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Can I short sale my house if it is in foreclosure in Florida?

A common question asked by a Florida homeowner in foreclosure is, “Can I short sale my house if it is in foreclosure in Florida?”. 

The simple answer is YES.

First you must understand the foreclosure process. Simply stated, a borrower/homeowner failed to make their mortgage payments. So the bank says, enough is enough, either you make good with your past due debt, or we will file suit and take the property away from you. The bank has the right to file a foreclosure action once a homeowner is “seriously delinquent” meaning three (3) consecutive mortgage payments have been missed.

Once a homeowner is served foreclosure papers, they should immediately reach out to an attorney specializing in foreclosure defense. If a homeowner does not seek legal counsel, the possibility of losing the house through the court system can be extremely quick. However, the skills and knowledge that a foreclosure defense attorney has will not only defend you in the court but also help mitigate possible damages if the property is to be sold at a foreclosure sale.

While the attorney is defending you in the court, he/she is also working simultaneously with the bank to mitigate damages. If you are unable to obtain a loan modification (for whatever the reason), a short sale is your best option.  Your realtor will work directly with your attorney and get you the best offer for the property. On top of that, the attorney will negotiate with the bank to request a “waiver of deficiency”.  This simple clause will save the homeowner a lot of headache in the future. The bank will not be able to seek the difference owed in a short sale process.

At The Hershey Law Firm, P.A. our clients have the benefit of working directly with a seasoned real estate attorney who is also a licensed realtor associate to guide them through the entire process. 

For questions about real estate law in South Florida, please contact The Hershey Law Firm, P.A  at (954) 303-9468 in Fort Lauderdale to schedule your free consultation.



Mistakes and Misunderstandings about Florida Foreclosure

A foreclosure action is a civil lawsuit. The lender or bank is the Plaintiff and homeowner/borrower is the primary Defendant. The Plaintiff has the burden of proof.


When a foreclosure case is defended, the lender must prove every element with admissible evidence to prove that the homeowner executed the original mortgage and note and that each time ownership of the mortgage was transferred all legal formalities were complied with and the note was properly assigned and recorded. The lender may also have to prove that proper disclosures were made to the homeowner/borrower prior to the real estate closing where the loan documents were signed.

Although a homeowner enters foreclosure due to lack of payment, it does not mean they are powerless to take on the large banks. Banks make mistakes all the time. Since the real estate crash many banking giants/lending institutions (Countrywide, Wachovia, Washington Mutual, Lehman Brothers, Fannie Mae, and Freddie Mac) have gone bankrupt, were taken over by the government, or taken over by the FDIC and sold to other banks. Throughout the process of selling the loans from one bank to another, proper formalities with respect to the sale and transfer of the loan were not complied with.

Lenders and mortgage brokers created a “bubble” controlling the real estate market and assumed market prices would continue going up. They would  offer Americans loans that they knew the borrower was not qualified to obtain and did not have sufficient income to repay.  Once the A.R.M (adjustable rate mortgage) adjusted, the homeowner was unable to make their monthly payment thus causing the homeowner default. More often than not the mortgage brokers were more concerned with commission then the best interest of the homeowner.

The banks have thousands of foreclosure cases pending in Miami-Dade, Broward and Palm Beach counties.  The law firms representing the banks have such an enormous case load that the attorney handling your case for the bank cannot devote much time specifically to your case. This is a benefit to homeowner who has retained an experienced foreclosure defense attorney. The banks typically focus their attention on the unrepresented homeowners.

For questions about real estate law in South Florida, please contact The Hershey Law Firm, P.A  at (954) 303-9468 in Fort Lauderdale to schedule your free consultation.