When you receive a Florida foreclosure summons, you have 20 days to file a written response. That response is your answer to the complaint -- and it is the document where you raise your defenses. This checklist covers the most significant defenses available in Florida foreclosure litigation. Not every defense applies to every case; a qualified Florida foreclosure defense attorney should review your documents to identify which apply to your situation.
Missing the 20-day deadline allows the lender to seek a default judgment, severely limiting your options. See our guide on how many days you have to respond to a Florida foreclosure.
Checklist: Review the Complaint and Attachments First
Before identifying defenses, review the complaint carefully. Check:
- Is the plaintiff named correctly, and do they appear to hold the note?
- Is the note attached? Is it the original or a copy?
- Are all endorsements on the note visible and complete?
- Is the mortgage (deed of trust) attached?
- Is a copy of the acceleration or breach notice attached?
- Does the complaint allege all conditions precedent were met?
- Is your name spelled correctly, and is the property address correct?
- Is the loan account number correct?
Defense 1: Lack of Standing
Standing is the most commonly litigated defense in Florida foreclosure cases. The plaintiff must prove it owned or held the note at the time the complaint was filed -- not just at the time of trial. Issues to look for:
- The note is payable to a different entity than the plaintiff, with no complete chain of endorsements
- The assignment of mortgage was executed after the complaint was filed
- The plaintiff claims to be a trustee of a securitization trust but cannot show the note was transferred into the trust according to the trust's Pooling and Servicing Agreement (PSA) before the trust's closing date
- The note attached to the complaint is a copy, not the original
Defense 2: Failure to Satisfy Paragraph 22 Conditions Precedent
Virtually every Florida residential mortgage contains a paragraph 22 (or similar clause) requiring the lender to send a notice of default before accelerating. The notice must:
- Specify the default
- State the action required to cure
- Give a cure deadline of at least 30 days
- State that failure to cure may result in acceleration and foreclosure
- State the borrower's right to reinstate after acceleration
- State the borrower's right to assert defenses in the foreclosure proceeding
If the notice was not sent, was sent to the wrong address, or was deficient in any of these elements, that is a potential dismissal ground. Review the notice attached to the complaint line by line against the mortgage's paragraph 22 language.
Defense 3: Improper Service of Process
Florida Rule of Civil Procedure 1.070 and Florida Statute 48.031 govern valid service. If the process server did not comply -- for example, by leaving the documents with an unauthorized person or at the wrong address -- you may be able to challenge service. However, courts sometimes find service was proper even if the borrower disagrees, so this defense should be reviewed with an attorney rather than used as a reason to ignore the lawsuit. See our guide on what to do when you receive a Florida foreclosure summons for more on service issues.
Defense 4: Lost Note -- Failure to Re-Establish Under Fla. Stat. 673.3091
Florida Statute 673.3091 requires a plaintiff who cannot produce the original note to prove: (1) it was in possession of the note and entitled to enforce it when it was lost; (2) the loss was not the result of a transfer or lawful seizure; and (3) it cannot reasonably obtain possession of the note. If the plaintiff cannot satisfy these elements, it cannot foreclose. If the complaint pleads a lost note but the supporting affidavit is thin, that is worth examining with an attorney.
Defense 5: Unclean Hands
Foreclosure is an equitable proceeding in Florida, and courts can deny relief to a party with "unclean hands." This defense requires specific facts showing the servicer's own misconduct contributed to or caused the default -- for example, misapplied payments, rejected timely cure payments, or failure to properly credit a loan modification trial period payment.
Defense 6: Statute of Limitations
Florida Statute 95.11(2)(c) gives lenders 5 years to file a foreclosure action from the date the loan is accelerated. If the lender previously filed a foreclosure action on the same default, voluntarily dismissed it, and then re-filed more than 5 years after acceleration, the statute of limitations may bar the new action. This is a fact-specific defense that requires review of any prior court filings.
Defense 7: Payment
If you believe you have made payments that the servicer has not properly credited, assert payment as an affirmative defense and gather all payment records -- bank statements, wire confirmations, certified mail receipts -- showing what was paid and when. A RESPA Qualified Written Request to the servicer seeking a full payment history is a useful discovery tool.
Defense 8: RESPA and Regulation X Violations
Violations of RESPA (12 U.S.C. § 2605) or CFPB Regulation X can be raised as affirmative defenses and counterclaims. Specific violations to look for include: failure to respond to a Qualified Written Request within 30 business days; proceeding to foreclosure while a complete loss mitigation application is under review (the dual-tracking prohibition); failure to provide written denial of a loss mitigation application with the reason and appeal rights; and failure to assign a point of contact.
What to Do After Filing Your Answer
Filing the answer stops a default but does not end the case. The lender will typically file discovery requests and eventually a Motion for Summary Judgment. If you have raised valid defenses, the motion for summary judgment is where you will need to present evidence. This stage almost always requires a qualified attorney. Contact a Florida foreclosure defense attorney or legal aid organization as soon as possible after filing your answer.
See our guide to Florida pro se foreclosure defense for more on what happens after the answer is filed.
Related Resources
- What to do when you receive a Florida foreclosure summons
- How many days to respond to a Florida foreclosure
- Foreclosure defense attorneys in Florida
- Florida pro se foreclosure defense guide
- Florida foreclosure timeline 2026
- 2026 CFPB Regulation X loss mitigation rules
- Loan modification guide for Florida
- HUD housing counseling in Florida
- Chapter 13 bankruptcy to stop foreclosure
- Deficiency judgment in Florida
Call Barrett Henry
Barrett Henry is a Broker Associate at REMAX Collective with 23+ years of Florida real estate experience. He provides free, no-obligation consultations for homeowners who have received a foreclosure summons and need to understand their options.
Call or text Barrett at (813) 761-0133 for a free consultation. Or submit your information online.
