At Draper Perry Law LLP, our law firm provides experienced and knowledgeable legal representation in asserting effective residential and commercial foreclosure defenses. We pride ourselves on our innovative and up-to-date legal defenses used to save our clients’ homes.
How Can I Assert a Foreclosure Defense?
Invalid Affidavit Banks have started re-examining their affidavit processes. In the past, affidavits, which are sworn statements, were issued by “robot.” Now, courts will not allow this; however, some banks still use the process. Therefore, several foreclosures have been dismissed by asserting this foreclosure defense.
Unconscionable Mortgage Terms
This defense can be used in cases where the terms of the mortgage are unfair. While the success of this defense is based on your circumstances, it is important to note that the mortgage term must be extremely unfair for this defense to be successful.
Service Member on Active Duty
If you are a Service Member on active duty, you are covered under the Service members Civil Relief Act (SCRA). If a foreclosure is initiated while you are on active duty, you are automatically eligible for a nine month postponement/continuance of the matter if requested in writing.
Failure to follow State Procedural Guidelines
Banks and their attorneys must follow state specific rules and court procedures in order to prevail in foreclosure. One example, as indicated above is a false, misleading or inaccurate affidavit of fact. Others include service of process and Notice.
Mistake and/or Error
Loan servicers make mistakes quite often when servicing a loan. Mistakes may include posting a payment to the wrong account, failing to disburse escrows, overstating the amount needed to reinstate a loan, promising a refinance or modification if you go into default first, or adding excessive fees.
Failure to Prove who owns the Mortgage
In some courts, the inability to prove ownership of the mortgage will result in the dismissal of the action. In Palm Beach County Court of Common Pleas, in a recent case, a foreclosure was dismissed because the Plaintiff Bank could not prove they owned the mortgage at the time the Lawsuit was filed. There are also protections in place to help consumers under federal and state laws. The law must be followed closely to ensure that consumers are treated fairly. There are consumer protection acts in place to protect consumers from unfair or deceptive lending practices. If lenders fail to follow the laws, are unfair in dealing with consumers, are not properly licensed or make mistakes and errors, they can be held accountable for their behavior.
Draper Perry LLP maintains a general civil law practice for individuals and families.
We are a full service law firm offering advice and representation across a wide range of areas most important to our clients. Clients come to us seeking advice and counsel on all their legal needs, because they appreciate our personal approach and the high level of communication we bring to our representation and client interactions. No matter what your legal needs are at,the moment, contact Draper Perry LLP at our Clearwater office. If we can't help you, we will help find you someone who can.