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Most people do not realize that a foreclosure can be
defended in Florida. This does not mean the homeowner will prevail and not have to pay the delinquent payments. However, if a homeowner's equity in their home is protected by such a defense and they are not subjected to a fast foreclosure, they may stand a better chance to economically survive.
If the lender has not received its monthly payments when due, the borrower has defaulted on the mortgage and note. That does not mean the borrow 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 the borrowers Florida residence by bringing a foreclosure action under Chapter 702 of the Florida Statutes. In almost all instances the borrower is in the wrong, not because they wanted to stop paying on the mortgage, but simply because events in life resulted in a financial inability to pay on their mortgage. Although the borrower has defaulted, that does not mean the homeowner has to rollover and abandon their home or just stay there and wait for the inevitable. Beware of "Non-Lawyer assistance" programs which cannot represent you and protect you in a foreclosure lawsuit. At Vocelle & Berg we use all legal means to protect your home when you face foreclosure.
Do you know the full extent of your legal rights? Have you received notice that foreclosure proceedings will begin on your home? The lawyers at Vocelle & Berg 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 an experienced attorney who knows foreclosure law in Florida. We help people in your situation fight foreclosure every day. You must act quickly to avoid foreclosure on your home. In almost all cases you only have 20 days to respond to the summons and complaint. Having financial difficulties can be overwhelming for most people. Our experienced lawyers can explain your legal rights.
A majority of the Florida Foreclosures are brought by a handful of Florida Law Firms. These firms file thousands of foreclosures with most organized on an assembly line format with little or no attention to detail. If you call their offices a computerized call center answers the phone and generally insulate the attorneys and staff of those firms from your calls.
Because of their large volume, most legal documents are prepared in a generalized way through word processing merge documents. Often these forms fail to accurately describe your situation. Vocelle & Berg has the ability to exercise your rights, both Legal and Procedural, to protect your home from a Fast Foreclosure. The following are issues that are relevant in determining if you have defenses to a mortgage foreclosure. These defenses may be raised even if you are behind in your payments.
1. Due Process:
2. Unclean Hands
3. Lost Notes
4. Mortgage Electronic Registration Systems Inc.
5. Force-placed Insurance
6. Lost Payments
7. Failure to Accelerate the Note
8. FHA-Insured Loans
9. Accepting Payments After Foreclosure
10. Truth-in-Lending and HOEPA Violations
11. Fraud, Abuse, Collusion
12. Fair Debt Collection Practices Act:
13. Failure to Attach Note and Mortgage to Complaint:
14. Incorrect Notice or Service
§ 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. Unclean Hands: Unclean hands is a legal doctrine which is a defense to a complaint, which states that a party who is asking for a judgment cannot have the help of the court if he/she has done anything unethical in relation to the subject of the lawsuit. Thus, if a defendant can show the plaintiff had "unclean hands," the plaintiff's complaint will be dismissed or the plaintiff will be denied judgment. Unclean hands is a common "affirmative defense" pleaded by defendants, which must be proved by the defendant. Example: Hank Hardnose sues Grace Goodenough for breach of contract for failure to pay the full amount for construction of an addition to her house which she admits. The court denies any relief to Hardnose when Goodenough proves that Hardnose had shown her faked estimates from subcontractors to justify his original bid to Goodenough
§ 3. Lost Notes: Most foreclosure complaints allege that the lender lost the note. Often the lenders 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, had contact 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 may 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.
The attorneys at Vocelle & Berg have successfully defended mortgage foreclosures and in many instances have had the actual foreclosure lawsuits dismissed. Please contact us for a free consultation
