THE BANK SAID MY FORECLOSURE SALE WILL BE NEXT WEEK! HELP!

By Shawn M. Yesner, Esq. Yesner & Boss, PL

We often receive frantic calls from homeowners because they called their bank after having been served with a foreclosure lawsuit, only to hear from the bank’s representative their foreclosure sale is coming up in a week. “How can that be?” the borrower wonders. “The lawsuit was first filed three weeks ago, and I’ve received nothing by mail from my lender.”

When the bank refers a case to an attorney, it requires the attorney to stay within certain timelines. The speed and efficiency of the law firm determines how many cases that firm will receive. Although all lenders have their own internal timelines, here’s one example:

Pursuant to this timeline, the lender expects that the foreclosure will be completed between 140 and 150 days. Furthermore, the lender automatically creates this timeline when it refers a case to its counsel so that it can track and monitor the attorney’s speed and efficiency. Accordingly, the lender knows that if the file was referred on January 1, 2011, then the foreclosure sale should be on May 5, and all occupants evicted by May 21.

The problem is that each individual foreclosure action will vary in length based upon a number of factors:

• the judge’s calendar or court’s calendar (given the volume of foreclosures today, some judges have a wait time of between three and four months to get on their hearing calendar),
• the number of defendants and their ease in being found (the more defendants who live out of the county where the case is pending, the more time may be needed for service of process),
• foreclosure sale dates granted by the judge of 60 days or longer, and
• any motion filed to challenge the lender’s foreclosure action on any number of legal grounds.

When the actual timeline varies from the lender’s anticipated timeline, conversations like the one described above occur between lender and borrower because the lender’s computer system shows the anticipated timeline rather than the actual timeline.

What can a borrower do about this? First, do not panic. Secondly, the borrower should consult with an attorney who is familiar with the foreclosure timeline and the lender’s practices to come up with a plan to either save the home, or get rid of the house with minimal liability owed to the lender. Finally, the borrower should ask the attorney whether this practice by the lender is a violation of the Fair Debt Collection Practices Act (FDCPA) or Florida Consumer Collection Practices Act (FCCPA). Pursuant to those two laws, it is improper for the lender to misrepresent any facts about a borrower’s debt in furtherance of the collection of a debt. Clearly, telling borrowers that their foreclosure sale is set for a certain date that is physically impossible given the Florida Rules of Civil Procedure would violate both the FDCPA and FCCPA. However, as these types of cases are very fact specific, the borrower should consult with an attorney before coming to any conclusion that the lender’s actions violate either of those two laws.

If a person facing foreclosure contacts the lender for information and the lender gives them a “foreclosure sale” date that seems unreasonable, it likely is based on an anticipated rather than actual timeline. That homeowner should follow up with the Clerk of Court or a Florida licensed attorney before jumping to the often inaccurate conclusion that the sheriff is going to take their house away sooner than Florida law allows.

This article is for general educational purposes only and does not constitute legal advice.

This article is for general educational purposes only and does not constitute legal advice.

About the Author
Shawn M. Yesner is founder of the Yesner & Boss law firm. He represents clients in residential and commercial foreclosures, bankruptcies, residential and commercial closings, debt collection negotiation, and general corporate matters. Find us on the web at www.yesnerboss.com.