Florida Foreclosure Mediation:
Partially Repealed But Still Exists
In late 2009, the Florida Supreme Court created a mandatory Florida Foreclosure Mediation program for homeowners facing foreclosure lawsuits although the program only applied to a primary residence and homestead property. Despite the program’s good intentions, budget cuts and insufficient staffing have forced an end to this effort and there’s nothing imminent to replace it.
However foreclosure mediation is still an option (but no longer mandatory) under the Florida Rules of Civil Procedure so once you get sued with a foreclosure lawsuit in Florida, you’re automatically entitled to a foreclosure mediation with an impartial mediator before the case goes to final hearing. All you have to do is ask for it by filing a Request for Mediation with the judge presiding over your case. Florida Foreclosure Process
At the foreclosure mediation, you’ll have a chance to meet directly with the lender to explain your circumstances and plan for resolution of the foreclosure lawsuit together with input from an experienced mediator who can also help keep things calm and professional. Dangers of Foreclosure Stress
How Foreclosure Mediation Works
As mentioned earlier the foreclosure mediation process begins with the filing of a Request for Mediation at some point after you’re formally served with a foreclosure lawsuit. The court mediation office then contacts both sides to schedule foreclosure mediation which will likely be set well in the future due to the heavy backlog of existing cases. More on Foreclosure Lawsuits
Delay should not be a problem as it gives you more time to review your Foreclosure Options and save money while at the same time showing the court and your lender that you’re working hard to save your home. Because there can’t be a final hearing and therefore no foreclosure sale until mediation is held, its almost always a good idea to formally request foreclosure mediation within a few weeks of getting the foreclosure lawsuit.
Because of the huge number of pending foreclosure lawsuits in Florida, its your job to remember deadlines and stay in touch with the clerk of court to be sure your case doesn’t slip through the cracks. To be safe, if you don’t hear from the court mediation office within a month or two of sending in the Request for Mediation contact the clerk of court or mediation office directly. Always be sure to confirm mediation or any cancellations and make sure everyone gets copies of whatever you file so the lender can’t use the lack of formal notice to avoid attending foreclosure mediation .
Once the mediation is scheduled, you can go alone or with an attorney. The bank will always have its attorney present so try to hire a qualified lawyer if you can afford to so you’re ready to “fight fire with fire.” If you can’t afford it, don’t worry. Mediation is very informal and you’ll have the chance to present your case to both the lender and mediator as well as meeting with the mediator privately for confidential discussions.
What You’re Trying to Accomplish in Foreclosure Mediation
Remember to identify what you’re trying to accomplish at mediation and plan to make it work. If you’re defending the foreclosure lawsuit and possibly counter-suing because of defective title or other legal issues, prepare your case so you can convince the lender and mediator that you’ll win at trial. Bring the documents that support your argument and prepare a brief summary for the mediator which outlines your best stuff. Although the mediation is non-binding — meaning that both parties have to agree on a settlement unlike trial where the court decides — making a strong case at foreclosure mediation will more likely result in settlement.
If you’re defending your own Foreclosure Lawsuit, the main goal is to get the foreclosure lawsuit dismissed “with prejudice” meaning it can’t be re-filed by the lender. However, you may also be entitled to rescission of the loan documents in which you own the property free and clear of that mortgage and/or additional damages as a result of the lenders actions. Be sure to read our section on Defending Florida Foreclosure Lawsuits for more information and consult with an experienced attorney whenever possible.
If you’re in the foreclosure lawsuit as part of a Strategic Default to help get your loan modified or short sale approval, the same rules apply. Be prepared to convince everyone in the foreclosure mediation that your mortgage is underwater and that your financial circumstances justify help. Be sure to read our sections on Foreclosure Short Sale and Foreclosure Loan Modification for more information.
If all else fails, remember that a Deed in Lieu of Foreclosure is a much better solution than a long and stressful foreclosure lawsuit for both you and the lender so be prepared for other foreclosure alternatives as a back up to your primary plan. Read our section on Deed in Lieu of Foreclosure and make sure the lender agrees to waive any resulting deficiency balance and not to pursue a Deficiency Judgment if you decide on this option.