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5 Foreclosure Defense Strategies to Explore

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When faced with a foreclosure, it can feel as though there is no way out. However, it is always advisable to consult with an attorney before giving up one’s right to fight the action. There may be a viable defense for the debtor to raise and avoid foreclosure altogether.

Here are five of the most commonly used defenses to foreclosure that are advisable to explore with a foreclosure defense attorney.

1. No Proof of Ownership

In short, if a lender cannot prove it owns the loan, it has no standing to foreclose on the loan. In order for a bank to prove it holds the mortgage, it must produce the promissory note. It is not uncommon for the original lender to sell the loan to other banks, and sometimes the original note can get lost in the shuffle. The borrower should never have to pay for such oversights, so in situations where the note cannot be produced, the court will usually rule in favor of the debtor.

2. Procedural Errors

Florida sets forth procedures that must be adhered to in order to foreclose on a home loan. If the lender neglects to follow these requirements and the borrower is negatively impacted as a result, there may be grounds for a dismissal of the suit. There may also be procedural conditions detailed in the mortgage itself that must be followed. For instance, most mortgages include a clause that requires the lender to inform the debtor that the loan is in default before the foreclosure process can begin. This gives the debtor the time to explore foreclosure alternatives or bring the loan current.

3. Military Protections

If the debtor is a member of the armed forces who is currently on active duty, the Servicemembers Civil Relief Act offers protection from foreclosure. If foreclosure action is taken during this time, the debtor would receive an automatic one-year postponement. Even if the mortgage was taken out following one’s active duty service, the borrower will receive protections against default judgments under the Act.

4. Unethical Actions

Mortgage lenders are required to act ethically by law. If an individual can prove his or her lender committed fraudulent or even illegal actions, the “unclean hands” defense could be applicable. One of the most commonly cited examples of this in foreclosure defense strategies is predatory lending, which involves unfair loan terms on a borrower through coercive or deceitful practices. Additionally, if the lender has violated any federal or state laws for consumer protection, such as the Florida Consumer Collection Practices Act, the debtor may have a viable defense. These laws protect borrowers from abusive tactics by collections agencies and lenders seeking repayment.

5. Lender Error

Finally, if a serious mistake made by the lender contributed to the debtor’s delinquency, there may be grounds for fighting the foreclosure. For example, if a payment was made that would render the account current but not appropriately attributed to the debtor’s account, it would be the fault of the lender, not the debtor. Such errors will usually be identified before foreclosure action is taken, but if that is not the case, uncovering them could weaken the bank’s case.

Interested in learning whether one of these foreclosure defense strategies could be a fit for your case? Explore these options and possible alternatives to foreclosure during a free consultation with one of our attorneys. Contact our office to schedule yours today so that we can begin seeking justice together.

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