Law Block eChapter 25: Foreclosure Law and Eviction Law

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Chapter 25: Foreclosure Law and Eviction Law 29
































Chapter 25: Foreclosure Law and

Eviction Law


Learning Objectives

• Identify the core facets of Foreclosure Law and Eviction Law

• Explore processes and procedures of Foreclosure

• Examine processes and procedures for Eviction

• Evaluate defenses to Foreclosure and Eviction

• Describe Foreclosure and Eviction case outcomes

• Detail the role of the paralegal in Foreclosures and Evictions

Outline

Section 25.1: Overview of Foreclosure


Section 25.2: Foreclosure Procedure

Section 25.3: Foreclosure Alternatives and Defenses

Section 25.4: Overview of Eviction

Section 25.5: Eviction Procedure

Section 25.6: Eviction Defenses

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Introduction


At their most basic levels, foreclosure and eviction are legal processes for recovering title or pos-
session to real property after a breach of contract. Foreclosure is the process a mortgage lender
(the mortgagee) uses to recover title to real property after the borrower (the mortgagor) defaults
on the loan instrument. Generally, a default occurs when the mortgagor fails to meet the payment
requirements contained in the promissory note that accompanies the security interest in the pur-
chased property. While being late on a single mortgage payment is unlikely to result in default,
consistent or accumulated tardy payments very well may.


Eviction is the process by which a landowner recovers possession of real property. The most fre-
quent context in which eviction arises is in the landlord-tenant relationship, where a tenant (the
lessee) has breached the lease agreement so entitling the landlord (the lessor) to repossession of
the premises. Eviction may also arise in the post-foreclosure context, where the mortgagor refuses
to vacate the property after title was legally recovered by the mortgagee through foreclosure pro-
ceedings.


The public policies that enable these two legal processes have similar roots. The parties to any
contract have duties and responsibilities with respect to the other parties. When those duties or
responsibilities are not faithfully performed, the law grants the damaged party opportunities to
avail itself of certain legal and equitable remedies. This is a basic contract principle. As a country,
we value real property very highly. As a result, the law has developed particularized contract reme-
dies to deal with specific contract breaches involving real property: foreclosure and eviction.


The Chapter introduces the core values of foreclosure and eviction, explores the key players and
their respective roles in each arena, examines the major elements of the various forms of foreclo-
sure and eviction, and analyzes the procedural elements integral to a paralegal’s success in this
field.



Section 25.1: Overview of Foreclosure



Foreclosure is the legal process of taking title and possession of a mortgaged property when the
mortgagor fails to stay current on his or her mortgage payments. It is a specialized contract action
for the remedy of a material breach by the mortgagor, i.e. failure to perform. A mortgage is the use
of real property as security for a debt on the condition that it will be repaid. A foreclosure action is
predicated on the two documents that make up what we col-
loquially know as a mortgage: the mortgage document,
which creates the security interest, and the promissory note,
which is the debtor’s promise to repay the loan.


In this section, we will begin by laying the foundation of
foreclosure law by examining the basics of mortgages and
foreclosures including source of law, mortgage theory, types

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Chapter 25: Foreclosure Law and Eviction Law 31

KEY TERMS of mortgages, the importance of recording statutes,
and essential foreclosure terminology. We will then
discuss foreclosure procedure in Florida from no-
tice to the mortgagor and filing the complaint and
Mortgagor—The owner of real property lis pendens, to the judgment and recovery of posses-
who took out a loan and secured the
debt with a mortgage sion of the property. We will also explore some al-
ternatives and defenses to foreclosure, including
Mortgagee—The lender of borrowed the mortgagor’s ability to cure or redeem, loan
money secured by a mortgage modification, forbearance, repayment plans, and
deeds in lieu of foreclosure.



Mortgage and Foreclosure Basics
Mortgage and foreclosure law is almost exclusively state jurisdiction. This means that the vast ma-
jority of applicable statutes and rules are found in the state statutes and case law, and sometimes
state constitutions. Our focus, then, will be on Florida laws that impact mortgages and foreclo-
sures. Title XL, Chapters 697, 698, and 701 of the Florida Statute govern mortgages, while Title
XL, Chapter 702 governs foreclosure. Other state statutes are relevant to the foreclosure process,
particularly with respect to lien priority, and will be explored connected to the stage at which the
statutes apply.


Mortgage and foreclosure law is NOTEABLE & QUOTEABLE
also affected by federal regula-
tions. The subprime mortgage cri-
sis which began in late 2007 and “Worm or beetle—drought or tempest—on a farmer's land may fall;
led to the national recession illu- But for first-class ruination, trust a mortgage 'gainst them all.”
minated the need for increased
regulation on the mortgage lend- - Will Carleton
ing industry. While some regula-
tion of mortgages and foreclosure
existed prior to the crisis, far more specific consumer protection measures were implemented that
have a direct impact on foreclosure procedure. The Dodd-Frank Wall Street Reform and Consum-
er Protection Act (the Dodd-Frank Act) placed regulation of the financial industry in the hands of
the government. Importantly, it created the Consumer Financial Protection Board, which has
promulgated several regulations affecting the servicing of mortgages and the procedures for insti-
gating foreclosure. Like any legislative action, the Dodd-Frank Act is subject to change by future
legislation. As a paralegal, especially one working in a dynamic and volatile field of law such as
foreclosure and eviction, it is important to stay apprised of ongoing changes to the law.

Before delving into foreclosure law, due attention must be paid to mortgage law. Since foreclosure
is a contract action on a mortgage, mortgage laws are extremely relevant to the administration of
foreclosures. Underlying all mortgage laws is the mortgage theory that the jurisdiction has chosen
to adopt. There are three mortgage theories: title theory, lien theory, and intermediate theory. The
title theory is the classic common law model for determining the nature of interests held by the
parties to a mortgage, e.g. the mortgagee and the mortgagor. Under the title theory, the mortgagee
receives legal title to the mortgaged real property and has the right to possession, rent, and profits



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32 Chapter 25: Foreclosure Law and Eviction Law

generated from the property. The mortgagee’s in-
terest is subject to a condition that divests title
NEWS IN MOTION 
from the mortgagee if the mortgagor repays the
full value of the loan within the loan term. Until
the loan is paid, the mortgagor retains only an eq-
For an in-depth analysis of the 2007-08 uitable interest in the property. Only a minority of
subprime mortgage crisis see: states follow this theory.

"The Financial Crisis Inquiry Report: Final
The lien theory is the majority view, and the ap-
Report of the National Commission on the proach adopted by Florida. Under the lien theory,

Causes of the Financial and Economic Crisis in the mortgagee receives a lien on the real property
the United States", Financial Crisis Inquiry subject to the mortgage, and the mortgagor retains
legal and equitable title and possession to the
Commission, Washington, D. C.: Government
property, unless foreclosure occurs. Under the in-
Printing Office, 2011-01-25
termediate theory, followed by only a handful of
states, the mortgagor retains legal title until default
occurs. Once the mortgagor has defaulted on the
loan, legal title and possession pass to the mortga-
gee. Under the title and intermediate mortgage theories, foreclosure is not necessary. Legal title ei-
ther already vests in the mortgagee or passes by operation of law and the mortgage instrument.
Under the lien theory, however, foreclosure is the legal process by which the mortgagee regains le-
gal title after default by the mortgagor.


There are many dividing lines in mortgage law,
mortgage theory being the first. The second is
more a practical consideration of the types of
mortgages available rather than a legal considera-
tion. Since foreclosure is predicated on default-
ing on a mortgage loan, it is imperative to under-
stand the types of mortgages available, and the
terms they may contain, that can culminate in
default by the mortgagor. A mortgage, like all
loans, is an extension of credit and is thus ac-


companied by common terms, the most im-
portant being the repayment period and the interest rate. The types of mortgages available get
their names from these general mortgage terms. Two of the most common mortgages are the 30-
year Fixed Rate mortgage and the 15-year Fixed Rate mortgage. The alternative to a fixed rate
mortgage is the adjustable rate mortgage, or ARM. The interest rate on a fixed rate mortgage, as
reflected in the name, is fixed. It does not change over the life of the mortgage. If the interest rate
on the mortgage was 3.5% when the mortgagor signed the note, it will still be 3.5% 25 years into
the repayment term. An ARM’s interest rate, however, is not fixed, it is adjustable. Over the repay-
ment term of the loan, the interest rate will fluctuate in accordance with other terms of the docu-
ment. Generally speaking, these fluctuations tend to manifest themselves exclusively as rate in-
creases. The names of the mortgages denote the repayment period as well as the adjustability of
the interest rate. A 30-year Fixed Rate mortgage provides for periodic payments over a 30-year pe-

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Chapter 25: Foreclosure Law and Eviction Law 33

riod consistent with an amortization calcula-
tion. Similarly, a 15-year Fixed Rate mortgage
KEY TAKEAWAYS provides for periodic payments over a 15-
year period. A third type of mortgage is
called a balloon mortgage. These mortgages

There are a multitude of mortgage types. Some provide for smaller payments at the begin-
examples include: ning of the repayment period and a large
“balloon” payment at the end of the repay-
 10-, 15-, 30-, 40-, and 50-year Fixed Rate
ment period.
 1-Year Adjustable Rate Mortgage (ARM)
Generally, mortgage documents provide for
 10/1 ARM
12 payments per year, or once per month.
 2-Step Mortgage Each monthly installment includes payment
 5/5 and 5/1 ARM of a portion of interest and a portion of the
principal balance of the loan, gradually reduc-
 5/25 ARM
ing the total amount owed until the final pay-
 3/3 and 3/1 ARM
ment represents the full remaining balance.
 Balloon Mortgage Once the final payment is made, the mortga-
gee releases the lien on the property and no
longer has any equitable interest therein.
However, if a mortgagor fails to make any of these periodic payments, he or she has defaulted on
the loan and opened him or herself up to the possibility of foreclosure. Such a default can occur for
a number of reasons, often influenced by the terms of the loan. For instance, if a mortgagor has an
ARM and lost track of when rate adjustments may begin, his or her monthly payment may jump
significantly and unexpectedly from one month to the next. The mortgagor may simply be unable
to pay the higher amount due to a lack of preparation or a change in income. Additionally, many
mortgage documents contain acceleration clauses. These clauses provide that, after missing a cer-
tain number of payments, the full balance of the loan becomes due immediately. For a mortgagor
who has fallen behind on payments due to a
lack of resources, the acceleration of pay- KEY TERMS
ment of the full balance is an insurmounta-
ble obstacle and will frequently end in fore-
closure proceedings. Notice in the context of recording statutes

can be “actual,” “constructive” or
There are two further practical dividing lines “recorded,” or “inquiry”:
in the mortgage world: government vs. con-
ventional loans, and first mortgages vs. sec- Actual Notice: Claimant actually sees the
ond mortgages and home equity lines of instrument mortgage or lien documents
credit (HELOC). The review of mortgage Constructive/Record Notice: Another par-
types above represents the variability of con- ty’s mortgage or lien is properly recorded
ventional mortgages. Government loans, al-
so called FHA loans, are administered by the Inquiry Notice: The nature or appearance
Federal Housing Administration and pro- of the property is such that the claimant
vide mortgage insurance on loans created by should have asked about prior liens
approved lenders. Mortgage insurance pro-


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34 Chapter 25: Foreclosure Law and Eviction Law
tects a lender for non-repayment and the insurance
KEY TAKEAWAYS premiums are included in the mortgagor’s periodic
mortgage payment. FHA loans are designed for
low- and moderate-income borrowers who are un-
able to make a large down payment. While con-
Florida’s approach to mortgage theory ventional loans generally require a down payment
and recording statute: of 20%, FHA loans only require a 3.5% down pay-
Lien Theory: The mortgagee receives a ment.
lien on the real property subject to the
mortgage, and the mortgagor retains First mortgages are what most individuals think of
legal and equitable title and possession to when discussing mortgages. First mortgages are
the property purchase-money security interests, meaning that
Notice: A subsequent bona fide the security interest in the property is collateral for
purchaser who took without notice of a loan used to purchase that property; they are
prior interests has priority based on the fair market value of the property.
Second mortgages and home equity lines of credit
are non-purchase-money security interests that use the borrower’s equity in the home as collateral
for the extension of a loan (second mortgage) or a line of credit (HELOC). Like a first mortgage,
these mortgages result in a lien on the property, and defaulting on them may likewise lead to fore-
closure. This is where lien priority and the importance of recording statutes come in.


Recording statutes determine the priority of parties’ interests in real property. There are three
types of recording statutes: race, notice, and race-notice. In a race statute jurisdiction, the party
that records their interest in the register of deeds first has priority. In a notice statute jurisdiction, a
subsequent bona fide purchaser who took without notice of prior interests has priority. In a race-
notice statute jurisdiction, a subsequent bona fide purchaser who took without notice of prior in-
terests and who records first has priority. Un-
der Florida Statute 695.01, Florida is a notice
statute jurisdiction. The impact this has on
lien priority is best illustrated with an exam-
ple. Assume a mortgagor has a first mortgage
on his or her real property and subsequently
takes out a second mortgage from a different
lender. If the second lender extended the
mortgage without actual, constructive, or in-
quiry notice of the first mortgage, then the
second lender has priority in foreclosure. If
this property is foreclosed on, the second
lender gets paid first, and the first lender gets
paid second.


Thus we reach the moment of foreclosure.
The mortgagee extended a loan to the mort-
gagor and received a security interest in the
property in exchange for future payments,
Figure 1: Florida Circuit Court Map


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Chapter 25: Foreclosure Law and Eviction Law 35


and the mortgagor has failed to make the payments KEY TERMS
in accordance with the terms of the mortgage in-
struments and as such, has defaulted on the loan.
The mortgagee’s remedy is to initiate foreclosure in
order to take title and possession from the mort- Lis Pendens
gagor. There are two types of foreclosure: non- [Latin, Pending lawsuit] A notice filed
judicial and judicial. Non-judicial foreclosure, in the public records indicating that
sometimes called foreclosure by advertisement and an interest in real property is the
sale, has become the more common of the two subject of a pending lawsuit and that
types of foreclosure. Non-judicial foreclosure must anyone who takes any subsequent
be provided for in the terms of the mortgage con- interest in the property may be sub-
tract and involves very limited judicial involvement. ject to the claims asserted in the
Simply put, non-judicial foreclosure is a sale of the pending action.
collateral upon default as provided by the contract.
Judicial foreclosure, on the other hand, requires
heavy court involvement beginning with the filing of a complaint and recording a lis pendens. Flori-
da Statute 702.01 provides that “[a]ll mortgages shall be foreclosed in equity,” thus making Florida
a judicial foreclosure state. Since non-judicial foreclosure is not available in Florida, focus will be
placed on the judicial foreclosure process in the next section. Before beginning with foreclosure
procedure, a brief note on foreclosure jurisdiction is warranted. In Florida, the Circuit Court has
jurisdiction over foreclosure proceedings. The appropriate Circuit Court is that for the county in
which the real property in question is physically located. Florida is broken up into 20 circuits,
which can be seen in Figure 1, above, and whose included counties are listed in the following two
call-out boxes. As we explore the judicial foreclo-
sure procedure in Florida and the paralegal’s role
therein, use the above mortgage law to contextual-
ize foreclosure procedure and policy.

Section 25.2:
Foreclosure Procedure



Foreclosure procedure is governed by a combina-
tion of state statute and federal regulations. The
specific procedures for judicial foreclosure in Flor-
ida are governed by Fla. Stat. 702.01 et seq. In a general sense, judicial foreclosure follows the
same pattern of many lawsuits. Judicial foreclosure begins with notice to the parties followed by
the filing of a complaint that contains a request for relief. The defendant/mortgagor has the op-
tion of answering the complaint and going to trial, or choosing not to contest the foreclosure. The
court will subsequently enter judgment for the prevailing party. If the defendant/mortgagor does
not contest the foreclosure, this will come in the form of default judgment for the mortgagee. If
the foreclosure is contested for any of a number of reasons which will be addressed in this Chap-
ter, and the case goes to trial, it is heard in a court of equity, and a judge, not a jury, makes the final
determination based on application of law. Once judgment is entered, there remains the option of
appeal. More often, procedures will turn to enforcement of the judgment rather than an appeal. In
the case of foreclosures, enforcing the judgment will generally manifest as the mortgagee’s proce-


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36 Chapter 25: Foreclosure Law and Eviction Law

dures for recovering possession of the property in question from a mortgagor who is refusing to
vacate the property post-foreclosure. We will cover each of these procedural stages in turn, begin-
ning with notice.

While neither Florida statute nor federal regulation contain any specific requirement for notice to
the mortgagor, many Florida mortgage contracts do. These clauses may require the mortgagee to
send what is commonly called a breach letter or demand letter, informing the mortgagor that the
loan is in default. It is within this pre-foreclosure stage where the federal regulations have their
largest impact on the foreclosure process. These regulations are promulgated by the Consumer
Financial Protection Board and, once they are finalized, are codified in the Code of Federal Regu-
lations, or CFR. 12 CFR §1024.41 contains perhaps the most salient regulation for our purposes.












PARALEGAL Levy, and Union
PERSPECTIVE Ninth Circuit - Orange and Osceola

Tenth Circuit - Hardee, Highlands, and Polk

Florida Circuit Court Jurisdiction by County: Eleventh Circuit - Miami-Dade
First Circuit - Escambia, Okaloosa, Santa Rosa and Twelfth Circuit - DeSoto, Manatee, and Sarasota
Walton
Thirteenth Circuit - Hillsborough
Second Circuit - Franklin, Gadsden, Jefferson,
Leon, Liberty, and Wakulla Fourteenth Circuit - Bay, Calhoun, Gulf, Holmes,
Jackson and Washington
Third Circuit - Columbia, Dixie, Hamilton,
Lafayette, Madison, Suwannee and Taylor Fifteenth Circuit - Palm Beach
This section provides that “[a] servicer shall not make the first notice or filing required by applica-
Sixteenth Circuit - Monroe
Fourth Circuit - Clay, Duval and Nassau
ble law for any judicial or non-judicial foreclosure process unless: (i) A borrower's mortgage loan
Fifth Circuit - Citrus, Hernando, Lake, Marion and
Seventeenth Circuit - Broward
obligation is more than 120 days delinquent.” This is to allow the mortgagor an opportunity to
Sumter
take advantage of any loss-mitigation options available to them, some of which will be discussed
Eighteenth Circuit - Brevard and Seminole
Sixth Circuit - Pasco and Pinellas
in the next section.
Nineteenth Circuit - Indian River, Martin,
Seventh Circuit - Flagler, Putnam, St. Johns and Okeechobee and St. Lucie
Volusia
Once the requisite delinquency period has lapsed, if the default remains, the mortgagee may insti-
tute a foreclosure action by filing a complaint with the circuit court. While the law does not re-
Eighth Circuit - Alachua, Baker, Bradford, Gilchrist,
quire notice to the mortgagor of imminent foreclosure, it does require notice to the public upon
filing. This is called notice of lis pendens and must be recorded in the county records pursuant to
Fla. Stat. §48.23. The notice of lis pendens (translated pending litigation) acts to put the public on no-
tice that a lawsuit has been filed with regard to a particular piece of property. The notice must in-
clude the names of the parties, the date of the institution of the action, the name of the court in
which it was filed, a description of the property, and a statement of the relief sought.





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The complaint, which is filed with the court clerk
and must be served on the defendant/mortgagor,
begins the lawsuit. Pursuant to Fla. Stat. §702.015 PRACTICE ON POINT
(2), the foreclosure complaint must contain affirma-
tive allegations that the plaintiff is the holder of the
original promissory note secured by the mortgage or
allege with specificity the basis by which the plain-
tiff is entitled to enforce the note. The Florida stat- The duties of a paralegal in foreclosure
ute requires the plaintiff to produce the promissory are similar to those in any other
note, or, if the note has been lost, destroyed, or sto- context of litigation, with a legal focus
len, the plaintiff must file an affidavit under the on real property:
penalty of perjury which contains a detailed chain of
endorsements, transfers, or assignments, among • Review the mortgage documents,
other information. Like all pleadings, the complaint including the security agreement
must also contain a request for relief, which will be and promissory note
foreclosure on the property. • Review the deed, potentially
including performance of a title
If the defendant/mortgagor wishes to contest the search
foreclosure, he or she must file an answer within 20 • Compile and review relevant
days of service of the complaint, or the appropriate documentation pertaining to
payment history
motion to extend the time for a response. Under • Draft pleadings, demand letters, lis
Florida’s Rules of Civil Procedure, the answer must
state in short and plain language, defenses to each pendens, etc.

claim made in the complaint. Defenses to foreclosure will be addressed in the next section. How-
ever, it bears mentioning here that the vast majority of defendants in foreclosure actions will not


have any defenses available to them. If they did
not pay as payments became due, and still have
HOT TOPICS not paid as of the time of the answer, they are in

clear breach of contract.
 Foreclosure judgments in Florida are After the complaint is filed, any other lienholder
final, meaning that any action to invali-
date, challenge, or set aside the judg- may request an order to show cause as to why
ment is limited to monetary damages. the foreclosure should not proceed, which must
The property cannot be recovered by be immediately reviewed by the court. Once
the mortgagor if: pleadings have been filed in a contested foreclo-

 There was proper service of the com- sure, discovery commences. The discovery pro-
plaint cess in foreclosure cases is extremely limited, if
not nonexistent, because the facts necessary to
 Final judgment was entered by the
court prove the elements of a case are severely con-
fined. A plaintiff need only show that they are
 The statute of limitations on appeals
has lapsed, and entitled to relief as the owner of the note and
that the defendant breached the contract. This
 The property was purchased by a true can be done with the presentation of the mort-
third-party
gage document, the promissory note, and a pay-



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38 Chapter 25: Foreclosure Law and Eviction Law
ment history – all of which are easily accessi-
ble through either the mortgagee’s or the
mortgagor’s records.

Two pretrial motions are likely to appear in
contested foreclosures. A motion for sum-
mary judgment may be filed by the plaintiff/
mortgagee, predicated on the mortgage
terms and the indisputable fact of default. A
motion to dismiss may be filed by the de-
fendant/mortgagor, predicated on the ab-
sence of default, timely cure, or lack of
standing (concepts to be discussed in the
next section). If neither of these motions are
granted, the case moves to trial where the burden is on the plaintiff to prove, by a preponderance
of the evidence, that the defendant defaulted and that the plaintiff is entitled to foreclosure relief.
Very few cases ever go to trial, particularly in the foreclosure context. For that reason, an exten-
sive focus on trial litigation in this context would be superfluous.


Either when the case is uncontested, at the end of the trial, or upon granting a pretrial motion,
judgment will be entered by the court. In an uncontested case, this judgment is called a default


judgment, and will generally grant
the plaintiff’s request for relief, e.g.
grant foreclosure of the property.
Along with the final judgment of
foreclosure, the court orders the
clerk to conduct a foreclosure sale.
This sale must be conducted be-
ETHICAL COMPASS tween 20 and 35 days after the judg-

ment unless the plaintiff consents to
more time. Additionally, a notice of
Whenever an ethics question arises sale must be published in a newspa-
remember that you are not alone. Seek per for two consecutive weeks with
feedback from your supervising attorney the last publication at least five days
or your firm’s ethics committee. If the before the sale. At a foreclosure sale,
practices of your firm or supervisor are in the property is auctioned and sold to
question, contact the regulatory the highest third-party bidder or re-
organizations that render ethics opinions, verts to the foreclosing mortgagee.
including the State Bar Association, or The mortgagor then has ten days to
other professional associations such as file an objection to the amount of
the ABA, NALA, or NFPA for advice on the the bid. After that period lapses, the
ethics parameters. When seeking clerk confirms the sale and issues ti-
professional responsibility advice, tle to the property to the purchaser.





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Chapter 25: Foreclosure Law and Eviction Law 39
Frequently, the sale price of the property will
not be sufficient to satisfy the outstanding
balance of the loan. In such a case, the mort-
gagee can seek a deficiency judgment against
the mortgagor for the difference between KEY TAKEAWAYS
sale price and the amount of the outstanding
debt. In Florida, for owner-occupied, resi-
dential property, the deficiency judgment is There are several places for paralegals to work
limited to the difference between the judg- outside of law firms:
ment amount and the fair market value of
the property as of the date of the sale. These  In-house at a corporation
deficiency actions have a statute of limita-  Public sector
tions in Florida of one year for residential
properties with four units or less.  Government agencies
 Military
If the property subject to the final judgment  Freelance
of foreclosure and foreclosure sale is occu-
pied, either by the mortgagor or by tenants
of the mortgagor, and those occupants re-
fuse to vacate the premises as ordered by
the new owner of the property, the new owner must follow the legal procedure for eviction to re-
gain actual possession of the premises.

The role of the paralegal throughout foreclosure proceedings will depend on whether they are rep-
resenting the mortgagee or the mortgagor, and will not differ significantly from that of a paralegal
working in other fields of litigation. If a paralegal represents the mortgagee, he or she may be
tasked with calendaring and tracking appropriate thresholds contained in the federal regulations or
potential mortgagor cure. The paralegal may

CAREER CONNECTION
be involved in drafting the complaint and lis
pendens, and in compiling and reviewing the
mortgage documents. If representing the
mortgagor, the paralegal’s role may include
There are many factors to consider besides compiling lists of potential defenses and alter-
salary when seeking employment. Paralegals natives to foreclosure, or drafting answers to
should carefully consider the following when the mortgagee’s complaint. For all intents and
deciding whether or not to accept a job offer: purposes, an attorney hired by a mortgagor
facing foreclosure acts as advisor more than
 Working hours anything else, advising the client as to their

 Benefits rights, responsibilities, and potential alterna-
tives in foreclosure. This type of advising is
 Culture
not something a paralegal may participate in
 Area of law directly with the client because it would be
considered unauthorized practice of law, but a
knowledgeable paralegal may be involved in



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40 Chapter 25: Foreclosure Law and Eviction Law
these discussions with their supervising attorney. In order to be effective in this capacity, in addition
to knowing the general procedure of foreclosure cases, a paralegal also needs to know the potential
alternatives and defenses. This is where we turn in the next section.

Section 25.3: Foreclosure Alternatives and

Defenses


To recap, defenses to foreclosure are few and
far between, though they do exist and under
the right circumstances may provide a mort-
gagor with relief from the foreclosure pro-
ceedings. One of the most common is what is
referred to as curing the default, or simply
cure. Curing the default is when the mortgagor
catches up on their late payments plus any fees
and costs incurred during the period of de-
fault. If a mortgagor successfully cures the de-
fault, it is said the mortgage has been
“reinstated.” Some state laws provide for a
right to cure/reinstate the mortgage within a
particular timeframe. Florida is not one of
those states. Under Florida statutes, a mort-
gagor has no right to cure and reinstate the de-


faulted mortgage. However, remember that foreclosure law is a contract matter. Many mortgage
documents provide the mortgagor the opportunity to cure and reinstate within a particular amount
of time. Even if the mortgage document does not contain such a clause, the mortgagee may allow
a mortgagor to cure at their discretion.


Other defenses to foreclosure generally
rest on legal technicalities. For instance, a KEY TERMS
mortgagor may assert defective service as
a defense, invoking due process. This
might happen if the process server left Redemption—The act of a mortgagor paying off
the lawsuit documents with a minor child the full balance of the loan giving rise to the
at the mortgagor’s residence. Another de- foreclosure
fense that can be asserted is lack of de- Loan Modification—A restructuring of the origi-
fault. This is unlikely to come up, and will nal mortgage via the agreed upon alteration of
generally rest on a very close and tech- key terms in the instrument
nical reading of the mortgage document.
Mortgage lenders and servicers are fre- Forbearance—An agreement made by the mort-
quently very large and legally sophisticat- gagee to reduce or eliminate mortgage pay-
ed entities. They have teams of attorneys ments over a certain time period and to not
whose only job is to interpret loan docu- initiate foreclosure
ments and bring foreclosure actions. It is

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Chapter 25: Foreclosure Law and Eviction Law 41

improbable that these sophisticated entities would instigate foreclosure proceedings based on a
flawed reading of their own contracts. Nevertheless, it is possible and requires thorough review of
the contract – a task paralegals may well participate in. In a similar vein, a mortgagor might assert
the defense that the mortgagee failed to comply with applicable federal regulations, e.g. filed the
foreclosure action less than 120 days into delinquency. Again, this is unlikely given the sophistica-
tion of most lenders, but mistakes happen. Even if a mortgagor successfully asserted this defense,
it would be temporary. A somewhat more likely scenario, another defense is the assertion of lack
of standing. Such an assertion is based on the rules of civil procedure that govern who may bring a
particular lawsuit. A reality of the mortgage industry is that mortgage documents are frequently
transferred between servicers. Recall that Florida law requires a party filing a foreclosure complaint
to produce the note or an affidavit listing with specificity the chain of transfers and assignments.

This provision is an attempt to limit the
number of cases filed by servicers that do
not have legal standing to bring the suit in
the first place.
ETHICS CHECK
Another important concept in foreclosure
is redemption, which is neither a true de- Many paralegals are extremely knowledgeable and
fense nor true alternative to foreclosure. capable, perhaps even more so than some attorneys
Redemption is the act of a mortgagor pay- for whom they may work. However, a paralegal must
ing off the full balance of the loan giving take particular caution with regard to sharing his or
rise to the foreclosure. Under Fla. Stat. her extensive knowledge directly with clients. In the
§45.0315, a mortgagor is granted the right context of foreclosure alternatives, addressing them
to redeem the property at any time before directly with clients in conjunction with case
the court clerk files the certificate of sale, evaluation crosses the line of unauthorized practice
or the time specified in the foreclosure of law. Remember, a paralegal may not provide legal
judgment, whichever is later. The practical advice.
realities of foreclosure make redemption an
implausible option for most mortgagors,
but it remains available for those that can
manage to come up with the capital to do
so.


A far more practical approach to avoiding foreclosure is the use of various alternatives thereto.
There are three basic alternatives available to avoid foreclosure and the federal regulations are de-
signed to specifically allow time for mortgagors and mortgagees to negotiate one of these alterna-
tives. The first of the alternatives is loan modification. Loan modification is a restructuring of the
original mortgage via the agreed upon alteration of key terms in the instrument. A mortgagee may
agree to reduce interest rates, convert from a variable interest rate to a fixed interest rate, or extend
the repayment period. To be eligible for a modification, a mortgagor must generally show that they
are unable to continue making the current payments due to financial hardship and provide the
mortgagee with an extensive set of documentation to evidence this hardship and ability to pay a
different amount. Usually, modification is accompanied by a trial period where the mortgagor must
demonstrate their financial ability to meet the requirements of the new agreement. As a paralegal,




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42 Chapter 25: Foreclosure Law and Eviction Law
you may be tasked with compiling the required doc-
umentation to present to the mortgage company,
which may include a financial statement, proof of
income, bank statements, and recent tax returns. In
the past, there have been government programs de-
signed to assist with loan modification, such as the
Home Affordable Modification Program (HAMP)
which ended in January 2017. A paralegal should
stay apprised of changes to federal programming
and keep an eye out for similar new programs as
they are enacted.


While modification is a permanent solution, the sec-
ond alternative – a forbearance agreement – is tem-
porary. Forbearance agreements are agreements made
by the mortgagee to reduce or eliminate mortgage payments over a certain time period and to not
initiate foreclosure during the forbearance. Terms of a forbearance agreement will vary between
lenders but, generally, a mortgagor will be responsible for making up any missed payments, includ-
ing interest and fees, at the end of the forbearance period. This is an option for mortgagors who
are experiencing only a temporary financial setback and who are anticipating financial recovering in
a relatively short amount of time.


A final alternative to foreclosure is a repayment plan. A repayment plan is an agreement between
mortgagor and mortgagee to spread any overdue payments over a certain number of months. This
amount is added to the mortgagor’s normal mortgage payment, typically over a period of three to
six months. At the end of the repayment plan, the mortgagor will have paid off all overdue
amounts and will resume paying their normal monthly amount.


Loan modification, forbearance agreements, and
repayment plans represent alternative options to KEY TERMS
foreclosure available to mortgagors who will be
able to afford to continue living in their homes.
However, not every mortgagor will be able to re-
cover from their financial hardships in way that al- Deed in Lieu of Foreclosure—A deed
lows them to take advantage of these options. If a from the mortgagor voluntarily trans-
mortgagor knows that they will be unable to con- ferring title to the property to the
tinue making payments of any kind, there are two mortgagor in exchange for being re-
ways they can still avoid foreclosure: a deed in lieu leased from the mortgage lien
or a short sale. A deed in lieu of foreclosure is Short Sale—When a mortgagor sells
when a mortgagor voluntarily transfers title to the the mortgaged property for less than
property to the mortgagor in exchange for being what is owed on the outstanding
released from the lien. A mortgagor simply exe- mortgage and the mortgagee agrees
cutes a deed to the lienholder. However, the mort- to accept the proceeds from sale in
gagee must agree to accept such a deed, and will exchange for releasing the lien on the
only do so if they do not want to incur the costs of property
foreclosure. Additionally, many lenders will require
the mortgagor attempt to sell the house themselves

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Chapter 25: Foreclosure Law and Eviction Law 43

before accepting a deed in lieu. The mortga-
gee wants cash, after all, not property. This
brings us to short sales. A short sale is when
a mortgagor sells the mortgaged property for
less than what is owed on the outstanding
mortgage and the mortgagee agrees to accept
the proceeds from sale in exchange for re-
leasing the lien on the property. Both of
these options save the mortgagor from the
potential embarrassment and cost of foreclo-
sure proceedings, but in Florida the mortga-
gee may still seek a deficiency judgment for
the balance owed on the mortgage. Some
lenders may agree to not seek such a judg-
ment after a short sale or deed in lieu, but
that is at their discretion. One final point is
worth noting. Bankruptcy is a viable option
for struggling mortgagors. Bankruptcy law
contains a provision known as the automatic
stay that can be used to stop foreclosure pro-
ceedings. Upon filing a bankruptcy petition,
all collection activities are stayed, including
foreclosure. For legal professionals practicing in foreclosure, advising a client with regard to bank-
ruptcy may be a necessary consideration.


Ultimately, seeking to avoid foreclosure depends on a mortgagor’s ability to recover from economic
hardship and their willingness to renegotiate with the mortgagee. Legal professionals working in
foreclosure, on either side of the aisle, must be cognizant of the economic realities of our time and
the policy considerations that inform federal regulations. The alternatives to foreclosure are often
the best option for both mortgagor and mortgagee. Lawsuits are expensive, even relatively simple
ones like foreclosure suits. Paralegals’ knowledge of state laws and changing federal regulations,








the i r
skil PARALEGAL PERSPECTIVE l s
i n dra
f t i For clients in dire financial straits who are facing foreclosure, bankruptcy presents a viable n g
ple solution. At the moment that a bankruptcy petition is received by the court clerk, the filing adi
n g fee is paid, and the petition is date-stamped, an automatic stay on all collection actions s
a n against the debtor is put into place. That means all attempts made by the debtor’s creditors d
de- to collect must stop – including foreclosure proceedings. This can give a mortgagor much m a
n d needed time to rearrange their finances and to seek out various ways of maintaining let-
ter ownership of their home. s
a s wel

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44 Chapter 25: Foreclosure Law and Eviction Law
l as in document review and contract interpre-
tation will be paramount to success in the fore-
KEY TAKEAWAYS closure arena.


Practice in foreclosure requires knowledge of Section 25.4: Overview
the following:
of Eviction
 The underlying state and federal
mortgage laws and regulations, as well as
general contract principles Whereas foreclosure is the legal process for
transferring title and possession of real proper-
 Cross over into other areas of law such as ty subject to a security agreement, eviction is
bankruptcy the legal process for recovering possession of
 The procedures for judicial foreclosure, real property subject to a leasehold. Eviction is
including general litigation principles the process of a terminating a lease and recov-
ering actual possession by the landlord/
 The available defenses to foreclosure property owner. Eviction proceedings may also
actions
be used to recover actual possession of real
 The available alternatives to foreclosure, property that has not been vacated by a mort-
both permanent and temporary, and gagor who has been foreclosed upon.
other options for improving financial
circumstances In this section, we will discuss the basics of
landlord-tenant law, including source of law,

types of tenancies, the duties of the parties, and various remedies for breach, providing the founda-
tion for our exploration of eviction procedure. This section will conclude with an examination of
defenses to eviction.

Landlord-Tenant Law Basics

Much like mortgage and foreclosure law, landlord-tenant law is governed by state statute. Unlike
mortgage and foreclosure law, landlord-tenant law is not subject to preemptive federal regulation –
at least not at the moment. For
that reason, coverage will focus
on Florida’s approach to this le-
gal arena. Florida’s landlord-
tenant statutes are housed in Ti-
tle VI (Civil Practice and Proce-
dure), Chapter 83 (Landlord
and Tenant), and occupy
§§83.001 through 83.809.
Chapter 83 is broken up into
three parts: nonresidential ten-
ancies, residential tenancies, and
self-service storage space. Our
discussion will focus primarily
on residential leases since these





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Chapter 25: Foreclosure Law and Eviction Law 45

are most common, while identi-
fying any key differences be-
NOTEABLE & QUOTEABLE tween residential and nonresi-

dential provisions.
“Often, evicted families also lose the opportunity to benefit
There are four basic types of
from public housing because Housing Authorities count
leases: term of years, periodic, at
evictions and unpaid debt as strikes when reviewing
-will, and tenancy at sufferance/
applications. And so people who have the greatest need for holdover tenancy. A tenancy for
housing assistance—the rent-burdened and evicted—are a term of years has a definite be-
ginning and end. Most residen-
systematically denied it.”
tial leases create term of years
tenancies. Consider the last lease
you signed – it was probably for
- Matthew Desmond, Evicted: Poverty and Profit in the 12 months and stated a definite
American City (2016). beginning and end date. This is a
term of years tenancy. A period-



ic tenancy has a set beginning and continues from period to period, e.g. a month-to-month lease.
This type of tenancy does not have a specified end date and continues until proper notice of ter-
mination is given. An at-will tenancy has no fixed dura-
tion whatsoever and continues only as long as the land-
lord and tenant desire. This is a particularly uncommon
type of tenancy and is more frequently created by oral
contract rather than a written contract. A tenancy at suf-
ferance, also called a holdover tenancy, is created when a
tenant remains in possession of the leased property after
the end of the lease term. The type of tenancy at issue is
important because it may impact the procedural require-
ments of eviction.


When a tenancy is created via lease, each of the involved
parties, i.e. the landlord and the tenant, assume certain
rights and duties that are created either by the lease
agreement itself, or by the operation of law. The tenant’s
foremost duty is the payment of rent. This duty may be altered when the leased premises are dam-
aged or destroyed by actions other than wrongful or negligent acts of the tenant (Fla. Stat. §83.63).
If only a portion of the premises are rendered unusable by casualty damage the tenant’s duty to
pay rent is mitigated by the fair market value of the damaged portion of the premises. If none of
the property remains usable, the tenant may terminate the lease. The tenant also has a duty to not
commit waste. Waste is any action having a negative impact on the landlord’s interest in the prop-
erty. Many leases also contain prohibitions on ameliorative waste. Ameliorative waste is a perma-
nent alteration to the premises which increases the value of the property. Florida Statute §83.52 al-
so creates a duty for the tenant to maintain the dwelling unit via compliance with applicable build-
ing, housing, and health codes.



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46 Chapter 25: Foreclosure Law and Eviction Law
The landlord’s foremost duty is to deliver possession to the tenant. Leases also contain, either ex-
press or implied, a covenant of quiet enjoyment, where the landlord promises not to disturb the
tenant during the term of possession. There is also an implied warranty of habitability, largely codi-
fied in Fla. Stat. §83.51, whereby the landlord guarantees the delivery and maintenance of premises
that are clean, safe, and fit for human habitation. A tenant’s remedies for a material breach of these
landlord duties are limited. Under Fla. Stat. §83.60, a tenant may assert a material breach as a de-
fense for withholding rent. In other words, if a landlord fails to fulfill one of their legal duties to
the tenant, one of the tenant’s remedies is to withhold the rental payment. Additionally, Fla. Stat.
§83.54 authorizes civil action seeking monetary damages for a landlord’s breach of contract. This
provision is also available to a landlord for a tenant’s material breach. However, the main remedy at

a landlord’s disposal for a breach of contract com-
mitted by the tenant is eviction.
KEY TERMS

Eviction largely takes place without court involve- Self-Help Eviction—When a landlord
ment. However, if an eviction is contested, or a relies on extralegal practices to
landlord follows the appropriate non-judicial evic- effectuate the return of possession
tion procedures and the tenant refuses to vacate of rented property. Self-help eviction
the premises, court involvement ensues. Before includes shutting off utilities, chang-
delving into the procedures of eviction, a note on ing locks, and forcibly removing the
prohibited eviction practices is warranted. First, tenant or the tenant’s belongings.
self-help eviction is strictly prohibited by Fla. Stat.
§83.67. Self-help eviction practices include shutting Retaliatory Eviction—When a land-
off a tenant’s utility service, changing locks, and lord initiates eviction procedures for
forcibly removing a tenant’s personal property the purpose of retaliating against the
from the premises. Second, retaliatory eviction is tenant for exercising the tenant’s
also strictly prohibited under Fla. Stat. §83.64. A legal rights. Often, retaliatory evic-
retaliatory eviction is when a landlord brings an tions will occur after a tenant has
eviction action discriminatorily in response to some complained of a landlord’s failure to
action taken by the tenant that does not breach the maintain the premises or reported
contract. Retaliatory eviction may come up when a the landlord to a housing authority.
tenant reports a landlord’s illegal conduct to proper
authorities, or when a tenant lawfully withholds


rent due to the landlord’s breach. Generally, retaliatory eviction can be raised as a defense to evic-
tion, and will be discussed again briefly in the final section of this Chapter. Our attention now
turns to the legal process of initiating a lawful eviction and recovering possession of the leased
premises.


Section 25.5: Eviction Procedure


A landlord’s first step in initiating eviction in Florida is the service of appropriate written notice.
There are three types of eviction notices under Florida eviction statutes: 3-day notice for nonpay-
ment of rent (Fla. Stat. §83.56(3)), 7-day notice for noncompliance with the lease or law (Fla. Stat.
§§83.56(2)(a) & (b)), and 15-day notice of termination of month-to-month tenancies. Each of
these notices is required to contain very specific information and take a particularized form which



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Chapter 25: Foreclosure Law and Eviction Law 47
is provided in each of the statutes. 7-day notices
are divided into two categories. The first is re-
ferred to as a Notice of Noncompliance or Seven
Day Notice to Cure and is governed by §83.56(2)
(b). The second is a 7-day notice for termination.
The difference between the two is the ability of
the tenant to cure the breach and continue the
tenancy. Noncompliance that is subject to cure
can include having an unauthorized person living
on the property, the accumulation of refuse, oper-
ating an unauthorized business from the location,
or maintaining unhealthy conditions on the prop-
erty. Noncompliance that is not subject to cure can include the commission of a crime, destruction
of property, or repeated disturbances or nuisances.


For each the 3-day notice for nonpayment and the 7-day notice to cure, the tenant has the allotted
time to effectuate the cure or vacate the premises. In terms of nonpayment, the tenant has three
days to become current on their rental account, In terms of noncompliance subject to cure, the
tenant has seven days to remedy whatever condition resulted in noncompliance. For those instanc-
es not subject to cure, including the 7-day notice of termination and the 15-day notice of termina-
tion (which must be served 15 days before rent for the next period is due), the tenant has the allot-
ted time to vacate the premises. Should the tenant fail to cure or vacate, the landlord can move to
the next step of the eviction process: filing an eviction complaint.

The act of not curing or vacating the premises
following the appropriate service of notice is an
PRACTICE ON POINT act contesting the eviction. In such cases, the
landlord begins by filing a complaint at the
courthouse in the county where the rental prop-
erty is located, which must also be served on the
defendant/tenant. The court then sets a hearing
date for the parties to attend. The tenant has five
Statutory language of a
7-day Notice to Cure days from service of the complaint to file their
answer asserting any affirmative defenses to the
“You are hereby notified that (cite the eviction. Based on the pleadings, the judge will
noncompliance). Demand is hereby made decide whether the tenant should be evicted at
that you remedy the noncompliance the hearing. During the pendency of the eviction
within 7 days of receipt of this notice or suit, the tenant must continue making rental pay-
your lease shall be deemed terminated ments unless the tenant is challenging the evic-
and you shall vacate the premises upon tion based on not paying rent, i.e. using nonpay-
such termination. If this same conduct or ment of rent to enforce one of their rights under
conduct of a similar nature is repeated the lease. However, the rent is not paid to the
within 12 months, your tenancy is subject landlord, but to the registry of the court under
to termination without further warning Fla. Stat. §83.60(2).
and without your being given an
opportunity to cure the noncompliance.”


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48 Chapter 25: Foreclosure Law and Eviction Law
If the tenant successfully asserts a defense to eviction, the court enters judgment on their behalf
and the eviction process concludes. If the landlord is granted possession, a Final Judgment for Re-
moval of Tenant is entered into the record. However, remember a landlord cannot forcibly remove
a tenant. In order regain actual possession of the property, the landlord must obtain a Writ of Pos-
session to be given to the sheriff for service. This writ will then be served on the tenant or posted
on the property, giving the tenant 24 hours to va-
cate. If the tenant refuses to vacate, the sheriff has
PRACTICE ON POINT authority to forcibly remove them from the premis-
es. Under Fla. Stat. §83.62(2), if any personal prop-
erty is left behind, the landlord may remove it to the
property line and request that the sheriff attend in
Statutory language of a order to keep the peace.
7-day notice of termination
Throughout this process, a paralegal’s role will be
“You are advised that your lease is different depending on whether he or she represents
terminated effective immediately. You the landlord or the tenant. When representing the
shall have 7 days from the delivery of landlord, the paralegal may be tasked with drafting
this letter to vacate the premises. This the appropriate eviction or termination notices.
action is taken because (cite the Templates of these forms will usually be available
noncompliance).” Fla. Stat. §83.56(2)(a). and require only the filling in of pertinent infor-
mation such as the names of the parties and a de-
scription of the property. If the eviction is contest-
ed, a paralegal may also be tasked with normal litigation duties, including drafting pleadings and
compiling and reviewing documentation. On the other side of the aisle, a paralegal representing a
tenant will participate in discussions with the attorney with regard to potential defenses, discussed
below, and whether or not it is advisable to contest the eviction. If the eviction will be contested,
again, the paralegal’s role will be on par with other litigation. The mainstays include drafting an an-
swer, reviewing and compiling documentation, preparing and responding to discovery requests,
and meeting with the client.

One final note on eviction procedure: recall
from the discussion on foreclosure that a
mortgagor that refuses to vacate the premises KEY TAKEAWAYS
post-foreclosure will be subject to eviction
proceedings. If a mortgagor fails to vacate
the premises, a tenancy at sufferance Generally speaking, landlord-tenant law
(holdover tenancy) is created between the heavily favors landlords. Keep this in mind
mortgagor and the new owner of the proper- when helping tenants navigate eviction. In
ty. For holdover tenancies, no notice is re- order to truly protect a tenant’s rights,
quired, and the new owner may proceed with everything must be in writing. Encourage
judicial eviction procedures via filing a com- clients to ask for receipts when they pay their
plaint. If, however, the occupier of the fore- rent, and to keep these receipts well
closed property is not the mortgagor, a 30- organized. Any communication between a
day notice of termination is required, pursu- tenant and their landlord about potential
ant to Fla. Stat. §83.561, before judicial evic- breaches of lease or law should be conducted
tion may commence. We will conclude this in writing.
Chapter with available defenses to eviction.


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Chapter 25: Foreclosure Law and Eviction Law 49

Section 25.6: Eviction Defenses


Similar to foreclosure, eviction defenses are limited,
some of which have been touched on already. De-
fenses are first raised in a tenant’s answer to the HOT TOPICS
landlord’s eviction complaint. The primary defense is
cure. When a tenant is in noncompliance with the The Fair Housing Act protects
lease for reasons of nonpayment of rent, or for some people from discrimination
other curable breach, they are given the opportunity when they are renting, buying,
to cure. If the tenant successfully cures the breach, or securing financing for any
either by payment in full of past-due rents or by housing. If a client believes
eliminating the breach, within the time period grant- they have been discriminated
ed by the notice, the landlord may not proceed with against on the basis of race,
the eviction. However, sometimes landlords file the religion, gender, national
complaint anyway. In such cases, the tenant may as-
sert cure as a defense to the eviction. If the tenant origin, familial status, or disa-
bility, a complaint can be filed
cured, but after the time granted by the notice, it is
not an affirmative defense and eviction may proceed. with the Office of Fair Housing
and Equal Opportunity here.
Another defense previously noted was material non-
compliance on the part of the landlord. This is
sometimes referred to as constructive eviction. If the
landlord fails to comply with Florida building or health codes, or otherwise fails to maintain the
structure or plumbing of a rental unit, the tenant may withhold rent. The tenant must give the
landlord written notice of the defect and al-
low the landlord seven days to fix the defect.
If the landlord fails to correct the defect, the
tenant withholds rent, and is then subject to
an eviction for nonpayment of rent, the ten-
ant may assert the landlord’s breach as a de-
fense.


A tenant that has been falsely accused of
breaching the lease may raise the defense of a
lack of legal justification for eviction. The ten-
ant must prove that they did not breach the
lease, or that the breach was due to forces
outside the tenant’s control. Another available defense is retaliatory eviction, which was discussed
above. Florida law prohibits a landlord from evicting a tenant for complaining about the landlord’s
noncompliance, for organizing or participating in a tenant’s union, or exercising any other right
under Florida law. This prohibition can be overcome when asserted as a defense if the landlord
can show that the primary reason for eviction is lawful, not retaliatory.


The one pertinent place where federal law permeates state eviction law is the final defense: dis-
crimination. The Fair Housing Act makes it illegal for a landlord to discriminate against a tenant
on the basis of race, religion, gender, national origin, familial status, or disability, and therefore


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50 Chapter 25: Foreclosure Law and Eviction Law
may not evict a tenant for any of these reasons. This prohibition on discrimination also exists in
state law under the Florida Fair Housing Act, codified at Fla. Stat. §760.23.


Successfully establishing any one of these defenses to eviction will result in judgment for the ten-
ant. The practical reality for a tenant in prevailing in eviction proceedings is that their right to pos-
session continues under the terms of the existing lease. However, a landlord that fails to evict in ju-
dicial proceedings is highly unlikely to renew a tenant’s lease. If that lease is month-to-month, the
tenant can expect a 15-day notice to terminate in the next period. If it is a term of years tenancy,
the landlord will undoubtedly refuse to renew for another term. While the tenant finishes out the
term of such a lease, they can also expect the landlord to be looking for every minute detail that
might lead to a successful eviction. Pragmatically, even if a tenant prevails in eviction, it is time to
start looking for a new place to live.


Conclusion


Foreclosure and eviction laws are specialized actions to remedy breaches of contract pertaining to
real property. Both are governed primarily by state statute, although federal regulations do come
into play. In the foreclosure arena, federal regulations govern mortgage servicing in addition to cer-
tain procedures of foreclosure itself. Eviction, on the other hand, is subject to far less federal law
intrusion, and where it is – anti-discrimination – Florida law contains the same provisions.


Foreclosure in Florida is limited to judicial proceedings where the mortgagee must file a lawsuit
requesting foreclosure relief in order to regain title or possession of the property in question. Para-
legals working in foreclosure will utilize the full gambit of litigation skills from drafting pleadings
and notices to interviewing clients, and from thorough document review to document compiling
and organization. Effective paralegals will also have a full working knowledge of alternatives to
foreclosure and how certain client circumstances might lend themselves to each particular alterna-
tive. Knowledge of loan modification, forbearance, and repayment plans, as well as deeds in lieu of
foreclosure and short sales is necessary for a successful paralegal.

Like foreclosure, working in eviction law will require the use of the same litigation-related paralegal
skills. A keen eye for contracts and for the legal rights and responsibilities for both landlord and
tenant will pave the road of success in this legal arena. A firm grasp of the particularized use of
each of the 3-day, 7-day, and 15-day notices is also necessary. Always remember that as a legal pro-
fessional one of your foremost duties is a commitment to ethical conduct. Whenever doubt arises
as to questions of law or professional responsibility, consult with your supervising attorney.


















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