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Foreclosure
Defense
Adams & Associates, P.A.
represents clients facing foreclosure proceedings. In many cases, it is
possible to work out new financing arrangements, counsel on the sale of
property or otherwise manage a foreclosure in a manner most advantageous
to the homeowner without litigation. In some cases, a Chapter 13
bankruptcy may be utilized to prevent the foreclosure of a home.
Most homeowners do not realize that
a foreclosure can be defended in Florida. The fact that you can defend
against a foreclosure proceeding does not mean that you will prevail and
not have to pay back your mortgage payments. However, if you have equity
in your home it may be protected by such a defense and you may not
be subjected to a fast foreclosure, you may stand a better chance
at economic survival.
If your lender has not received
their monthly payments when due, you have defaulted on the mortgage and
note. That does not mean that you must leave the property immediately, as
is the case when a person fails to pay their rent.
A continuing default on a mortgage
gives the lender a right to seek the judicial sale of your Florida
residence by bringing a foreclosure action under Chapter 702 of the
Florida Statutes. In almost all instances you are in the wrong not
because you wanted to stop paying on the mortgage but simply because
events in your life resulted in a financial inability to pay on your
mortgage. Although you have defaulted and are in the "wrong" that does not
mean that you have to rollover and abandon your home or just wait for the
inevitable.
Our Foreclosure Defense Attorneys
may be able to use Florida's foreclosure laws to protect your home when
you face foreclosure. We strongly advise you to beware of "Non-Lawyer
assistance" programs and or companies which cannot represent you and
protect you in a court of law against a foreclosure lawsuit.
Do you know the full extent of your
legal rights? Have you received notice that foreclosure proceedings will
begin on your home? Adams & Associates, P.A. can explain your legal rights
and options and put those rights to work for you. Contact us today and
find out how you may stop home foreclosure with the foreclosure laws of
Florida.
You must act quickly to avoid
foreclosure on your home. In most cases you only have 20 days to respond
to the summons and complaint.
We know that financial downturns can
be overwhelming and we provide alternatives in this difficult time.
The following can be relevant
issue in determining if you have defenses to a mortgage foreclosure. These
defenses may be raised even if you have fallen behind on your mortgage
payments.
1.
Due Process:
Pursuant to procedural due process,
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.
2.
Rescission:
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 you with timely disclosures.
3.
Lost Notes:
Most foreclosure complaints 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 Florida Rules of Civil
procedure require that "All ..., notes, ... or documents upon which action
may be brought or defense made, or a copy thereof or a copy of the
portions thereof material to the pleadings, shall be incorporated in or
attached to the pleading." 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. (MERS):
Often the foreclosure against you is
brought in the name of MERS. Generally you have never heard of MERS,
contacting with them and 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 (whatever that is) 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
may be asserted by a foreclosure defense attorney.
5.
Force-placed Insurance:
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 an affirmative defense.
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 HOEPA Violations:
Truth-in-Lending and HOEPA
violations may be raised as a defense. However, the most powerful remedy
available -- i.e. voiding the mortgage is only available within three
years of execution of the mortgage (if its non-purchase mortgage and
required disclosures were not delivered to you). An attorney must review
the original disclosure documents to determine if there was a violation,
but failure to disclose material terms in writing, or high interest rates
on a non-purchase mortgage, almost always warrant careful investigation.
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:
Attorneys who file foreclosure
papers are debt collectors and must comply with the FDCPA. While not a
defense per se to the foreclosure action, it does give rise to a statutory
and actual damages claim.
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 the complaint.
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.
To determine the option best
for you, we must hear from you in order to gather the relevant
information. We therefore urge you to apply for the above relief at
once, so we can begin working to help you avoid the tax liabilities and
credit impact of foreclosure.
To help us serve
you better, please complete this form.
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