Why Won’t The Foreclosure Judge Force My Bank To Modify My Loan?
In Florida we are a judicial foreclosure state which means that you can fight your foreclosure in court. You can have your day in court and you have your defenses.
If you have not made your house payments for a while you will get served at some point in time a summons and complaint for foreclosure. Some banks will serve you with a foreclosure lawsuit about 10 days after they send you an accelleration letter and others will not serve you for a while. Some people get served with a foreclosure lawsuit within 60 days and others it could be years.
The contract you signed when you bought your house- is between you and your bank. When you did not have enough money to buy your house with cash you asked your bank to give you a loan. The bank said yes but in return you would be signing a promissory note. This is what we call the ‘Note’. The note is an agreement for you to pay your bank back the money you borrowed. It was a contract between you and your bank. But your credit alone was not enough for the bank to give you the loan for your house so you signed a ‘mortgage instrument’ which became a part of the transaction agreement you made with your bank. Your mortgage is an agreement that you offered up your house as collaterol to back up your promisorry note that you would pay back the money you borrowed.
Your mortgage instrument says that the bank can take away your house from you if you don’t pay your agreed upon house payments and other fees. But the bank has to take you to court or file a motion in court, like a law suit against you in order to actually take the house away from you because Florida is a statutory warranty deed state. That is the subject of another article.
Since this is all an agreement you and your bank made when you want to remodify the terms of that original agreement the bank does not HAVE to do so. It is a misunderstanding that the bank HAS to let you modify or refinance your loan or do a short sale or do a deed in lieu. They don’t HAVE to do any of those things because it is not in the contract that you have with your bank.
So a judge can not force the bank to go against their own contract unless of course the bank created your contract in a fraudulent manner or violated laws in doing the contract with you.
The court can order your bank to go to mediation to try to work things out with you. The supreme court of Florida passed a ruling that says that all foreclosure cases must go through mediation before the bank can get their foreclosure judgment. The court can do this because it is about rules of court. They can determine what their rules of court are.
The judge can force the mediation but the judge can not force the outcome of that mediation. The mediation is confidential and the details of the mediation resolve is not brought up in court.
So the answer is NO- the judge does not force your bank to modify your loan. He can not force you or your bank to agree to anything that is not in your contract with the bank.
Disclaimer: We are NOT attorneys and we are not giving you legal advice. Please consult an attorney who knows how to help you defend your foreclosure lis pendens.