- Real party in interest
This is a procedural defense to foreclosure that can be extremely effective at stopping the lender’s ability to foreclose. It essentially questions the ownership of the mortgage and questions whether the foreclosing party is, in fact, the owner of the mortgage and note.
- Failure to state a claim upon which relief can be granted
This general defense attacks the lender’s ability to foreclose and is can be used in conjunction with one of the other foreclosure defenses.
- Failure to establish conditions precedent
Want to get a foreclosure action thrown out of court right away? Use this defense that attacks the lender’s pre-foreclosure processes.
- Failure to comply with FHA pre-foreclosure requirements
FHA requires every lender to mail a booklet called “How to Avoid Foreclosure” and set up a face-to-face meeting with the borrower before foreclosing (in most cases). If the lender does not take these steps, then it cannot foreclose.
- Breach of Contract.
It is not uncommon that in many instances a lender will do things that are improper, unfair or unjustified before starting the foreclosure process. Just as you have an obligation to pay the mortgage, the lender has a responsibility and obligation not to interfere with your ability to do so – like force placing insurance making the payments substantially more expensive than they should have been.
- Truth in Lending Act (TILA) violations enabling rescission.
As part of every loan transaction, the bank must provide you correct disclosures at the time of closing, like the amount of the finance charge and APR. If these disclosures are inaccurate, the loan may be statutorily rescindable under TILA. Rescission means the loan is cancelled and all money paid to the lender is refunded to the borrower.
- Truth in Lending Act (TILA) violations enabling damages
If you purchased the property with the loan or used the proceeds to refinance and proper disclosures were not given to you the borrower, then you may be entitled to money damages to offset the foreclosure.
- Home Ownership and Equity Protection Act (HOEPA)
This is a very powerful federal law governing high cost refinance loans. If your loan is under $150,000 or the initial rate was above 8%, you should evaluate your loan for violations of this act. Violations here enable rescission and substantial money damages that can greater than the loan’s dollar amount.
- Failure to Provide a Correct Notice of the Right to Rescind
There is a specific notice requirement that must be provided to refinance customers at closing. If this form is inaccurate or incorrect, the loan is rescindable up to three years after the closing date.
- Real Estate Settlement Procedures Act
This federal law governs many types of disclosures that lenders must provide at the time of closing, in addition to prohibiting things like kickbacks and unearned fees. It enables damages, and sometimes rescission if the error triggers TILA.
- Fair Debt Collection Practices Act
This federal law requires servicers or lenders who obtain the mortgage after default to follow a specific protocol in attempting to collect on a debt. A failure to follow this law enables statutory damages and attorney’s fees.
- Fair Credit Reporting Act
This federal law governs lenders ability to report information about the mortgage and requires the accurate reporting of negative information. A violation of this act also enables damages and attorney’s fees. In addition, Punitive damages might be available under this act.
- Unconscionability
This defense is focused on the events surrounding the creation and closing of the mortgage loan. A violation here gives the court great leeway in deciding whether the mortgage should be voided or changed.
These are just a few options for you to consider, we do not charge for an initial consultation, to see if we can help you to save your home and defend your foreclosure rights. You cannot afford to wait! Call (561/620-9499) or E-mail Us Today!
