At Graham Legal, we are dedicated to safeguarding homeowner rights and seeking justice when those rights are infringed upon. When this occurs, raising an equitable defense may be advisable. These defenses are rooted in proving that the debtor was treated unfairly in a way that directly caused him or her to fall behind on mortgage payments. One example of an equitable defense to foreclosure is unclean hands, and we’re sharing how individuals facing foreclosure can go about asserting that, with help from a Florida foreclosure defense attorney.
The Unclean Hands Defense
If a lender’s improper or unlawful actions are to blame for a borrower’s default, its foreclosure case may be dismissed on the grounds of unclean hands. In some cases, this involves a lender advising a homeowner to stop making payments to increase his or her odds at receiving a loan modification, although this wrongful practice is not as prevalent anymore. In other instances, the action may come in the form of a simple clerical error. The worst cases might involve unethical and even unlawful actions, such as making fraudulent transactions. In any of these instances, the borrower has the right to mount an unclean hands defense. However, providing such a defense is often easier said than done.
Hurdles to Overcome
Those looking to establish this defense will not only need to demonstrate that such behavior occurred but clearly link that behavior to the subsequent default. A clerical error resulting in a wrongfully applied payment does not render future missed payments on the part of the borrower permissible. Additionally, if a loan modification was promised and the debtor was advised to cease payments verbally, a lack of written proof of such an agreement would likely render the exchange useless for mounting one’s unclean hands defense.
Ultimately, demonstrating bad faith behavior to a judge is an uphill battle. Therefore, keeping careful records and enlisting an experienced foreclosure attorney is essential for obtaining a judgment in one’s favor. In many instances, a more suitable defense or even an alternative to foreclosure might be available to the borrower, and thus seeking out a lawyer’s expertise early on is advisable.
If you are unsure whether unclean hands is a viable defense to your foreclosure, or would like to learn more about your options, reach out to a Florida foreclosure defense attorney at Graham Legal today to schedule a free consultation.