Gainesville, FL asked in Foreclosure and Real Estate Law for Florida

Q: What motion or request must I file in court to dismiss a foreclosure suit against my property? How can I win?

A lis pendens was filed on 12/13/17 to seek foreclosure on a mortgage for my property in Gulf Breeze. I do not have a mortgage. The complaint says the previous owners have not made payments on their mortgage since December 2012 - five years ago. Bank of America tried to foreclose on the previous owners back in 2010, but it was dismissed in 2013. The previous owners also declared bankruptcy and the house was underwater so it was not sold. It is my understanding that the 5 year statute of limitations would prevent the bank from trying to foreclose again for those nonpayments. I purchased this property at a foreclosure auction in March 2017. The reason for that foreclosure was because the previous owners did not pay their HOA dues since 2011. I have title to this property and don't want to lose this house because of someone else's financial mistakes. Furthermore, the court paperwork filed by the bank doesn't even address the current owner of the property, which is the LLC I created.

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2 Lawyer Answers
Andy Wayne Williamson
Andy Wayne Williamson
Answered
  • MIramar Beach, FL
  • Licensed in Florida

A: You need to hire a Foreclosure defense attorney from the Gulf Breeze or surrounding area to handle this.

The first step would be a review of the chain of title as to how you came to own a home that has a mortgage owed on it from a prior owner.

Get an attorney ASAP.

Jonathan A. Klurfeld
Jonathan A. Klurfeld
Answered
  • Foreclosure Defense Lawyer
  • Boca Raton, FL
  • Licensed in Florida

A: " It is my understanding that the 5 year statute of limitations would prevent the bank from trying to foreclose again for those nonpayments. " Incorrect per the FL Supreme Court in Bartram; each new monthly missed payment is a new default the bank can foreclose on.

But more discerning is you seem to have bought a property from a HOA auction without an attorney as a HOA auction does NOT wipe out a superior purchase money mortgage; an auction only wipes out liens junior to that lien. Had you has an attorney before bidding, you would not have wasted thousands of tens of thousands of dollar.

So you bought the property subject to the mortgage lien and the bank can foreclose and take away your house. I agree that you need to hire counsel, but your options are also severely limited absent now paying off the mortgage someone else took out.

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