrict a foreclosure judgment, an order of sale and the sale itself. The application and timing requirements matter.

Those restrictions can end after an ineligibility determination and the applicable appeal process, rejection of every offered option, or failure to perform an agreed option. The rule does not require a particular modification offer. A conversation about assistance is not necessarily a complete application.

The 120 day restriction has exceptions for a transfer that violates a due on sale clause (a loan term letting the lender demand full payment on transfer) and joining another lienholder's foreclosure. Coverage and servicer exceptions also matter. A request for assistance does not guarantee a modification or excuse a court response; Aaron Resnick checks the application record and the lawsuit together.

What Must a Lender Put in a Florida Foreclosure Complaint?

For residential property designed principally for one to four families and securing a promissory note, the complaint must identify the plaintiff as the original note's holder or state specific facts showing another right to enforce it. Chapter 702, Florida Statutes, requires that explanation at filing. Aaron Resnick checks the allegations against the loan documents.

The requirements include individual condominium and cooperative units within that scope. Florida Rule of Civil Procedure 1.115 also requires verification of a residential mortgage foreclosure claim. The court may sanction failure to comply with the statutory complaint requirements.

What if the Plaintiff Has the Original Note?

The plaintiff must file a certification under penalty of perjury with the complaint. It identifies the note's location, the certifier's name and title, the person who verified possession, and the time and date of verification. Correct copies of the note and every allonge, an attached endorsement page, must accompany the certification required by chapter 702, Florida Statutes.

The original note and allonges must be filed before a foreclosure judgment or judgment on the note. The statutory definition also recognizes a qualifying electronic transferable record. Aaron Resnick reviews the document and the claimed authority, rather than assuming that only one type of paper record can support enforcement.

What if the Note Is Lost, Destroyed or Stolen?

The complaint must include an affidavit under penalty of perjury describing the chain of endorsements, transfers or assignments and the facts supporting enforcement. Available copies, audit records and other supporting evidence must accompany it. Chapter 702, Florida Statutes, also requires adequate protection before final judgment against loss from another claim to enforce the same note.

A missing original does not automatically defeat foreclosure. The plaintiff must satisfy the lost instrument requirements in chapter 673, Florida Statutes, including proof of the instrument's terms, entitlement to enforce it and the required protection. A plaintiff acting under delegated authority must describe that authority and identify its source document.

Entitlement to enforce and ownership of a note are not always the same. Chapter 673, Florida Statutes, recognizes specified holders, nonholders with a holder's rights and qualifying persons without possession. The complaint requirements do not replace the law governing standing or excuse missing proof.

Must a Homeowner's Counterclaim Be Tried Separately?

No automatic separation is required. In Haven Federal Savings & Loan Association v. Kirian, the Florida Supreme Court held in 1991 that the statute's mandatory separation of counterclaims conflicted with the court rule. Florida Rule of Civil Procedure 1.270(b) leaves a separate trial to the judge's discretion; the foreclosure claim itself remains a claim tried without a jury.

What Happens After a Homeowner Is Served With a Foreclosure Lawsuit?

In an ordinary Florida state residential mortgage foreclosure, Florida Rule of Civil Procedure 1.140 generally requires the homeowner to serve an answer within 20 days after service of the summons and complaint, unless a different Florida statutory period applies. Aaron Resnick checks the service record, the summons and any separate court order before calculating the deadline.

Under Florida Rule of General Practice and Judicial Administration 2.514, counting starts on the next day that is not a Saturday, Sunday or legal holiday. Count the intervening weekends and holidays. If the last day is a weekend, legal holiday or covered extension period, use the next qualifying day.

Service by publication uses the date fixed in the publication notice. A qualifying motion under Rule 1.140 can change the answer timetable, but not every motion does. A motion for judgment on the pleadings or a motion to strike under subdivision (f) does not trigger that rule's extension.

An answer must be served and filed through the required procedures. Merely contacting the lender, asking for a modification or requesting more time does not itself extend the answer deadline. Failure to defend can result in default under Rule 1.500; a final foreclosure judgment is not automatic merely because 20 days have elapsed.

What if the Court Issues an Order to Show Cause?

A lienholder can seek an accelerated foreclosure hearing under chapter 702, Florida Statutes. Ordinarily, the hearing cannot occur before the later of 20 days after service of the order or 45 days after service of the initial complaint. When service is by publication, the statute instead specifies at least 30 days after the first publication.

A timely motion, pleading, affidavit or other paper that raises a genuine material factual dispute preventing summary judgment (a ruling without a trial), or a legal defense to foreclosure, supplies a reason not to enter final judgment at that hearing. The homeowner may also appear personally or through an attorney and present supported defenses.

Failing to respond or appear can waive the hearing opportunity, but the court must still determine entitlement to judgment. The procedure does not dispense with the original note or the applicable lost note requirements. A final judgment under this show cause procedure grants relief against the property only, not an automatic personal deficiency judgment (a judgment for the balance still owed after the sale).

Send Aaron the summons and any show cause order together. The answer deadline and the hearing date are different obligations; waiting for the hearing can lose the opportunity to respond properly.

Can a Homeowner Stop a Foreclosure Sale After the Judgment?

A homeowner can redeem the property by paying the judgment amount before the clerk files the certificate of sale, or before a later time specified in the judgment, order or decree. Chapter 45, Florida Statutes, uses the later cutoff. Aaron Resnick checks the actual documents because the auction and the end of redemption are not always the same event.

Before judgment, redemption requires the performance due under the security agreement, including an amount due because the debt was accelerated (the lender demanded the full balance), plus the creditor's reasonable foreclosure expenses. Those expenses include reasonable attorney fees. Paying only missed installments is not necessarily enough after acceleration; any agreed reinstatement terms require a separate review.

The statute also gives a holder of a subordinate interest a right to redeem. Outside its stated period, it provides no further right of redemption. The 10 day objection period after the certificate of sale is not an automatic additional redemption period.

Can the Court Set Aside Its Judgment Before the Sale?

Under chapter 702, Florida Statutes, the circuit court can rescind, vacate or set aside the foreclosure decree before the sale is actually made, and can dismiss the proceeding upon payment of court costs. This grants court authority, not an automatic right to erase the debt by paying costs. Aaron Resnick reviews the grounds for the requested relief.

What Can Be Challenged After the Sale?

Chapter 45, Florida Statutes, distinguishes objections to the sale from objections to the bid amount. An objection to the bid amount must be served within 10 days after filing the certificate of sale. If no objection to the sale is filed in that period, the clerk files the certificate of title and title passes.

A timely objection to the bid amount receives a court hearing, but that objection does not cloud the title. The sale objection process, redemption and a request to set aside a judgment serve different purposes. A homeowner should not assume that filing one document automatically provides every form of relief.

When Is a Purchaser's Title Protected From a Later Challenge?

Chapter 702, Florida Statutes, restricts attacks on title when all four statutory conditions exist: proper service on the challenger, a final foreclosure judgment, expiration and resolution of the appeals, and acquisition for value by a qualifying unaffiliated buyer without a recorded notice of the challenge. Aaron Resnick checks each condition before assessing the available remedy.

The buyer must be unaffiliated with the foreclosing mortgageholder, foreclosing lienholder and foreclosed owner. The court must check whether a lis pendens (a recorded notice that a lawsuit affects the property) concerning the challenge was recorded in the county's official records when the buyer acquired the property. The statutory definition of affiliation reaches more than a shared business name.

When the protection applies, the challenge proceeds as a claim for money rather than relief that harms the purchaser's title. The statute preserves other available relief that does not affect that title. Do not treat the rule as either an unrestricted right to undo a completed sale or a bar to every remedy.

What Are the Alternatives to Foreclosure in Florida?

A loan modification, a short sale and a deed in lieu are three options Aaron Resnick reviews with Florida homeowners. A modification may allow the homeowner to keep the property. A short sale or deed in lieu transfers the property by agreement rather than through a foreclosure sale, with the remaining debt addressed in the agreement.

Loan modification. Aaron Resnick negotiates proposed changes to the payment, interest rate or loan term. Approval depends on the loan and the available program. Read about loan modification assistance and the firm's benefits of loan modification. Read the firm's steps to a loan modification for the application process.

Short sale. The lender agrees to a sale for less than the mortgage balance. Aaron Resnick negotiates the proposed sale and reviews whether the lender will waive the remaining debt. Read about short sales in Florida.

Deed in lieu of foreclosure. The homeowner voluntarily transfers ownership to the lender under an agreement instead of completing foreclosure. The Consumer Financial Protection Bureau advises obtaining any deficiency waiver in writing. Aaron Resnick reviews the transfer and release terms; a deed alone is not a promise that every obligation ends.

A deed in lieu still affects credit and means giving up the home, although the Federal Trade Commission says it can be less damaging to credit than foreclosure. That possibility does not promise a particular credit score or approval for another loan. Keep written confirmation of the completed transaction and check how it is reported.

Read what a deed in lieu of foreclosure is and the firm's alternatives to foreclosure. Compare the firm's foreclosure options before deciding whether to keep or transfer the home. Aaron Resnick compares the lender's offer, the homeowner's finances and the treatment of any unpaid balance before recommending an agreement.

Can the Lender Collect the Unpaid Balance After a Foreclosure or a Short Sale?

A Florida lender may seek a deficiency after foreclosure, but an award is not automatic. For an owner occupied residential property, chapter 702, Florida Statutes, caps it at the judgment amount minus the property's fair market value on the sale date. Aaron Resnick checks the valuation, occupancy and any release before assessing a demand.

For a short sale of owner occupied residential property, the cap uses the outstanding debt instead of the judgment amount and subtracts fair market value on the sale date. A homestead exemption on the most recent certified tax roll before the foreclosure action creates a rebuttable presumption of owner occupancy. The auction bid is not automatically fair market value.

The lender may pursue a separate deficiency action unless the foreclosure court has already granted or denied a deficiency claim. The amount legally available, any contractual waiver and the deadline to seek it are different questions.

How Long Does the Lender Have to Seek a Deficiency?

Chapter 95, Florida Statutes, provides one year for the specified deficiency claim related to a note secured by a mortgage on residential property containing one to four dwelling units. The limit is not confined to a new lawsuit. In Accardi v. Regions Bank, the Fourth District applied it in 2020 to a motion within an existing foreclosure case.

The statute starts the period on the day after the clerk issues the certificate, or the day after the lender accepts a deed in lieu. The statute says “the certificate” without saying which one. Aaron Resnick checks the certificates of sale and title, the court record and applicable decisions before advising on the exact deadline.

A debt claim under an approved short sale agreement can require a different limitations analysis from a deficiency following a foreclosure judgment and sale. Do not assume that every unpaid balance expires one year after any type of sale. The signed agreement and the nature of the claim must be reviewed.

What if the Sale Produces Extra Money?

For property qualifying for the specified homestead treatment, chapter 45, Florida Statutes, requires the judgment to tell the owner that a lawyer is not required to claim surplus proceeds and to check with the clerk within 10 days after the sale. That instruction is not a universal 10 day deadline that forfeits every owner's surplus claim.

What Does Aaron Resnick Do for a Homeowner Facing Foreclosure?

Aaron Resnick defends the foreclosure case in court and negotiates with the lender at the same time. The firm's foreclosure defense services are loan modification assistance, short sale negotiation, a deed in lieu of foreclosure, and defense against the foreclosure action itself. Each plan is built on the homeowner's financial situation and goals.

• Loan modification assistance. He negotiates with the lender for a lower payment, a longer term or a reduced interest rate.
• Short sale negotiations. When keeping the home is not an option, he negotiates a short sale with the lender.
• Deed in lieu of foreclosure. He negotiates and reviews the voluntary transfer of the home to the lender as an alternative to foreclosure.
• Defense against foreclosure actions. He examines the lender's actions for legal irregularities and defends the homeowner's rights in court when necessary.
• A strategy for each homeowner. The strategy fits the homeowner's financial situation and goals, whether that means keeping the home or reaching another resolution.

Why Hire Aaron Resnick for Foreclosure Defense?

Aaron Resnick is a past president of the Miami Beach Bar Association and has been named to Florida Super Lawyers every year since 2013. He represents homeowners in foreclosure cases and reviews alternatives that address the property and the remaining debt.

• Miami business attorney Aaron Resnick of Law Offices of Aaron Resnick was announced as the main speaker at the Miami seminar Defending a Foreclosure: Helping Families Save Their Homes. The firm's archive dates the announcement January 22, 2013.

Aaron Resnick also handles Florida real estate purchases, sales and disputes, so the advice considers the property transaction and the real estate market as well as the lawsuit. Read about his work as a Miami residential real estate lawyer and a Miami real estate litigation lawyer.

What Should You Send Aaron First?

Send the summons and complaint, service dates, the note and mortgage, payment history, default letters and every court order or sale notice. Include any mortgage assistance application, proof of delivery and the servicer's response. Aaron Resnick uses those records to identify the next deadline, examine the lender's proof and assess possible alternatives.

Send the parties, the problem and the next date; the firm reviews every inquiry and tells you whether it can help. You can also reach the firm through the Contact Us page.

Aaron Resnick has handled business disputes in Miami since 1998 and is a fourth generation Miami resident. He works hands-on on every case; the client gets Aaron on every major litigation issue, not a junior partner.

We Don't Make Promises. We Have Results to Prove It.

The Law Offices of Aaron Resnick represents homeowners and property owners in Miami Dade, Broward and Palm Beach counties and across Florida in foreclosure defense, loan modifications, short sales and deeds in lieu. Call 305-672-7495 or request a consultation.

This page provides general information and is not legal advice. Prior results do not guarantee or predict a similar outcome.