Can I move back into a home facing foreclosure?

We stopped paying our mortgage and were locked out of our property 2 years ago. I still haven’t been served with any foreclosure papers and the property is not being cared for. The bank that holds the 2nd mortgage and is the only 1 that has contacted us in regards to the mortgage, is sending us loan modification form letters. The first mortgagee sold the mortgage to a bank in NY, which I’ve never heard of or from. My son moved back into the property and the police came by saying that they had a report that it is supposed to be vacant. Any idea what might happen next?

Asked on March 16, 2011 under Real Estate Law, Florida


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Who owns the property? If you still own it--if it hasn't been foreclosed upon--you should have a right to reside in it, or let your son live there. It doesn't matter if it was facing foreclosure--until it's foreclosed, it's still yours.

On the other hand, if it has been foreclosed upon, then you and your son have no right to be there.

Foreclosure *must* be done properly, which includes providing notice and a chance to contest it. If the property was "foreclosed" without providing the proper notice or following other proper procedures, you may be able to overturn the foreclosure and even seek damages or compensation. Note that even if you stopped paying the mortgage, you can't be locked out until the home is foreclosed and you are properly evicted under the law--the bank can't simply change the locks on you without following proper legal procedure, and doing so can result in the bank beinig liable.

You should consult with a real estate attorney to help you determine current ownership and your rights and remedies. It is possible that you have recourse in this matter. Good luck.

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