Blog

man signing a paper

Standing as a Defense against Mortgage Foreclosure in Florida

Have you received a foreclosure complaint from your lender because you have not been able to keep up your mortgage payments? Successfully defending against what feels like an overwhelming legal situation is possible through the use of lack of standing, an affirmative defense.

Before you panic and consider giving up your home, consider first speaking with a reputable foreclosure defense attorney like Marc Brown, P.A., about your situation. You may be surprised to learn that you have a valid defense against the bank and put a stop to these court proceedings.

What Is an Affirmative Defense?

In a foreclosure lawsuit, an affirmative defense is a fact of the case that mitigates the allegation against you. For example, let’s say your bank claims you haven’t paid your mortgage, and they want to repossess your home over it. This type of defense would not disagree with their allegation you haven’t paid your loan installments but instead would provide another fact that would make your lack of payment irrelevant. Lack of standing is one such defense of this nature.

How Standing Impacts a Home Foreclosure Proceeding

Since Florida conducts foreclosures judicially, lenders have to file suit against borrowers and win to take back a property. To achieve this goal, the plaintiff has to have standing (a stake in the outcome of the case). In foreclosure actions, this would be their need to prove their institution has suffered a loss by your lack of payment. But, sometimes, this interest they claim to have isn’t their own, which means they lack standing.

For instance, imagine your best friend was struck and injured by a car in a store parking lot. They would have a case against the at-fault party, but you wouldn’t because you didn’t get hurt. This is much the same in foreclosure actions, though a bit more complicated.

Many mortgage services sell off their home loans to other lenders and servicers as large securities bundles. When they do this, they no longer have a stake in the outcome of the mortgages sold because the receiving company paid for them. So, it is vital that a mortgage provider or bank that is foreclosing on your home prove their name is on the loan documentation.

The reason lack of standing as a defense may succeed is because home loans often get resold several times. This means paperwork gets lost on the servicer’s side, and they will not be able to provide evidence to the court that they own the debt. Also, any errors made on documentation, proof of fraud, or improper paperwork, will make it doubly hard for them to prove their standing. Further, they have to prove they currently own the note on your home at the time of their suit.

Now, this may only be a temporary solution because the party that does own your mortgage could foreclose instead. But it does buy you more time to find a solution to your outstanding balance and reinstate your loan.

Why You Need a Skilled Foreclosure Defense Attorney

Even though much of the pandemic foreclosure crisis has slowed down, there are still many borrowers like yourself still facing foreclosure actions. The idea of losing your home is terrifying, and if proceedings have already begun in your case, get sound legal advice from Marc Brown, P.A.. His firm has represented South Florida individuals and families in these types of cases for over a decade with great success. He understands the pressures you face and will work with you to determine the best options available under state law.

Because the Florida Supreme Court decided that lenders should pay attorneys’ fees for borrowers that successfully prove lack of standing, now is the time to fight back. This new reality has many lenders more willing to consider settlement terms than go to trial and work to your advantage. It may be possible to convince your mortgage company not to file an action at all because of their standing in the matter.

Contact our foreclosure defense attorneys right away to schedule a consultation to discuss your current mortgage situation and get the peace of mind you deserve.