Is there a way to prolong a foreclosure process? I need an extra 1-2 months!

[busbis]

I was issues a summons today for foreclosure process in the state of FL. This is a surrender in our bk. I have someone in my property until the end of June and I'm afraid that the foreclosure may happen before then. I have a right to answer this summons if I am disputing anything, but I need help with what I can say. I have 20 days to respond and that will put a hold on everything until the lender answers me. I thought this might by some time may another month or 2. The lender failed to give me any Truth in Lending disclosure so figure maybe I can dispute that and ask for a copy. I know it doesn't mean much, but I just want the process held up for a while. Any thoughts?

[HHM]

You should be ok, from what I have been reading, FL foreclosure takes about 3-6 months anyway.

In any event, a foreclosure complaint is no different than any other civil complaint, you can simply respond with a general denial. Once you file an answer, the hearing is set before a judge. The TILA stuff you are talking about would, strictly speaking, be a counter claim. The problem you run into there, is that the local court in which the foreclosure is pending probably does not have jurisdiction to hear the TILA violation (TILA is a federal law and you would be required to file a complaint in federal court).

What is the status of your BK? Is there any particular reason you cannot go ahead and file BK. Also, the foreclosure does not really effect the tenant assuming the tenant is also aware they will be moving out in June.

[Rover]

For maximum delay, file a Motion to Dismiss and a Motion for More Definite Statement before filing an answer.

To get some ideas regarding what should be in the motions, go to your county's Clerk of Court's web and look at the upcoming foreclosure sales. Find the ones that have taken the longest to foreclose and look at the court records on the web site to see what was filed in those cases. The first two digits of the case numbers tell you the year the foreclosure was filed. Look for "04" or earlier.

Write down the case numbers of the foreclosures that look like they might have motions you would want to copy. Then, go to the courthouse where the files are kept in your county and pull the files. Make copies of the motions and answers that look like they would provide you with what you need.

What county are you in?

[busbis]

The property is in Bay Co. My bk (13) is awaiting confirmation, which was postponed 1 full month, so now it is set for 3/24. The tenents don't know about the bk/foreclosure because I figured by time it got around to the foreclosure they would be out. I'm just afraid that maybe I misjudged the time frame. I read the process takes about 4-6 months and they began on Feb 12. But I did see 1 case where it has only taken 90 days, so it scared me a bit.

[busbis]

For maximum delay, file a Motion to Dismiss and a Motion for More Definite Statement before filing an answer.

To get some ideas regarding what should be in the motions, go to your county's Clerk of Court's web and look at the upcoming foreclosure sales. Find the ones that have taken the longest to foreclose and look at the court records on the web site to see what was filed in those cases. The first two digits of the case numbers tell you the year the foreclosure was filed. Look for "04" or earlier.

Write down the case numbers of the foreclosures that look like they might have motions you would want to copy. Then, go to the courthouse where the files are kept in your county and pull the files. Make copies of the motions and answers that look like they would provide you with what you need.

What county are you in?

Also, can I file a motion to dismiss if I am surrendering in a bankruptcy?

[HHM]

Wait a second...

Let's back-up...you are in an active 13 awaiting confirmation?

I assume then that the mortgage company filed a motion to lift the automatic stay in your BK to proceed with the foreclosure. I think you need to tread lightly here with trying to delay foreclosure as any action you take to merely delay foreclosure could be seen as bad faith (after all, you ARE surrendering the house in BK).

With an open BK, I would probably not file a Motion to Dismiss unless you really had a good faith basis for the dismissal. You can probably file the Motion for more definite statement, but you really need to go look-up what that means...when you file that motion, what you are telling the court is that the plaintiff's complaint lacks sufficient information for you to even figure out how to answer the complaint...I would imagine it would be difficult to file that with a straight face since foreclosure complaints are fairly straightforward (usually court approved) form documents.

What is the big deal with the tenant, just give them a 30 day notice to vacate.

[One Half Full]

I talked to my lawyer about this in the initial meeting. She is willing to help with the letter, and whatever other motions need to be filed. Since the forclosure is part of the BK, she is doing the paperwork along with the other stuff she is getting paid for. She says she can squeeze out nearly a year of free living in the house. I'm going for it. This is the first time in ten years that I have been able to put away any money, and I intend to take advantage of the situation.

[busbis]

Makes sense HHM...thanks for all your help.

[Rover]

[B]

Also, can I file a motion to dismiss if I am surrendering in a bankruptcy?

I think you can. The foreclosure and the bankruptcy are two separate issues that need to be dealt with separately.

If you take the time to go to the courthouse and pull some foreclosure case files and look at the Motions to Dismiss and Motions for a More Definite Statement written by attorneys, you will quickly see that "good faith" and a "straight face" have nothing to do with what attorneys put into such motions. In foreclosure cases, almost always those motions contain statements and claims that we lay people would consider outlandish. But attorneys know that (sad to say) our legal system is very much a game, and if you take the time to play the game, things can work better for you.

In any event, the bottom line is that in Florida if you need to delay a foreclosure past June, you shouldn't have any problem if you take the right action. And, in my opinion, if the bank is foreclosing even though you are surrendering, you should fight the foreclosure with everything at your disposal.

Finally, are you and One Half Full related in this issue? If not, I'm a little confused by One Half Full's post.

[busbis]

no relation at all.

[Rover]

I think you can. The foreclosure and the bankruptcy are two separate issues that need to be dealt with separately.

On second thought and after some research, if you are surrendering the property, HHM's advice to go easy in fighting the foreclosure may very well be right. See an attorney on this one.

[HHM]

LOL, I got a couple posts mixed up and accidentally posted some comments related to this thread, but in another thread
Here are the two comments I posted in another thread that should have been posted here...they are a little out of context so don't mind the tone.

Foreclosure is enforcement of a lien, not necessarily a breach of contract action (if they seek a deficiency balance, that would be a contract claim).

But here is your big problem with trying to "game" the system. You filed CHAPTER 13 and in those pleadings, you admitted that you owe this creditor, and that you are surrendering the house. Moreover, presumably, the creditor filed a motion to lift the automatic stay, and you probably did not oppose that motion. The actions are related in that the creditors attorney can pull your chapter 13 documents and introduce them as evidence in the foreclosure case.

Imagine yourself before the judge at the foreclosure, and the judge asks you.
You filed chapter 13 on "x" date?
In those documents, you said you owed "xyz" creditor "X" amount of money?
In those documents, you said that "xyz" creditor had a lien on your home?
and in those documents you state an intention to surrender the home?
Your chapter 13 makes no plan to cure the arrears?
Have you amended your plan to cure the arrears?
So on and so forth

Do you see where I am going with this?

Let me ask you this...are you hiding the rental income you are receiving from this tenant from the chapter 13. If not, then I am not sure what the big deal is about delaying the foreclosure, simply give your tenant a standard 30 day notice.

You are trying to delay a foreclosure, but in your chapter 13 you have already "admitted" that this lender is your creditor, that they have a lien, and that you are surrendering you home. What defense do you really have to the foreclosure.

Your BK petition is a sworn document...any attorney that can pass a bar exam will easily make mince-meat out of your attempt to delay the foreclosure because of your chapter 13. You cannot go in front of the BK court saying, "yes, I owe this creditor money, they have a lien on my house, and I am surrendering my house", then go before the foreclosure court and say "I don't know who this creditor is, I don't owe them the money, they don't have a lien on my home".

Now, if there is truly a technical deficiency with the lenders complaint for foreclosure and supporting documentation, sure, file whatever you need to file. Also, if you have a valid TILA claim, and assuming you want to spend the money, you can file the TILA complaint in federal court and try to have the federal court issue a temporary injunction against the foreclosure action. (but, keep in mind, the TILA claim would be part of your BK estate).

[busbis]

No, I understand HHM where you are taking me with this and it makes perfect sense. I don't want to file a TILA claim, I just thought that maybe it could help delay the process a bit. I really think that I will be fine. The tenant moves out June 1 the county is still serving summons to all parties.

But can you answer this for me...

The mortgage company put the past due amount (2 months prior to filing date) as part of a secured claim. Do I still have to pay this portion of the claim assuming they never amend the original claim once foreclosed on. The principal loan bal was $340,000 at time of filing, but the claim seperated as $5353 which includes the interest and late fees then $340,000 for principal bal, total claim $345353.