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Maybe That Foreclosure Can Freeze In Its Place

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When a foreclosure is imminent because the bank won’t postpone the sale date, you may have options – maybe that foreclosure can freeze in its place.

Eric Lanigan, a partner of Lanigan and Lanigan, has been practicing Florida law since 1976. He and partner Roddy Lanigan see many people come in their offices at the last minute in regards to foreclosures. Time is running out and homeowners are grabbing at straws hoping that there is a miracle.

Every situation is different and no one’s finances, debt, income, loan or situation is the same. Eric Lanigan wants to dismiss a common misconception.  He finds people coming into the office in a foreclosure scenario where the court has already entered a judgment, typically a summary judgment and set the sale date. Which is typically going to be anywhere from a month to three months out from the date that the judgment was entered.

Eric explains that foreclosures may be able to be frozen.

“The typical scenario we’re presented with is the client comes in and says well they’ve been told that unless the bank agrees to put off the sale date,” Eric said. “That there’s nothing that can be done to stop the sale unless you want to post a bond that would which would amount to at least one and a half times of the foreclosure judgment. That is technically correct but as a practical matter it’s wrong because there is a way to essentially freeze the property. And the way that it can be done is as follows.

Through Appeal Maybe That Foreclosure Can Freeze In Its Place

“When a judgment is entered you can file an appeal of that judgment and at the time that you file that appeal you file a notice of lis pendens and this is something that you would recall that when your foreclosure action was filed you got served not only the foreclosure complaint but a copy of the notice of lis pendens. Now all that is is a filing in the public records that is notice to the world that title to this particular piece of property is being litigated and therefore buy it at your own risk.

“Well you’re still litigating the title to the property when you’re filing the appeal. So while the bank may withdraw their original notice of lis pendens, the property is now subject to the lis pendens you have filed. Now what’s the practical affect of that? Well if the property goes to public auction through the judicial sale, who’s going to buy a property that the know is subject to a lis pendens that is still being litigated?

“As a practical matter nobody’s going to buy it other than the bank so while they may technically buy back the property or buy the property at the foreclosure sale there’s really nothing they can do with it because they really can’t put the property on the market, because again, any potential buyer, any potential realtor looking for property for a buyer is going to see that this lis pendens has been filed and therefore this property is embroiled in litigation and they’re going to move on to some other piece of property.

“So effectively as long as the appeal goes on which in most cases in Florida these days probably at least a year. That property is going to be frozen, no one’s going to buy it so your ability to negotiate to try to make something work with the property is going to still be there it’s not going to get transferred off into the hands of some third party purchaser.

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