FORECLOSURE DEFENSE OVERVIEW

In certain cases, mortgage foreclosure defense may be so effective that the lender prosecuting the foreclosure is unable to successfully foreclose on the property.  This usually happens in cases involving “lost promissory notes” where the foreclosing Lender (Plaintiff) is unable to prove standing sufficient to enforce the mortgage.

While borrowers are litigating foreclosure of their homes, they are not required to make their normal monthly mortgage payments.  The legal process will afford borrowers time to reinstate the mortgage, to sell the property, to file a bankruptcy or to move out.  Borrowers may be able to force their lenders to completely rewrite the terms of the mortgage enabling borrowers to keep their properties.

Borrowers may have valuable defenses and counterclaims against the lenders that could actually prevent foreclosure and possibly require such lenders to pay them damages.
Throughout America, judges are ruling against lenders for incomplete record keeping, fraud, and for violations of the Truth-In-Lending-Act (TILA). 

In many instances the current lender is probably not the same entity that actually originated the loan for the purchase or refinance of the borrower’s property. It’s possible that the lending institution suing to foreclose on the borrower’s property is not the owner of the note and mortgage, or it has not been properly assigned the note and mortgage.  One way to find out is by searching the foreclosure complaint for a copy of the note/mortgage and purported assignment, and agency agreement if the lender alleges to be the agent of the owner of the note and mortgage.  

If these documents are not attached to the foreclosure complaint, the lender may not have possession of them.  The lender may be attempting to substitute the original note and/or mortgage with a purported copy, known as a “Count to Establish Lost Documents.”  Please note that there are strict legal requirements to establish a lost note and/or mortgage, and the borrower’s existing lender may be unable to meet the requirements in court.

If the borrower’s current lender is not the original owner of the note and mortgage, the lender probably has never read the terms and conditions of the loan.  The borrower’s mortgage may require the Plaintiff to “Accelerate the Loan.”  That is to say, to demand the entire balance of the note.  If the current lender failed to do that, the borrower may be entitled to an opportunity to cure the mortgage by paying the reinstatement amount.  It is also a common business practice for lenders to inflate the balance due on the mortgage by charging borrowers junk fees such as Broker Price Opinions (BPO), property inspections and other property preservation expenses.  In essence, lenders may have filed improper foreclosure lawsuits that entitle borrowers to a judicial remedy to save their homes.   However, time is of the essence, to contact a foreclosure defense attorney.  Once borrowers are served a copy of the foreclosure complaint, they have 20 days to respond, so they need to retain an attorney immediately to defend against foreclosure the possibly flawed foreclosure complaints.  Give our firm a call to protect your rights.


Contact a Foreclosure Defense Lawyer at Dominguez & Associates, P.A.