What Are Some Defenses to Foreclosure?
On October 1, 2018 by Eric Klein
Foreclosure defenses have not traditionally been successful in the past. However, nowadays, homeowners are able to successfully challenge foreclosure actions, particularly because the errors within the mortgage servicing industry became apparent. That said, it is important for homeowners to have a skilled attorney on their side who has experience in handling such legal matters in order to effectively challenge foreclosure actions.
Below is a list of some of the more common foreclosure defenses that can be brought to court:
- The foreclosing party did not follow state procedures: Every state has its own procedures for foreclosures and, in some cases, if a foreclosing party does not follow the procedural requirements for bringing a foreclosure action, you can challenge the foreclosure. If successful, the court will issue an order that asks the foreclosing party to start again. In most cases, judges overlook minor errors, such as name misspellings, which are not worth fighting over. On the other hand, a more serious violation will warrant a tougher response.
- The foreclosing party cannot prove it owns the loan: The mortgage holder is the only party who can foreclose. During the foreclosure crisis, it was not uncommon for attorneys to be able to successfully use a “produce the note” defense to prevent foreclosures since promissory notes are notoriously difficult to obtain since in many cases, the debt has been sold to different banks and investors. Of course, now it is much more difficult to win a case based on this type of argument, but there is always room for an exception, depending on the details of a case.
- The mortgage servicer made an error: Everyone makes mistakes, including mortgage servicers. You could challenge your foreclosure based on the following mistakes: they credited your payments to the wrong party, they imposed excessive fees or fees that were not authorized by mortgage contract, or they are severely overstating the amount you must pay to reinstate your mortgage.
- You are a service member on active duty: The Servicemembers Civil Relief Act (SCRA) provides those who are on active military duty with special protections. For example, if you took out your mortgage before you were on active duty, your foreclosure needs to take place in court, regardless if foreclosures in your state generally take place out of court.
Foreclosure Defense Attorneys in Boca Raton
If you are in need of legal counsel because your home is in foreclosure, reach out to an experienced foreclosure defense attorney in Boca Raton. At Klein Law Group, our skilled foreclosure defense attorneys have the knowledge and experience to navigate the complexities of such cases and will do what is necessary to achieve the goal of retaining your home.
Get started on your case today and contact our law firm at 561-220-6659 to request your free initial case evaluation