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Irwin Law
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In Fla. Must there be listed a Breach on Note as a separate

Customer Question

In Fla. Must there be listed a Breach on Note as a separate count (i.e. count two or count three) but part of the foreclosure complaint. Must a separate count that says a person failed to pay on promissory note ... be listed (as a separate count from the "foreclosure" count to get possession / title) in order for a lender / plaintiff to seek a deficiency judgment on the note balance ... in the after the sale deficiency hearing.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Attyadvisor replied 1 year ago.

Welcome and thank you for your question. I will be the professional that will be assisting you.

The Note and Mortgage can be named in the same count together.

 

Must a separate count that says a person failed to pay on promissory note ... be listed

 

Generally there is a count that states that the borrower defaulted under the note and mortgage.

 

Can you clarify your question regarding the Note and possession? Do you have a can attach?

Customer: replied 1 year ago.


What I heard was ... the lender / plaintiff ... must have counts like this


Count (1) foreclosure, Count (2) breach of the promissory note.



if they want to chase a person for a deficency on the note after the sale.



True ? Goal here is the know ... if they are barred from chasing me (for a deficiency) ... since they only had count one (1)


Expert:  Attyadvisor replied 1 year ago.
I see this was on a deficiency judgment. I apologize for my confusion. I will opt out as I will be off line for the afternoon.
Customer: replied 1 year ago.
Relist: Other.
expert opted out
Expert:  Irwin Law replied 1 year ago.

What you heard about separate counts is incorrect. Separate counts are not mandatory. The default on the note and the existence of the mortgage security can all be alleged in a single count, i.e. legal paragraph of the complaint. The deficiency judgment can issue pending the result of the sale.

I hope that this information is helpful. If not, and you need further information, please do not rate this Answer and just send me a Reply asking for clarification. After that, I hope you will enter a positive rating so that I will be compensated for assisting you. Also, be sure to verify this information with a local attorney who is familiar with your local laws and procedures. Thanks again for using Pearl.Com- Just Answer. Your business is appreciated.

Irwin Law, Lawyer
Category: Real Estate Law
Satisfied Customers: 4968
Experience: Lawyer- Broker 30+years - foreclosure, short sale, liens, title attorney.
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Customer: replied 1 year ago.

ok, thanks. And to clarify the new Fla law that the lender has one year to file for a deficiency. if a mtg foreclosure case was filed in late 2008, and goes to final judgement in October 2013 (After the new 2013 Fla law with the one year time to seek a deficiency) .... does this new one year rule apply to seek a deficiency apply to this case that is settled / final judgment in October 2013 / after the new Fla law (summer of 2013) was passed or does it not apply since to the case that was filed in 2008 and therefor the lender still has five years to seek a deficiency judgment. Cased filed in 2008 and final judgement / sale in October 2013 ... so what statute of time applies to seek a deficiency ??

Expert:  Irwin Law replied 1 year ago.
This is an entirely new and very different question from the first one. Please enter a rating for my first Answer before moving on to different areas. Thanks.
Customer: replied 1 year ago.

ok, thanks. and I rated excellant the prior answer. And to clarify the new Fla law that the lender has one year to file for a deficiency. if a mtg foreclosure case was filed in late 2008, and goes to final judgement in October 2013 (After the new 2013 Fla law with the one year time to seek a deficiency) .... does this new one year rule apply to seek a deficiency apply to this case that is settled / final judgment in October 2013 / after the new Fla law (summer of 2013) was passed or does it not apply since to the case that was filed in 2008 and therefor the lender still has five years to seek a deficiency judgment. Cased filed in 2008 and final judgement / sale in October 2013 ... so what statute of time applies to seek a deficiency ??

Expert:  Irwin Law replied 1 year ago.
In Florida, the statute of limitations for deficiency judgments resulting from foreclosures on or after July 1, 2013, is one year. The time period does not begin to run until the day after the court clerk issues a certificate of title to the buyer in the foreclosure sale. This is because your mortgage holder does not become entitled to a deficiency judgment in connection with a foreclosure until a judgment has been entered and your property has been sold for less than what was owed. If the foreclosure sale occurred before July 1, 2013, the statute is the earlier of five years or July 1, 2014. Since your sale has yet to occur I will state that the statute in your case will be one year from the date of the sale, i.e. it will be governed by the new statute, not the old one.
I hope that this information is helpful. If not, and you need further information, please do not rate this Answer and just send me a Reply asking for clarification. After that, I hope you will enter a positive rating so that I will be compensated for assisting you. Also, be sure to verify this information with a local attorney who is familiar with your local laws and procedures. Thanks again for using Pearl.Com- Just Answer. Your business is appreciated.

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