Lack of Successful Defenses
Until the 2000s, legal defenses against foreclosure actions by the lender were rare. With the rise of the foreclosure crisis with real estate, these defenses became more possible and prevalent in use. It is more possible to challenge a foreclosure when the homeowner takes certain precautions, hires a lawyer and communicates the issues with the financial institution. Evidence in the mortgage industry can also lend to the possibility of a successful defense. With certain pieces of evidence, the court may side with the homeowner rather than the lending agency. The lawyer can implement the strategic defense successfully in particular cases.
Raising a Defense to Foreclosure
To have any chance of using a legal defense for the foreclosure action of the lender, the individual must do so before a judge. While this is an automatic action in half of the states in the country, not all states promote this process. Foreclosures are normally civil matters. However, if the foreclosure is outside of the courts through nonjudicial foreclosure processes, there is no legal challenge possible in automatic actions. This requires the filing of a lawsuit that the foreclosure is illegal because of a certain reason. This can place the action on hold until the court reviews the matter fully.
The Common Foreclosure Defenses Possible
To defend against the foreclosure action of a bank or lending institution, the individual may need to look closer at the action and the lender. If the foreclosing party does not follow the state procedure, he or she may have a valid challenge. Some lenders cannot prove that they own the loan and this is a lack of standing in the case. Other foreclosing parties can make mistakes in the process. Any of these three are proper defenses for the foreclosure, and the individual may have a right to stop or stall the process with a real estate lawyer.
Not Following State Procedures
Each state in the country has certain procedures regarding foreclosure. If the foreclosing party does not follow these necessary requirements, it is possible to stop the action. The homeowner may have a valid right to challenge the foreclosure and stall it long enough that the lawyer can implement a legitimate challenge against the action. If the challenge proves successful, the court can require the lender to start the procedure all over again which can give the homeowner time to pay off the loan or seek some other resolution to the situation.
Lack of Standing
The mortgage holder is the only party that has a right to initiate the foreclosure action. When this action starts, the original lender may sell the loan to another company. If the holder does not have the ability to produce the note of the loan, foreclosure may need to push back until the company is successful with this action. Even though it is less likely that this defense will succeed, there are times when the company makes a mistake with documentation and may not have the necessary information to start the proper foreclosure process.
If the mortgage lender makes a mistake in the loan account, with paperwork or even with other details such as insurance or overpayments, the foreclosure process may not begin because the company will need to discover what happened and how to fix it first. Credits to payments may proceed to the wrong party, multiple actions may occur simultaneously to harm the homeowner, excessive fees and overstating what the person needs to pay can all lead to serious mistakes with the mortgage company. When the lender does make these mistakes, the foreclosure action usually halts to give everyone time to determine the truth of the legal defense and understand if a foreclosure is even the right action against the homeowner. With too much put into the loan, it is best to reassess.
Legal Support for Foreclosure Defenses
When the homeowner faces the potential foreclosure, he or she will need a real estate agent to support various legal defenses to halt the process or to look into why the foreclosure action is occurring. The lawyer may help to stall the action or to prevent the foreclosure from happening.
Florida is a judicial foreclosure state and borrowers have options if they have to miss a mortgage payment. Call us at (561) 838-9595 for a free consultation to discuss the details of your situation.
Provided by HG.org