Foreclosure Defense – It’s becoming a harder case to litigate, but there are still defenses to a foreclosure lawsuit.
If there is one thing homeowner’s fear it is missing a payment to their bank. Generally, they don’t know what happens next. They don’t know if the bank will take their home back in the next month. These thoughts occur often in the midst of significant financial turmoil for a homeowner – they may be going through a divorce or they have lost their job. I am often telling people to rest assured that generally the house isn’t going back to the bank within a month. This is especially true if the bank hasn’t filed a foreclosure lawsuit yet. The homeowner may have options and might be able to defend that foreclosure lawsuit.
How does a homeowner defend a foreclosure?
Because of protections under Florida law, the bank has to get a court order prior to foreclosing. Specifically, under Fla. Stat. 702.01, the bank has to file a lawsuit to take back your home (often referred to as “security” or “collateral”). This may seem like an open and shut case – someone missed a payment and now the bank should get the house. The bank’s case is not open and shut. This is good news to those facing a foreclosure lawsuit, because many of them want to save their homes. They’ve raised their children there, they have A+ rated schools in the vicinity, it’s close to work, etc. The borrower’s financial hardship may be short term. When faced with this scary proposition, many homeowners don’t know where to turn and hiring an attorney when the homeowner can not afford their mortgage payments may seem impossible.
There are defenses to foreclosure and the right foreclosure defense attorney should understand your financial hardship, the turmoil it has caused in your life, and be willing to help to the fullest extent of their skills and knowledge. Instead, homeowners now get ever evolving ads for “Foreclosure Defense” from attorneys who do not stay up-to-date on the ever-changing laws, face countless foreclosure defense scams, and the homeowner is stuck to try to save their home despite all of this.
I strive to be an attorney that meets my clients goals no matter what the situation.
I represent clients in whichever outcome they want. It’s my client’s choice. For example, some only want to go to trial and have their day in court. Some only want me to try to help them save their home. My firm has litigated hundreds of foreclosure cases throughout our existence. This includes Fannie Mae/Freddie Mac Foreclosure, FHA Foreclosure, and VA Foreclosure cases. This benefits you because the law requires that the bank must prove their case. If they don’t, the judge can dismiss (throw out) the case until they get it right. This area of law is constantly changing and requires me to stay on top of these changes. Despite this, my foreclosure defense representation focuses on making the bank prove that they have the right to foreclose and seeking loss mitigation options for my clients.
If you have just been served in a foreclosure lawsuit, don’t feel your current counsel is looking for ways to save your home, you have a foreclosure trial or summary judgment coming in a week, or if a sale date has been set in your case, speaking with an attorney that handles these cases every day can be invaluable.
How do I fight the banks?
The key to waging any successful defense to a foreclosure lawsuit filed in the state of Florida is to focus on what you must do in the first 20 – 30 days. Generally, if you have been served in a lawsuit, be it foreclosure or otherwise, you will typically have 20 – 30 days to file a response to the complaint. Due to some variations, this time period can change – but it will be located on your Summons. A summons in a lawsuit is where the process-server wrote the date and time on which you were served. It is important that you are mindful of this date – it dictates when you must file a response to the Complaint.
What is in a foreclosure complaint?
A foreclosure complaint sets out the allegations that the bank wants the court to believe. For example, they have to say what your default was. This can include a transfer of your rights in the property secured by a Note and Mortgage or a non-payment of your monthly payment. The bottom line is, that in Florida, a foreclosure is an extremely technical process. There are many of safeguards that are put in place for the homeowner involved in the lawsuit.
You may address these allegations in a response to the complaint. I cannot stress enough that filing a response is extremely important. As it states on the summons, a phone call won’t do – this has to be in writing. Throughout the years, I’ve filed various motions aimed at the Complaint that set up defenses that go all the way to trial. Knowing what is in the complaint, and what is missing, can help you achieve your goals as well. For example, a stronger defense may help you work out a settlement with the bank.
Would you like to learn more information about foreclosure defense?
Want to talk to an attorney to discuss your options? Call me at (813) 502-6768.
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