It is important to know what foreclosure defenses exist if you are currently facing foreclosure. Today on the Weidner Law blog we are going to talk about what foreclosure defenses are available to you so that you can fight back.
Foreclosure Defenses: Common Foreclosure Defenses You Should Know
Foreclosure defenses differ depending on the state where you live because state procedures for foreclosure differ by state. Today we are focusing on foreclosure defenses in Florida.
Foreclosure in Florida
Let’s quickly cover the foreclosure practice in Florida.
The first step in foreclosure is when the homeowner defaults on their loan. After the homeowner defaults, they receive a notice of default from their lender.
After receipt of the notice of default, the lender will go on to file a complaint with the court and you will have to file an answer to the complaint.
The next step has two options – you can agree to mediation to try to negotiate your way through the situation or you can get a default judgment which admits that you acknowledge that you owe the money and that the loan holder has a case.
If you receive a default judgment, the next step is a summary judgement. Following the summary judgement, the bank will apply for an order of sale. Once approved by the court, a date will be set to auction your foreclosed home.
If you go to mediation, you can negotiate and settle the case or you can continue with the foreclosure process and go into the discovery phase of the case. If you settle the case, the court will dismiss it.
If you do not come to an agreement in mediation, a motion for summary judgement will be made. If the summary judgement is granted, the lender will file for an order of sale and the court will set a date for the home to be auctioned off.
If the motion for summary judgement is made and you have a response to the request, you must file that with the court. From here, the case will go to court. The case will be tried and the court will file a judgement depending on the trial outcome. Once the judgement is made, the lender may file for an order of sale with the court and the home will go to foreclosure auction.
The Foreclosing Bank Didn’t Follow The Required State Procedures
Every state has their own procedure for foreclosures, and the bank that issued the loan to the homeowner must ALWAYS follow the required state procedures. In the event that the foreclosing bank does not follow the required state procedures, the homeowner has a legitimate grounds to take the bank to court.
The thing to remember here, however, is that even though you have a legitimate argument to put up in court, this is not going to “fix” your foreclosure problem, but it will delay things in court while the matter is remedied. For you, this means that you get more time to raise the funds that you need to get caught up on your payments or at least come up with enough of your past due payments to keep foreclosure at bay.
The Foreclosing Party Can’t Prove It Owns The Loan
Another common reason for delaying the foreclosure process is when the party that is attempting foreclosure is unable to prove that they own the loan on the property. By law, the foreclosing party cannot begin to foreclose on the property unless they can prove that they are the party that is owed. If there is no proof that the foreclosing party owns the loan, they will not be permitted to foreclose on the property until they can provide such proof to the courts. In the meantime, you have the time to try to get your finances in order while the foreclosure process is delayed.
Again, it’s important to remember here that these procedural mistakes will stop a foreclosure temporarily and buy you time to get yourself organized, but they will not completely eliminate the pending foreclosure process, it will simply delay things.
The Mortgage Servicer Made A Serious Mistake When Handling Your Loan
In some instances, when a mortgage servicer makes a serious mistake during the handling of your loan, you have case enough to challenge the foreclosure in court. The outcome of the case may not be as simple as in other types of foreclosure defenses depending upon the type of mistake that the mortgage servicer made when handling your loan. Significant mistakes can actually blow up into huge court cases that can get quite complex and cause significant delays.
You’re A Service Member On Active Duty And Protected By The Servicemembers Civil Relief Act
If you are a service member who is currently on active duty, your loan holder may not pursue a foreclosure case while you are on active duty under the Servicemembers Civil Relief Act. This kind of breach is one of the easiest defenses to foreclosure for your attorney to prove, but it is also quite inconvenient for you as an active service member.
The Statute Of Limitations Has Passed
As is often the case, there is a statute of limitations on foreclosure. If the statute of limitations comes to an end, the loan holder may not pursue foreclosure. If the loan holder attempts to pursue foreclosure, you have case enough to fight them in court for illegal practices.
The Servicer Used A Defective Affidavit Or Declaration
Another common defense to foreclosure is when a loan servicer uses a defective declaration or affidavit when pursuing their case. There can be any number of reasons that a lender may do this, but there are no situations where this is acceptable.
Ready to Talk to an Attorney About Foreclosure?
If you are ready to talk to a real estate attorney about foreclosures, Weidner Law can help! Just give our office a call today to start fighting back against your foreclosure.