• +1 305 670 4455
  • Email Us

Florida Foreclosure and the Service

  • Florida Foreclosure and the Service

    Florida Foreclosure and the Service

    Since as early as the start of World War I, the federal government has felt the need to protect members of the armed forces from foreclosure.  In 1918, the Soldiers’ and Sailors’ Civil Relief Act was created to do just that.  In 1940, the law was reenacted for the soldiers fighting in World War II.  Unlike the 1918 version, the 1940 Act contained no expiration date and survived for over 60 years with 13 different amendments.

    In 2003, as a response to the Iraq War, Congress renovated the language in the law, thus creating the Servicemembers Civil Relief Act (“SCRA”).  While most of the changes to the SCRA were done regarding commercial transactions, much of the important language regarding residential foreclosure was left intact and still protects service members and their families today.

    It is important to begin by saying that this short article is far from an exhaustive explanation of the SCRA.  There are many complex areas of law that are covered under the SCRA, and it is important to always seek the advice of an attorney before making legal decisions.  That being said, there are parts of the law that all service members and their families should be aware of.  Many times, when laws are broken intentionally or unintentionally, service members are not even aware that it is happening.  It is a much more difficult problem to fix an improper foreclosure after it happens than it is to stop it from ever occurring.

    Section 527 of the SCRA caps the maximum rate of interest for service members at six percent for all residential mortgages entered into prior to active duty.  It places the burden on the lender to prove that a higher rate is justified and that it will not prejudice the mortgagor.  While not being quite as valuable for armed service members that have a lower rate than six percent, many home mortgages that were entered into prior to the housing crisis are at rates exceeding the cap.  If a lender failed to adjust the interest rate during a period of active duty, seek the advice of an experienced real estate attorney immediately.

    Another important provision in the law requires that any waiver made to the SCRA must be made during or after active duty.  Pre-service waivers are illegal and ineffective.  Waiver fraud can be an all too common event, where a waiver is either postdated or forged.  Such a waiver is not allowed by the law, and an attorney should be sought to help remedy the situation.  Because the SCRA has existed for so long in one form or another, courts are very accustomed to dealing with service members in foreclosure.  In a foreclosure or eviction, an affidavit must be signed by the petitioning party stating that the person to be foreclosed/evicted is not on active duty.  Unfortunately, mistakes are made.  Worse still, some lenders have been found to have fraudulently signed affidavits when they had knowledge of a person’s active duty.

    In places like South Florida, where many members of the armed forces choose to settle down, experienced real estate law firms, like the Lamchick Law Group, P.A., advise service members of their rights while in foreclosure.  Often times the families of service members are the ones left to fight for homes in foreclosure, making it even more important to hire attorneys that can be trusted.  When service members return and find themselves in foreclosure, the Lamchick Law Group, P.A. works to achieve foreclosure alternatives like a mortgage modification, deed in lieu, or short sale.  When dealing with something as important as your home, make sure you find a real estate firm with years of experience to help you solve your problems.