When you purchased your property you signed a Mortgage and a Note. The Mortgage pledges the property as security for the debt and the debt is determined pursuant to the terms of the Note.

The Note is your promise to pay and the Mortgage is the tool the lender uses to take back your property if you do not pay.

As the borrower, you have promised to make your mortgage payments, pay your taxes, insurance and your homeowner association fees. If you fail to make these payments, your lender may declare you in default of your mortgage. Declaring that you are in default is the beginning of the foreclosure process.

If you are in default on your mortgage the lender may foreclose on your property by filing a lawsuit in the Circuit Court in the county where the property is located.

You must be served with notice of the lawsuit and you will be given an opportunity to appear and defend your rights. However, the Foreclosure process is an in-rem proceeding, meaning that the lender can obtain service without having to personally serve you. Additionally, if you fail to timely respond or fail to appear for Court appearances, you may lose any and all defenses you may have to foreclosure. Once the lender has “served” the foreclosure suit, it must show that you are in default of your Note.

Most of the law on the subject of foreclosures is found within cases that have been decided before judges since the Florida legislature has passed very few statutes regulating foreclosures. In Florida, you are not guaranteed to a jury trial in a foreclosure action. Your case may be tried before a judge without a jury. If you have counter-claims, the court may sever them from the foreclosure action and so that they may be tried before a jury, but that does not guaranty you the right to a trial before a jury on the original foreclosure action.

Once the lender has proven that you have defaulted, the Court will order a foreclosure sale. A sale of your property can only be set aside if there is an error in the procedure. But, it cannot be set aside due to a low sale price. The court order commanding foreclosure will specify how the foreclosure must take place.