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barristerinky
barristerinky, Attorney
Category: Landlord-Tenant
Satisfied Customers: 35297
Experience:  Attorney over 16 years, landlord 26 years
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I have a promissory on a home we financed they are 4 mths

Customer Question

I have a promissory on a home we financed they are 4 mths past due the property taxes from last yr have not been paid. She wont answer our calls, texts or emails. She has a couple in the house and they deposit the rent that they are paying her into her acct directly. How can we take possession of the property we are in Florida?
Submitted: 1 year ago.
Category: Landlord-Tenant
Expert:  barristerinky replied 1 year ago.

Hello and welcome! My name is ***** ***** I will try my level best to help with your situation or get you to someone who can.

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Is the property in the buyer's name or is it still in your name?.

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Did you sell it to them on a "land contract" or "contract for deed" type of transaction?

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Or was this just a straight sale where you are just holding the note on the property?

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thanks

Barrister

Customer: replied 1 year ago.
the deal was handled by a title company we have a warranty deed and a promissory note. The property is now in her name we hold the mortgage
Expert:  barristerinky replied 1 year ago.

Ok, then you sit in the same position as any bank would be in as this is just a seller-financed sale rather than a bank financed sale.

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With that said, unfortunately, you would have to go through the same steps a bank would in first sending them a 30 day notice of default and then if they don't pay everything due to cure the default, file suit against them for breach of contract to foreclose on the property. In Florida, the lenders go to court in what is known as a judicial foreclosure proceeding where the court must issue a final judgment of foreclosure. The property is then sold as part of a publicly noticed sale. The court with jurisdiction over a foreclosure is known as the Circuit Court. A complaint is filed in Circuit Court along with what is known a lis pendens. A lis pendens is a recorded document that provides public notice that the property is being foreclosed upon. If it didn't bring enough to pay it off, then you would have to pursue the buyer personally for any deficiency by suing them.

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This is why I am not a fan of seller financed mortgages because by the time you pay an attorney to foreclose on the property, you are several, if not tens of thousands into legal costs for a buyer who likely has no assets to begin with.

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The only exception is when the buyer is putting up a big downpayment, like 20-25% and the financing time is short, maybe 3-5 years. Then it can be worth the risk of them defaulting.

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thanks

Barrister

Customer: replied 1 year ago.
Can she quit claim it back.
Expert:  barristerinky replied 1 year ago.

Yes, that would be a quick way out of the problem of having to pursue a formal foreclosure. If she were to agree to do a "deed in lieu of foreclosure", then she deeds it back and you agree to cancel any outstanding debt on the house. You get the property back without having to foreclose and she gets to walk away without being sued and having a foreclosure on her record.

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So that can be a win/win for both parties as long as the buyer is willing to do so. But if she refuses to do so since she is getting the rent from the property and not paying you, then you will have to go the foreclosure route, which normally will take 7-9 months in FL before you could force a sale of the property.

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thanks

Barrister

Customer: replied 1 year ago.
Thanks
Expert:  barristerinky replied 1 year ago.

You are very welcome. Glad to help any time..

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Keeping my fingers crossed for you that she will agree to a deed in lieu...

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thanks much

Barrister