The Ticktin Minute November 14, 2016 – Most Common Foreclosure Defenses

Foreclosure is the legal process in which a bank of any other lender claims possession of property belonging to a borrower because they have stopped making payments to the lender and are in default of the Mortgage and/or Promissory Note Agreements. If you are in foreclosure or being threatened with foreclosure, there are still options you can undertake in order to save your home. These options are known as foreclosure defenses. The five most common foreclosure defenses are as follows:

  • The Original Lender Engaged in Unfair Lending Practices;
  • You Are a Service member on Active Duty;
  • The Foreclosing Party Didn’t Follow State Procedures;
  • The Foreclosing Party Can’t Prove It Owns the Mortgage; and/or
  • The Mortgage Servicer Made a Serious Mistake.

The Original Lender Engaged in Unfair Lending Practices

One of the common foreclosure defenses occurs where the lender engaged in unfair lending practices. You may be able to contest your foreclosure by proving that your original lender violated a federal or state law designed to protect borrowers from illegal lending practices.

You Are a Servicemember on Active Duty

Many people don’t know that Servicemembers are given special treatment by the Servicemembers Civil Relief Act (SCRA). If a foreclosure is initiated while you’re on active duty, you can receive a postponement of the proceeding by requesting it from the court in writing.

The Foreclosing Party Didn’t Follow State Procedures

Another one of the common foreclosure defenses is where a party didn’t follow state procedures. If the foreclosing party doesn’t follow all of the special procedures it takes to file a mortgage (such as providing the borrower with a notice of default) then you may be able to claim a defense and postpone or stop the foreclosure proceedings.

The Foreclosing Party Can’t Prove It Owns the Mortgage

With the economy these days, loans are sold and resold. With the massive amounts of loans sold to different banks, investors and other parties, documents get lost. If this happens to you, then you may claim a defense because the foreclosing party can’t prove it owns your mortgage, which is a crucial element of the foreclosure process.

The Mortgage Servicer Made a Serious Mistake

Everyone makes mistakes from time to time and this doesn’t exempt mortgage companies. If your lender made a serious mistake with regard to the execution or carrying out of your mortgage documents then you may be entitled to defense against the foreclosure of your home. Mistakes such as crediting payments to the wrong party, imposing excessive fees and overstating your pay off amount are fatal mistakes that can be used against a lender in a foreclosure action.

Contact the Attorneys of the Ticktin Law Group to assist you in your foreclosure matter. We offer free consultations so that you can discuss all of your options with us.