Fight for your home! Our goal is to extinguish the foreclosure. In many cases, it is possible to work out new financing arrangements; otherwise, we can manage a foreclosure in a manner most advantageous to the homeowner without litigation. Nonetheless, we fight the banks to make them prove their cases. A mortgage foreclosure action is not as simple as showing a homeowner failed to pay.
There are numerous avenues we enforce to defend you from a foreclosure. Do NOT assume nothing can be done.
If your lender has not received their monthly payments when due, you may have defaulted on the mortgage and note. A default on a mortgage note may give the lender a right to seek a foreclosure, or sale of your residence to satisfy the amount due on the mortgage note.
“Non-Lawyer Assistance” programs and companies cannot represent you and protect you in a court of law against a foreclosure lawsuit or proceeding.
You must act quickly to avoid foreclosure on your home. If a lender pursues a foreclosure action on your home, there are certain rights that may include the following:
1. Due Process
If your lender pursues a foreclosure action, you are entitled to full discovery and may demand the production by your lender of all documents and information in their possession and control, which may affect your rights.
You may have legal rights pursuant to the Real Estate Settlement and Procedures Act. If you refinanced your home and your current mortgage was executed less than three years ago, you may still have the right to rescind the loan and cancel finance charges if your lender failed to provide your with timely disclosures.
3. Lost Notes
Some foreclosure complaints may allege that the lender lost the note. Often the lender’s attorney fails to attach a copy of the mortgage note that you signed. The proper assertion of this defense may stop the foreclosure until the lender can supply a copy of your mortgage note.
4. Mortgage Electronic Registration Systems Inc.
The foreclosure against you is often brought in the name of MERS. Generally you have never heard of MERS. Although MERS is seeking to foreclose your mortgage and alleges it is the owner of the note and mortgage, MERS in fact generally holds the mortgage as a nominee for the true Lender who in fact holds and owns the Mortgage Note which you signed. The relationship of these entities may materially affect your rights and a foreclosure defense attorney can identify the situation to protect you.
5. Force-placed Insurance
This is where lenders purchase insurance in the mistaken belief that the homeowners have let their policy lapse. If the homeowners have their own homeowner’s insurance policy, they should not be paying for the lenders insurance.
6. Lost Payments
Sometimes payments are not correctly applied to a buyer’s account.
7. Failure to Accelerate the Note
The loan cannot be foreclosed until the loan is accelerated, if required, and notice must be sent to the buyer.
8. FHA-Insured Loans
FHA loans have special servicing requirements, including a counseling notice mailed to the mortgagor within 45 days of default, a face-to-face meeting with the borrower within 90 days of default, and a notice of available counseling. Failure to comply with these rules is something an experienced foreclosure attorney can identify.
9. Accepting Payments After Foreclosure
There may be a defense to the foreclosure if the lender accepts payments after filing foreclosure, and the mortgagor is not in bankruptcy.
10. Truth-in-Lending and Home Owner and Equity Protection Act (HOEPA) Violations
Truth-in-Lending and HOEPA violations can be identified by an experienced foreclosure attorney. An attorney can review the original disclosure documents to determine if there was a violation.
11. Fraud, Abuse, Collusion
Where the loan displays fraud, abuse or collusion, these may be possible defenses to foreclosure.
12. Fair Debt Collection Practices Act (FDCPA)
Attorneys who file foreclosure papers are debt collectors and must comply with the FDCPA.
13. Failure to Attach Note and Mortgage to Complaint
The complaint is subject to a motion to dismiss if the note and mortgage are not attached to your foreclosure action.
14. Incorrect Notice or Service
Service by publication is only valid after an attempt at personal service. In order to be legally valid all information in the notice must be accurate.
If you are facing foreclosure, don’t resign yourself to having your credit ruined or having a Deficiency Judgment entered against you. We understand that sometimes life brings unexpected, unwanted surprises. Illness, lay-offs, divorce, loss in a law-suit, or even just a cut-back in hours can suddenly make owning a home unfeasible. The most natural instinct is to hide from the bank and hope it will all work itself out, but that approach leaves you powerless.
In the United States right now, 1 out of 425 housing units is facing foreclosure. If you are facing foreclosure, you are not alone. But without legal representation that is well versed in fighting foreclosures, a bank can swiftly take your home.
What you need: someone on your side willing to battle for your home and provide you with the best possible outcome, planning to work out a win-win situation that permits you a clean start while keeping your credit history intact.
For a consultation and legal assistance, contact Keller Law LLP today.