Redisetgo, Home Owner in South Fort Myers, FL

eviction procedure for owner financed home

Asked by Redisetgo, South Fort Myers, FL Fri Mar 9, 2012

Can someone tell me the process for foreclosure for an owner who is owner financing for the buyer?

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Answers

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I am not a licensed Attorney so my answer is for purely informational purposes.

Chapter 83 of Florida Statutes provides the steps to follow in an eviction case. The following information is to assist you with what documents must be filed and the costs involved in a simple eviction case.

The filing fee, payable to the Clerk of Court, is usually $98.00, but varies between counties. Payment may be in the form of cash or personal check with proper identification.

This short summary of the legal procedure is targeted toward regaining possession of your property. It does not address the payment or recovery of back rent and damages owed to you.

Step One: Prepare and Serve Three-Day Notice.

Before filing a Complaint to recover possession, a landlord must serve a Three-Day Notice demanding payment of rent or possession of the premises within three (3) days (excluding Saturday, Sunday, and legal holidays) after the date of delivery of notice. After the expiration time on the service of the Three-Day Notice you may proceed with filing the Complaint for Eviction. (Remember how we count the days.)

Step Two: Complaint & Summons

Prepare Complaint: The landlord shall file the original Complaint and sufficient copies of the Complaint for each tenant with the Clerk. The Court must also receive a copy of the Three-Day Notice and a copy of the lease, if one exists. You must also attach a copy of the notice and lease to each copy of the Complaint. The Complaint must be signed in the presence of a deputy clerk or must be notarized by a notary public.

Issuance of Summons: After the Complaint is filed and the fee paid, the Clerk will issue an Eviction Summons/Residential. A copy of the Complaint, three-day notice, and lease (if one exists) will be attached for service on the tenant. The Sheriff or a private process server can serve this Summons. The Sheriff’s fee is usually around $20.00 per tenant and must be in the form of cash or money order. Other Florida counties may vary. If paid by cash, you must personally deliver the Summons to the Sheriff’s Office, Civil Processing Department. Private process server fees vary and you would contact them directly.

Certificate of Mailing: If the tenant cannot be reached either personally or by substitute service, the summons can be served by posting (attaching to a conspicuous part of the premises). If this occurs, the landlord must request that the Clerk mail the notice to the tenant by Certificate of Mailing.

Step Three - Day in Court

Answer by Tenant: The tenant has five days (exclusive of Saturdays, Sundays and holidays) after service of the Summons to file an answer. If an answer is filed and monies are deposited, the landlord must contact the Court to schedule a hearing.

Default:

If the tenant fails to answer the Summons, the landlord may file a Motion for Default by Clerk/Default and proceed with obtaining a Final Judgment for Possession and obtain a Writ of Possession

The Clerk is authorized to enter a Default at the end of five days after service is obtained upon the tenant. Upon the default being entered by the Clerk, the Judge will then review the file and enter the Final Judgment for Possession and direct the Clerk to issue the Writ of Possession.

Furnish the Clerk with an original Final Judgment for Possession and a copy for each of the tenants and yourself. You must also furnish the Clerk with pre-addressed stamped envelopes to the tenant(s) and yourself for mailing the conformed copy of the Final Judgment. The Writ of Possession should be presented to the Clerk for issuance.

Step Four: Wrapping it up

After entry of the Judgment, the Clerk will issue a Writ of Possession to the Sheriff describing the premises and commanding him to put the landlord in possession after 24 hours’ notice conspicuously posted on the premises. The Writ must be served by the Sheriff. The fee payable to the Sheriff is around $70.00 by money order, check or cash. If cash, you must personally deliver the cash and the issued Writ to the Sheriff. The Clerk cannot accept cash payment for the Sheriff.

Please remember that RHOL and Court Clerks are prohibited from giving specific legal advice. If you have any doubts about your ability to file an Eviction on your own behalf, you should seek legal advice from an attorney.

The Clerk’s office is usually open Monday - Friday from 8:30 am until 5:00 pm. Check your phone directory for the direct phone number to the County Civil Division.

The County Judge’s phone number for setting any hearings is also listed in the phone directory Ask for the Judge assigned to your case.

Here is a link for you to download all the necessary forms and read details:
http://www.trulia.com/blog/alekov/2012/03/guidelines_for_flo…
3 votes Thank Flag Link Mon Mar 12, 2012
Evictions and foreclosures are different procedures, the technical answer depends on how the contract is written – form or type of transaction. Many buyers and sellers confuse the different forms. Rent-to-own for example is a lease, theoretically containing an option to purchase but “buyers” think it is a form of owner financing. It isn’t, it is a lease.

Your question doesn’t really indicate if you are the owner providing the financing or the buyer that is about to be kicked out. If you are the owner you need to hire an attorney. If you are the buyer you may also need an attorney, but first I would open up a dialog with the seller to find out what they want to do. The biggest problems in real estate are always compounded by lack of communication, good luck to both of you.
2 votes Thank Flag Link Sat Mar 10, 2012
I'm not a lawyer, so this isn't legal advice. For that, you need a lawyer. (And in your case, you do.) However . . .

You're not aiming for an eviction. You're aiming for a foreclosure.

An eviction applies when you're renting a property to someone else. You own the property. The deed's in your name. They're renting.

However, with owner financing (and, again, I'm not a lawyer) you've conveyed equitable interest in your property to the buyers. That doesn't necessarily mean the deed has been officially transferred, but the existence of that sales contract says you've conveyed interest. In that case, you foreclose.

Having said that, it might be possible to get away with an eviction if the defaulting buyers don't know the difference. But they'll likely go to their lawyer (if they haven't already), who will inform them that they do have an equitable interest and that the seller (you) must foreclose.

As for foreclosing, a lawyer can help you with that.

One other possibility: You might try the same "cash for keys" strategy that some banks are using. You'd still need properly drafted legal documents showing that the buyers forfeit all ownership rights and claims. But it might be easier and quicker to pay them a few thousand dollars just to leave than to go through a protracted legal proceeding.

Again, check with a lawyer.

Hope that helps.
1 vote Thank Flag Link Fri Mar 9, 2012
Don Tepper, Real Estate Pro in Fairfax, VA
MVP'08
Contact
Hopefully you did an "option to buy" and a separate "lease" or now you will have to go the lengthy and costly procedure of foreclosing. If you did a lease it will be a quick eviction. Your attorney that reviewed your "owner financing" should be able to guide you. If you did a do-it-yourself (or relied on the buyer's attorney to write up your contract) then you absolutely need an attorney now.

Good luck!
Alma Kee
http://www.SoldOnTampa.com
0 votes Thank Flag Link Sat Mar 10, 2012
With evictions everything has to do with timining and notices. How these notices are delivered and the timing between actions is very specific to be valid in any court.

Like several of the previous posts listed below, don't try to do this yourself. While you could, doing it wrong can delay the entire process by months....which would have paid for the cost of hiring an attorney to assist you.

I've attached a list of some of the Title Offices in For Myers, Fl to this email for you to find the right one for you.

Good luck to you!
0 votes Thank Flag Link Sat Mar 10, 2012
Ditto, consult with a real estate attorney.
Web Reference: http://www.gulfreturns.com/
0 votes Thank Flag Link Sat Mar 10, 2012
Process of Foreclosure is an attorney question. We work with an incredible attorney and can certainly refer you to them. Let us know. Also....we should do an evaluation for you.....see what we can sell it for.

jessemcgreevy@gmail.com
239-898-5329
http://www.Domain-RealtyGroup.com
0 votes Thank Flag Link Fri Mar 9, 2012
We have a new tyep of business popping up;
They handle evictions for landlords who don't want to or are too busy.
Look in the Yellow pages or Google locally.

Good luck and may God bless
0 votes Thank Flag Link Fri Mar 9, 2012
This is why many owners do not want to be in the rent to own business or owner financing business, which is basically the same thing. They often don't work out and once in they are hard to remove. Seek legal advice.
0 votes Thank Flag Link Fri Mar 9, 2012
You have to speak to an attorney. This is a legal question.
0 votes Thank Flag Link Fri Mar 9, 2012
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