Housing Services – Housing Coalition Authority

Eviction

WHAT IS THE EVICTION PROCESS IN THE STATE OF FLORIDA?

Facing foreclosure can lead to an eviction case if there are people living on the property.

An eviction in the state of Florida is a legal process brought by a landlord, property owner, or by someone on their legal behalf, to remove a tenant from the rental property. The legal process includes the filing of a lawsuit and presenting evidence to the judge to show why the judgment for eviction should be entered and the tenant removed.

The judgment for eviction orders the tenant to vacate the property; but if the tenant does not comply, then the Sheriff is hired to remove the tenant.

If after the Sheriff removes the tenant and the tenant tries to come back, they will be a trespasser.

A property owner must first give the tenant a written notice according to Florida State law and only then if the tenant doesn’t obey the written notice, the property owner can file for an eviction.

These notices could decide the reason for a tenant’s extraction process from their home.

Notice of Termination with Cause

The State of Florida, allows the property-owner the right to end a tenancy early for not complying to the written lease both parties agreed on. Before a property owner can stop tenancy, the owner must first submit an official written notice to the tenant.

Notice to Pay Rent: If rent is not paid by the lease holder, a 3-day notice to pay or vacate the property can be presented to the lease holder by the property owner. If the lease holder doesn’t vacate the property or pay rent, an eviction lawsuit may be filed by the property owner after three days (see Fla. Stat. Ann. § 83.56(3)) http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0083/Sections/0083.56.html

Notice to Cure: If the lease holder isn’t meeting their requirements with the lease agreement, the property owner may grant a 7-day grace period to comply. If agreed upon by both parties, the property owner will give the lease holder a 7-day notice to cure. Finally if the lease holder is not in compliance after 7 Days, the lease is terminated and the owner of the property has the right to file an eviction lawsuit in the State of Florida (see Fla. Stat. Ann. § 83.56(2)(b)) http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0083/Sections/0083.56.html

Florida Unconditional Quit Notice: An Unconditional Quit Notice require the lease holder to vacate the premises at the end of a 7-day period without any chance to pay rent or correct the bad behavior. The property owner can than continue with the eviction process without further notice. The State of Florida, allows this notice if the lease holder;

• Destroys the rental property or other lease holder’s property.

• Purposely disturbs the tranquility of the property.

• The continuing compliance failure within a 12-month period of a written warning.

This notice informs the lease holder must vacate the premises within 7-days of receipt or the property-owner will resume with the eviction lawsuit (see Fla. Stat. Ann. § 83.56(2)(b)) http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0083/Sections/0083.56.html

Termination Without Cause Notice

Rental Lease Agreements on Month-to-Month basis

If a lease holder has a month-to-month lease agreement payable on a monthly basis, the property-owner can end the agreement even if there is no cause for termination. The property-owner can give a 15 days’ written notice, to notify the lease holder. The lease holder than has 15 days to vacate the property. (see Fla. Stat. Ann. § 83.56(2)(b)) http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0083/Sections/0083.56.html

Permanent/Fixed-Term Lease

Any lease agreement that is for a fixed term, for example 12-month or 3-months must be completed before the property owner can end the lease without cause. It is important to note, that the property owner is not necessarily required to give the property owner notice to vacate once the fixed term is up. The lease holder may be expected to vacate.

Defenses Notice for Tenant Eviction

A lease holder may contest an eviction. If a lease holder challenges the eviction, this may possibly delay settlement of the lawsuit in court. If the lease holder is able to provide acceptable defenses, such as:

•The property-owner faultily served a notice

•Property-owner neglected to maintain the property per the lease agreement.

•Prejudice/Discrimination against the lease holder, which should have been documented.

Please reference Tenant Defenses to Eviction Notices in Florida for more information.

Tenant Preliminary Removal Notice

Only after the property owner is awarded an eviction lawsuit can a tenant be removed from a property. Only a sheriff can force a lease holder out of a property. It’s illegal in the in the State of Florida for a property-owner to personally remove a previous lease holder. If personal property is left or abandoned, Florida law requires the property owner to give a 10-day notice to claim their property. During which time the prior lease holder can be charged a storage fee. If the property is not claimed within the allotted time per notice, the property-owner has the right to dispose the abandoned property or sell the items (see Fla. Stat. Ann. § § 715.10–111) http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0715/0715.html

Surplus

WHAT ARE OVERAGES AND MORTGAGE SURPLUS FUNDS?

According to HCA, “Florida Surplus Funds” is defined as the funds remaining post payment of all monetary disbursements required by the final judgment of the foreclosure and is typically shown on the certificate of disbursements as stated by the Florida Statute 45.032.

Example:

If you, the homeowner, owes $150,000 on your mortgage to the bank and your home was sold at a foreclosure sale for $200,000, our team at HCA in association with Home Funding Advisor helps you recover $50,000 of surplus funds/money (Foreclosure Surplus Funds) that was leftover from the sale of the property before the claim period expires.

At “HCA” we know how important it is to expedite the surplus funds, file the necessary paperwork, and set court hearings to prevent forfeiture to the government… We understand the foreclosure was not your fault, or under your power and it should not cause you to lose money.

We believe that If the bank sells your home, the surplus funds belong to you and only you!!

As documented by leg.state.fl.us, “45.032 Disbursement of Surplus funds after judicial sale states the following:

Section 1

(1) For purposes of ss. 45.031-45.035, the term:

(a) “Owner of record” means the person or persons who appear to be owners of the property that is the subject of the foreclosure proceeding on the date of the filing of the lis pendens. In determining an owner of record, a person need not perform a title search and examination but may rely on the plaintiff’s allegation of ownership in the complaint when determining the owner of record.

(b) “Subordinate lienholder” means the holder of a subordinate lien shown on the face of the pleadings as an encumbrance on the property. The lien held by the party filing the foreclosure lawsuit is not a subordinate lien. A subordinate lienholder includes, but is not limited to, a subordinate mortgage, judgment, tax warrant, assessment lien, or construction lien. However, the holder of a subordinate lien shall not be deemed a subordinate lienholder if the holder was paid in full from the proceeds of the sale.

(c) “Surplus funds” or “surplus” means the funds remaining after payment of all disbursements required by the final judgment of foreclosure and shown on the certificate of disbursements.

Section 2

(2) There is established a rebuttable legal presumption that the owner of record on the date of the filing of a lis pendens is the person entitled to surplus funds after payment of subordinate lien holders who have timely filed a claim. A person claiming a legal right to the surplus as an assignee of the rights of the owner of record must prove to the court that such person is entitled to the funds. At any hearing regarding such entitlement, the court shall consider the factors set forth in s. 45.033 in determining whether an assignment is sufficient to overcome the presumption. It is the intent of the Legislature to abrogate the common law rule that surplus proceeds in a foreclosure case are the property of the owner of the property on the date of the foreclosure sale.

Section 3

(3) During the period that the clerk holds the surplus pending a court order:

(a) If the owner of record claims the surplus before the date that the clerk reports it as unclaimed and there is no subordinate lienholder, the court shall order the clerk to deduct any applicable service charges from the surplus and pay the remainder to the owner of record. The clerk may establish a reasonable requirement that the owner of record prove his or her identity before receiving the disbursement. The clerk may assist an owner of record in making a claim. An owner of record may use the following form in making a claim.

(b) If any person other than the owner of record claims an interest in the proceeds prior to the date that the clerk reports the surplus as unclaimed or if the owner of record files a claim for the surplus but acknowledges that one or more other persons may be entitled to part or all of the surplus, the court shall set an evidentiary hearing to determine entitlement to the surplus. At the evidentiary hearing, an equity assignee has the burden of proving that he or she is entitled to some or all of the surplus funds. The court may grant summary judgment to a subordinate lienholder prior to or at the evidentiary hearing. The court shall consider the factors in s. 45.033 when hearing a claim that any person other than a subordinate lienholder or the owner of record is entitled to the surplus funds.

(c) One year after the sale, any surplus remaining with the clerk of the court that has not been disbursed as provided herein is presumed unclaimed as set forth in s. 717.113 and must be reported and remitted to the department in accordance with ss. 717.117 and 717.119, unless there is a pending court proceeding regarding entitlement to the surplus. At the conclusion of any court proceeding and any appeal regarding entitlement to the surplus, the clerk of the court shall report and remit the unclaimed property to the department if directed by a court order, to another entity if directed by the court order, or, if not directed by the court order, to the owner of record. For purposes of establishing entitlement to the surplus after the property has been remitted to the department, only the owner of record reported by the clerk of the court, or the beneficiary, as defined in s. 731.201, of a deceased owner of record reported by the clerk, is entitled to the surplus. A surplus of less than $10 escheats to the clerk.

Section 4

(4) Proceedings regarding surplus funds in a foreclosure case do not in any manner affect or cloud the title of the purchaser at the foreclosure sale of the property.

History. —s. 2, ch. 2006-175; s. 1, ch. 2007-106; s. 3, ch. 2018-71.”.

“Online Sunshine.” The Florida Legislature, 1995-2020, http://www.leg.state.fl.us.

Foreclosure

What is the Foreclosure Process in Florida?

There are 2 types of foreclosures, Nonjudicial and Judicial. In Florida, foreclosures are considered judicial, meaning that the lender (the plaintiff) is required to file a lawsuit in the Florida State Courts.

The plaintiff’s attorney begins the process by filing for foreclosure and recording a complaint with the Florida State Courts.

The borrower is then served with a subpoena that provides twenty days to file an answer.

Home Mortgage

Buying a home for many Americans means getting a loan or borrowing money from a bank to make their purchase possible.

People who take out a loan to purchase a residential property in Florida usually sign a promissory note and a mortgage. The loan terms are spelled out in the promissory note, or a real estate lien note. This is a written promise to repay a specified sum of money plus interest at a specified rate and length of time to satisfy the promise.

The Mortgage is a separate document used during the purchase process; the mortgagor/ borrower of the funds is pledging the property as collateral to the lender and establishes an interest in the property.

Consequences for Missing Due Dates on Your Mortgage Payments

Although policies can change due to uncontrollable circumstances like the Covid-19 Pandemic, or new laws passed by Congress, typically, failure to not make a mortgage payment on time has consequences.

Delayed payments or failure to pay your mortgage on time, will cause additional fees.

Many loans contain a grace period of 10 to 15 days per a late fee.

Each month you don’t pay your mortgage, your lending institution will charge you a late fee, typically found on your mortgage statement.

If you are more than 120 days behind, a foreclosure lawsuit can be filed.

Florida mortgage laws mandate the bank to contact the borrower through phone and in writing throughout the pre-foreclosure timeframe. (12 C.F.R. § 1024.39).

A foreclosure may be accelerated in the State of Florida if a case is unchallenged or when a borrower doesn’t have a legitimate reason to challenge the foreclosure.

If you have any questions, or to learn more, call our office at (888) 234-1812. Our team is here to help you during this process.

Foreclosure Sale Process in the State of Florida

When a lender gets a judgment of foreclosure, the court schedules a sale of the property not less than 20 days, but no more than 35 days, after the judgment (unless the plaintiff or plaintiff’s attorney consents to additional time).

Know the Law in the State of Florida when it comes to (Fla. Stat. § 45.031).

According to leg.state.fl.us, Fla. Stat. § 45.031, Florida Foreclosure details go as follows:
“45.031 Judicial sales procedure. In any sale of real or personal property under an order or judgment, the procedures provided in this section and ss. 45.0315-45.035 may be followed as an alternative to any other sale procedure if so ordered by the court.

FINAL JUDGMENT

(1)
(a) In the order or final judgment, the court shall direct the clerk to sell the property at public sale on a specified day that shall be not less than 20 days or more than 35 days after the date thereof, on terms and conditions specified in the order or judgment. A sale may be held more than 35 days after the date of final judgment or order if the plaintiff or plaintiff’s attorney consents to such time. The final judgment shall contain the following statement in conspicuous type:
IF THIS PROPERTY IS SOLD AT PUBLIC AUCTION, THERE MAY BE ADDITIONAL MONEY FROM THE SALE AFTER PAYMENT OF PERSONS WHO ARE ENTITLED TO BE PAID FROM THE SALE PROCEEDS PURSUANT TO THIS FINAL JUDGMENT.
IF YOU ARE A SUBORDINATE LIENHOLDER CLAIMING A RIGHT TO FUNDS REMAINING AFTER THE SALE, IF ANY, YOU MUST FILE A CLAIM WITH THE CLERK NO LATER THAN THE DATE THAT THE CLERK REPORTS THE FUNDS AS UNCLAIMED. IF YOU FAIL TO FILE A TIMELY CLAIM, YOU WILL NOT BE ENTITLED TO ANY REMAINING FUNDS.
(b) If the property being foreclosed on has qualified for the homestead tax exemption in the most recent approved tax roll, the final judgment shall additionally contain the following statement in conspicuous type:
IF YOU ARE THE PROPERTY OWNER, YOU MAY CLAIM THESE FUNDS YOURSELF. YOU ARE NOT REQUIRED TO HAVE A LAWYER OR ANY OTHER REPRESENTATION AND YOU DO NOT HAVE TO ASSIGN YOUR RIGHTS TO ANYONE ELSE IN ORDER FOR YOU TO CLAIM ANY MONEY TO WHICH YOU ARE ENTITLED. PLEASE CHECK WITH THE CLERK OF THE COURT, (INSERT INFORMATION FOR APPLICABLE COURT) WITHIN TEN (10) DAYS AFTER THE SALE TO SEE IF THERE IS ADDITIONAL MONEY FROM THE FORECLOSURE SALE THAT THE CLERK HAS IN THE REGISTRY OF THE COURT.

IF YOU DECIDE TO SELL YOUR HOME OR HIRE SOMEONE TO HELP YOU CLAIM THE ADDITIONAL MONEY, YOU SHOULD READ VERY CAREFULLY ALL PAPERS YOU ARE REQUIRED TO SIGN, ASK SOMEONE ELSE, PREFERABLY AN ATTORNEY WHO IS NOT RELATED TO THE PERSON OFFERING TO HELP YOU, TO MAKE SURE THAT YOU UNDERSTAND WHAT YOU ARE SIGNING AND THAT YOU ARE NOT TRANSFERRING YOUR PROPERTY OR THE EQUITY IN YOUR PROPERTY WITHOUT THE PROPER INFORMATION. IF YOU CANNOT AFFORD TO PAY AN ATTORNEY, YOU MAY CONTACT (INSERT LOCAL OR NEAREST LEGAL AID OFFICE AND TELEPHONE NUMBER) TO SEE IF YOU QUALIFY FINANCIALLY FOR THEIR SERVICES. IF THEY CANNOT ASSIST YOU, THEY MAY BE ABLE TO REFER YOU TO A LOCAL BAR REFERRAL AGENCY OR SUGGEST OTHER OPTIONS. IF YOU CHOOSE TO CONTACT (NAME OF LOCAL OR NEAREST LEGAL AID OFFICE) FOR ASSISTANCE, YOU SHOULD DO SO AS SOON AS POSSIBLE AFTER RECEIPT OF THIS NOTICE.

(c) A copy of the final judgment shall be furnished by the clerk by first class mail to the last known address of every party to the action or to the attorney of record for such party. Any irregularity in such mailing, including the failure to include this statement in any final judgment or order, shall not affect the validity or finality of the final judgment or order or any sale held pursuant to the final judgment or order. Any sale held more than 35 days after the final judgment or order shall not affect the validity or finality of the final judgment or order or any sale held pursuant to such judgment or order.

PUBLICATION OF SALE

(2)
Notice of sale shall be published once a week for 2 consecutive weeks in a newspaper of general circulation, as defined in chapter 50, published in the county where the sale is to be held. The second publication shall be at least 5 days before the sale. The notice shall contain:
(a) A description of the property to be sold.
(b) The time and place of sale.
(c) A statement that the sale will be made pursuant to the order or final judgment.
(d) The caption of the action.
(e) The name of the clerk making the sale.
(f) A statement that any person claiming an interest in the surplus from the sale, if any, other than the property owner as of the date of the lis pendens must file a claim before the clerk reports the surplus as unclaimed.
The court, in its discretion, may enlarge the time of the sale. Notice of the changed time of sale shall be published as provided herein.

CONDUCT OF SALE

(3)

The sale shall be conducted at public auction at the time and place set forth in the final judgment. The clerk shall receive the service charge imposed in s. 45.035 for services in making, recording, and certifying the sale and title that shall be assessed as costs. At the time of the sale, the successful high bidder shall post with the clerk a deposit equal to 5 percent of the final bid. The deposit shall be applied to the sale price at the time of payment. If final payment is not made within the prescribed period, the clerk shall re-advertise the sale as provided in this section and pay all costs of the sale from the deposit. Any remaining funds shall be applied toward the judgment.

CERTIFICATION OF SALE

(4)

After a sale of the property the clerk shall promptly file a certificate of sale and serve a copy of it on each party in substantially the following form:

The undersigned clerk of the court certifies that notice of public sale of the property described in the order or final judgment was published in , a newspaper circulated in County, Florida, in the manner shown by the proof of publication attached, and on , (year) , the property was offered for public sale to the highest and best bidder for cash. The highest and best bid received for the property in the amount of $ x was submitted by x, to whom the property was sold. The proceeds of the sale are retained for distribution in accordance with the order or final judgment or law. WITNESS my hand and the seal of this court on x, xx (year) .

CERTIFICATE OF TITLE

(5)

If no objections to the sale are filed within 10 days after filing the certificate of sale, the clerk shall file a certificate of title and serve a copy of it on each party in substantially the following form:

The undersigned clerk of the court certifies that he or she executed and filed a certificate of sale in this action on , (year) , for the property described herein and that no objections to the sale have been filed within the time allowed for filing objections.

CONFIRM RECORDING

(6)

When the certificate of title is filed the sale shall stand confirmed, and title to the property shall pass to the purchaser named in the certificate without the necessity of any further proceedings or instruments. The certificate of title shall be recorded by the clerk.

DISBURSEMENTS

(7)
(a) On filing a certificate of title, the clerk shall disburse the proceeds of the sale in accordance with the order or final judgment and shall file a report of such disbursements and serve a copy of it on each party, and on the Department of Revenue if the department was named as a defendant in the action or if the Department of Economic Opportunity or the former Agency for Workforce Innovation was named as a defendant while the Department of Revenue was providing reemployment assistance tax collection services under contract with the Department of Economic Opportunity or the former Agency for Workforce Innovation through an interagency agreement pursuant to s. 443.1316.
(b) The certificate of disbursements shall be in substantially the following form:
(Caption of Action)

CERTIFICATE OF DISBURSEMENTS

The undersigned clerk of the court certifies that he or she disbursed the proceeds received from the sale of the property as provided in the order or final judgment to the persons and in the amounts as follows:
IF YOU ARE A PERSON CLAIMING A RIGHT TO FUNDS REMAINING AFTER THE SALE, YOU MUST FILE A CLAIM WITH THE CLERK NO LATER THAN THE DATE THAT THE CLERK REPORTS THE FUNDS AS UNCLAIMED. IF YOU FAIL TO FILE A CLAIM, YOU WILL NOT BE ENTITLED TO ANY REMAINING FUNDS. AFTER THE FUNDS ARE REPORTED AS UNCLAIMED, ONLY THE OWNER OF RECORD AS OF THE DATE OF THE LIS PENDENS MAY CLAIM THE SURPLUS.
(c) If no objections to the report are served within 10 days after it is filed, the disbursements by the clerk shall stand approved as reported. If timely objections to the report are served, they shall be heard by the court. Service of objections to the report does not affect or cloud the title of the purchaser of the property in any manner.
(d) If there are funds remaining after payment of all disbursements required by the final judgment of foreclosure and shown on the certificate of disbursements, the surplus shall be distributed as provided in this section and ss. 45.0315-45.035.

VALUE OF PROPERTY

(8)

The amount of the bid for the property at the sale shall be conclusively presumed to be sufficient consideration for the sale. Any party may serve an objection to the amount of the bid within 10 days after the clerk files the certificate of sale. If timely objections to the bid are served, the objections shall be heard by the court. Service of objections to the amount of the bid does not affect or cloud the title of the purchaser in any manner. If the case is one in which a deficiency judgment may be sought and application is made for a deficiency, the amount bid at the sale may be considered by the court as one of the factors in determining a deficiency under the usual equitable principles.

EXECUTION SALES

(9)

This section shall not apply to property sold under executions.

ELECTRONIC SALES

(10)

The clerk may conduct the sale of real or personal property under an order or judgment pursuant to this section by electronic means. Such electronic sales shall comply with the procedures provided in this chapter, except that electronic proxy bidding shall be allowed, and the clerk may require bidders to advance sufficient funds to pay the deposit required by subsection (3). The clerk shall provide access to the electronic sale by computer terminals open to the public at a designated location and shall accept an advance credit proxy bid from the plaintiff of any amount up to the maximum allowable credit bid of the plaintiff. A clerk who conducts such electronic sales may receive electronic deposits and payments related to the sale.
“Online Sunshine.” The Florida Legislature, 1995-2020, http://www.leg.state.fl.us.