Here are some potential circumstances that may help you in a foreclosure defense.
1. Due Process
Pursuant to state and federal laws, you have certain rights, among which is a thorough investigation of all legal documents presented by the lender to support their claim.
2. Rescission
Under RESPA (Real Estate Settlement and Procedures Act) lenders have three business days after the receipt of a written application to submit certain disclosures. If your loan was executed within the past three years, you may still be able to rescind your loan if the lender did not provide these disclosures in a timely manner.
3. Lost Notes
Many homeowners have been able to save their home because the lender was not able to produce a copy of the note. This happens in many cases in which the notes have been sold by the lender on the secondary market.
4. Mortgage Electronic Registration Systems Inc. (MERS)
MERS is a privately held company that electronically records mortgages for lenders. However, MERS does not originate or service loans, and the question that we will uncover is who the actual holder of the mortgage is, MERS or the original lender?
5. Force-placed Insurance
When a borrower enters into a mortgage contract with a lender, property insurance is typically required. If these insurance policies lapse, in some cases the lender will purchase insurance on the borrowers behalf before they have the opportunity to purchase their own policies. In some instances, the lender will purchase insurance the homeowner does not need. These added expenses can sometimes cause financial hardship, ultimately leading the borrower to default on the loan.
6. Lost Payments
Is the lender pursuing foreclosure proceedings against you because they allege you missed a payment that you claimed to have made? We will review to ensure that all payments were property credited to your account.
7. Failure to Accelerate the Note
If you fail to pay a mortgage payment by its due date, the lender may invoke the acceleration clause in your note and require that the remaining payments on the note are due immediately. If your mortgage does not contain this clause, the lender can only foreclose on the past unpaid payments.
8. FHA-Insured Loans
If your mortgage is an FHA-insured loan, and you have missed a payment, you are entitled to speak to a FHA housing counselor. The homeowner should contact the FHA immediately as they can assist in working with you and the lender to help negotiate payment terms.
9. Accepting Payments After Foreclosure
If the borrower is not in bankruptcy and the lender accepts payments after filing foreclosure, there may be a defense to assist the borrower to allow them to bring the mortgage current and prevent the foreclosure.
10. Truth-in-Lending and HOEPA Violations
Truth-in-Lending and HOEPA (Home Owners Equity Protection Act) protect homeowners from predatory lenders. This usually applies to refinance or home-equity loans and requires that certain disclosures must be delivered to the homeowner within three business days. If a lender fails to follow the HOEPA guidelines, the homeowner can sue the lender and recover statutory damages.
11. Fraud, Abuse, Collusion
When a lender has issued false or misleading statements in an attempt to coerce a borrower into entering into a mortgage, the homeowner has a potential defense to prevent a foreclosure.
12. Fair Debt Collection Practices Act
The FDCPA is a U.S. statute added as part of the Consumer Credit Protection Act established to eliminate abusive practices in the collection of consumer debts. FDCPA allows consumers to obtain validation of debt information and ensure the information’s accuracy.
13. Failure to Attach Note and Mortgage to Complaint
If a lender filing foreclosure fails to attach a copy of the note and mortgage to the complaint, the complaint is subject to dismissal.
14. Incorrect Notice or Service
If a lender has filed a foreclosure notice, all information must be accurate. Verification of the accuracy of the information obtained in the document is a potential defense against foreclosure on your home.
Before we determine the best course of action to defend against a foreclosure, we will perform a thorough review of your documents and the action filed against you. Time is of the essence and to properly strategize a defense against your lender, we must begin immediately.
