In Florida, a mortgage foreclosure action will not automatically result in a deficiency judgment. In other words, just because you lose property in foreclosure does not mean you will remain personally liable for money owed to the lender. To obtain a deficiency judgment against the borrower after the foreclosure sale, the mortgage lender must file a motion for a deficiency and allege the property’s value and the amount of the deficiency. The homeowner can defend the motion and can contest the lender’s valuation. If the homeowner files a defense the court must hold a separate hearing on the lender’s request for deficiency liability.
At a hearing on a motion for deficiency judgment, the mortgage lender has to show the court evidence that the property’s value on the sale date was less than balance owed on the note. Evidence of value requires the lender to produce an expert value witness. However, the homeowner/borrower can base her/his own value upon his/her own appraisal, or, use the local government’s tax assessed value as evidence of value. The borrower can bring to the hearing his own valuation expert. If the court finds that the foreclosed property was worth more than note balance on sale date the court will not give the mortgage lender a deficiency judgment against the borrower. A 2013 Florida statute gives the mortgage lender one year to file a motion for deficiency. Under the old law a lender could file a new and separate claim for deficiency up to five years after the foreclosure sale date.
If you have been served in a lawsuit recently by Dyck-O’Neal, you are not alone. This debt collector has purchased rights to older claims and is filing suit to establish a deficiency judgment from the lender that previously foreclosed and are trying to collect pennies on the dollar. The public records show that they are serving individuals throughout the state of Florida in order to obtain deficiency judgments against consumers. Dyck-O’Neal is being represented in many of these cases by The Law Offices of Daniel C. Consuegra.
What is a deficiency judgment
For those individuals who have had a foreclose judgment entered against them before July of 2013, the foreclosing lender had five (5) years to seek a deficiency judgment. However, the statutes were amended to reflect that all foreclosure judgment creditors have until July 2014 to enforce the deficiency judgment.
Florida homeowners that had faced foreclosure, and perhaps lost or simply did not defend their suit, are now in a panic. After being served, it is hard to make an informed decision regarding this matter. Sure, you may now be doing much better than you were at the time the judgment was entered. This is what Dyck O’Neal is counting on. While you can see from my other posts, there are defenses to foreclosure cases, and there are also defenses to deficiency judgments, but to put it succinctly fighting a deficiency in court adds to the amount the bank will seek against you. If they do get a judgment, they will then try to garnish your wages or attach liens against your personal property or garnish wages. It is important that you understand that a settlement, and not a final hearing, may be in your best interest.
An attorney can help in a settlement negotiation on lawsuits for a deficiency judgment. If you have recently been served with a lawsuit filed by Dyck-O’Neal and would like to know your options, please contact my office at 888-877-5103 or email me to set up a consultation.