Florida Divorce and Mortgage Foreclosure

I am in the middle of a divorce and cannot afford to keep my house. I cannot afford a lawyer. What are my options?

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Bill's Answer: Answered by Mark Cappel

Your situation is complex, and includes these issues, which I discuss below:

  • Deficiency balance on a vehicle repossession
  • Divorce & legal representation
  • Florida's notary public laws
  • Florida mortgage foreclosure
  • Florida deficiency balance on mortgage foreclosure
  • Federal foreclosure-prevention programs

Before I go into foreclosure options and debt, I advise you not to sign any document without first consulting an attorney in your state. If you can not afford one, contact the Florida Bar for information on finding the local organization that provides legal aid to low- and no-income consumers.

You indicate you are not yet divorced but I surmise some legal paperwork has been filed with the court. You do not mention who is on title on the home or on the loan for the motorcycle but I suggest you read this other Bills.com article on Florida divorce and foreclosure and divorce and debt.

You state your ex-spouse asked you to sign a promissory note that was notarized. A notary is bound by Florida Statute, Title X, Chapter 117, and may only notarize a signature on a document. It is suspect that a document would be notarized prior to your signature unless it was for your ex-spouse's signature. This promissory note seems bogus, and signing it is contrary to your interest. Also, it is inappropriate for your ex-spouse's attorney to request seeing you to sign documents without your own legal representation. This act puts you at a disadvantage, and may be contrary to Florida's rules of professional responsibility.

You need an attorney who has a fiduciary responsibility to you to review any documents regarding to the motorcycle, the mortgage, deed or anything else relating to the divorce before you sign them. Remember, your ex-spouse's attorney has your ex-spouse's interest in mind and not yours. Your ex-spouse's attorney has no more authority over you than anyone else, and you will most certainly harm yourself if you sign any document that attorney places before you.

Florida Deficiency Balances

If there is a deficiency balance on the balance owing on the motorcycle, Florida Statute, Title XL, Chapter 713 governs real and personal property liens and deficiency balances. The person listed on the loan for the motorcycle is responsible for any debt or deficiency owed to the lender. Since your divorce seems pending, it would be advisable to ask an attorney if and how a divorce is treated under this law.

If your house ultimately is foreclosed upon, the mortgagee could sue for a deficiency balance, if there is one, according to Florida Statute, Title XL, Chapter 702.

Home Affordable Modification Program (HAMP)

The Making Home Affordable  HAMP overview page is describes succinctly the requirements that borrowers must meet to be eligible. In a nutshell, HAMP is designed to help homeowners and servicers avoid foreclosure by modifying the terms of the loan to make the mortgage payments affordable for the long-term.

The HAMP qualifying criteria include:

1) Borrower is delinquent on their mortgage or faces imminent risk of default

2) Property is occupied as borrower's primary residence

3) Mortgage was originated on or before Jan. 1, 2009 and unpaid principal balance must be no greater than $729,750 for one-unit properties.

The HAMP overview page contains information about eligibility, program availability, and steps to take to process a HAMP request, including links to a request form, IRS 4506 form, and  verification of income checklist.

Home Affordable Foreclosure Alternatives (HAFA)

HAFA alternatives are available to all HAMP-eligible borrowers who: 1) do not qualify for a Trial Period Plan; 2) do not successfully complete a Trial Period Plan; 3) miss at least two consecutive payment during a HAMP modification; or, 4) request a short sale or deed-in-lieu.

HAFA is complex with numerous guidelines set by the Treasury Dept. These guidelines do not apply to loans by Fannie Mae, Freddie Mac, FHA or VA because these programs have their own short-sale programs that vary from HAFA.

HAFA provides incentives to mortgage lenders (servicers), seller, and other lien holders. There are deadlines that the mortgage lender and subsequent lien holder have to follow to provide timely progression on the sale of the property. HAFA simplifies and streamlines the short sale and deed in lieu process by providing a standard process flow, minimum performance timeframes, and standard documentation.

HAFA details

A 45-page HAFA Supplemental Directive 09-09: Home Affordable Foreclosure Alternatives – Short Sale and Deed-in-Lieu of Foreclosure Update provides detailed information, including a description of the current guidelines, plus the latest documents you need for the short sale or deed-in-lieu of foreclosure.


First, consult with an attorney in your state immediately regarding your divorce and related matters. You mentioned you cannot afford an attorney. To the contrary, you cannot afford not to work with an attorney. Your situation is complex and you need legal representation. Second, research the alternatives to foreclosure listed above to help make an informed decision on your housing situation.

I hope this information helps you Find. Learn & Save.




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Comments (1)

Drew C.
May 11, 2010
Home owner’s who want to keep their home have 3 options if they are struggling to make their mortgage payment or their home is upside down in value 120% or more… 1. Do nothing. Pay what you always pay and get what you always get. 2. Loan Modification- Lower your monthly payment 25-50% reduction of monthly payment possible today, all arrearages can be forgiven and the loan reinstated without having to come up with back payments. 3. Principal Reduction Program- True Short Refinance where you keep your home, stay on title, get a new Lender and new loan at 90% of today’s LTV.
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