Question 1

What is a power of sale foreclosure?

Accepted Answer

A power of sale foreclosure (also called nonjudicial foreclosure) is a foreclosure process that allows the lender to sell the property without going through the court system. The process is based on a "power of sale" clause in the mortgage that authorizes the lender to sell the property upon default. However: Florida is a judicial foreclosure state. Florida does NOT permit nonjudicial foreclosure for residential real property (all residential foreclosures must go through the circuit court). The only exception: some commercial mortgages may include a power of sale clause, but Florida courts have been inconsistent in enforcing them.

Question 2

Why doesn’t Florida use nonjudicial foreclosure?

Accepted Answer

Florida’s judicial requirement: the Florida Constitution and statutes require judicial foreclosure (Chapter 702) for several reasons: borrower protection (the court ensures that the borrower receives proper notice and has an opportunity to defend), due process (the court verifies that the lender has the right to foreclose and has complied with all legal requirements), surplus funds (the court oversees the distribution of surplus funds to the former owner), and deficiency judgments (the court determines whether the lender is entitled to a deficiency judgment). While judicial foreclosure is slower (typically 6-18 months), it provides more protection for borrowers.

Question 3

How does Florida’s judicial foreclosure process work?

Accepted Answer

Process: the lender files a lis pendens (notice of pending foreclosure) and a complaint in circuit court, the borrower is served and has 20 days to respond, discovery and mediation may occur, the court enters a final judgment of foreclosure (if the lender proves its case), a sale date is set (typically 20-35 days after the judgment), the property is sold at a public auction (the highest bidder receives a certificate of sale), the certificate of title is issued (10 days after the sale), and the former owner must vacate (the buyer can file a writ of possession to remove the former owner). The entire process: typically takes 6-18 months from filing to sale.

Power of Sale Foreclosure Nonjudicial

Power of Sale Foreclosure (Nonjudicial) in Florida

FL Rule

Why Judicial

Process

Related Terms

Barnes Walker Real Estate

Ready to Get Started?