The Bank’s Burden of Proof in a Foreclosure Case
To foreclose on your residence, your mortgage provider will file a lawsuit against you. Typically, you’ll receive notification of this action through a summons or complaint that gets served to you by either your local authorities or through a service agency.
This can be a frightening experience, especially if you don’t understand why they’re taking these steps to repossess your home or know they have made a mistake. So, the question is, what burden of proof do they need to provide to take your house? And, is there any way you can find out what evidence they have?
What Evidence Does the Lender Have to Show?
When taking foreclosure action against your home, your lender will need to prove it has the standing to do so. Evidence of their right to repossess your home usually includes documentation such as:
- Promissory note
- Loan documentation
- Copies of default notices sent to you
- Any payment arrangements you agreed to
- Proof of your mortgage payments they have received
- Sworn statements from employees or services who know about your missed payments
- Evidence they have complied with federal and state foreclosure regulations
Why Lenders Struggle to Prove Standing
When faced with foreclosure, you may think your lender has a slam dunk case since you owe them money. If you took out a mortgage and your lender never packaged it up as part of an investment portfolio or transferred ownership of your loan to another servicer, it could be an open and shut case. However, this is rarely the case for mortgages today.
More often than not, a residential mortgage is securitized and transferred several times over during its life cycle. When a homeowner defaults, this means getting the original loan documentation and evidence of the loan’s assignment to another entity. They will have to either provide a sworn statement that this proof was lost, destroyed, or stolen or have someone with firsthand knowledge of your promissory note submit sworn testimony they had it.
While you may think this is easily forged, notable banks like Wells Fargo have paid out billions in penalties for submitting faked evidence to win foreclosure cases. With the latest crackdown since the 2008 housing crisis, these practices have diminished significantly. However, you should know that it’s your responsibility to point out any errors or purposely omitted documentation or procedures. The court and lender won’t do this for you, so make sure to work with a seasoned Ft. Lauderdale foreclosure defense attorney before you default on your mortgage.
How the Discovery Process Can Reveal The Bank’s Evidence
When you go to trial for foreclosure in South Florida, your attorney and lender will request from one another any evidence that will be submitted to the court during the proceedings. This is known as discovery and can help you determine if the bank has the standing to have their demand granted.
Things can get a bit tricky if your mortgage company asks the court for a summary judgment on the matter. A summary judgment could be granted without the need for the discovery process if your answer to the bank’s complaint doesn’t raise a valid defense or points out issues with their request.
For discovery to take place after your lender has filed a summary judgment demand, you will need to show that this process will reveal evidence or facts justifying your fighting this action. Further, the proof you need access to in the discovery process is solely in the control or knowledge of your loan provider. Without this reasoning, the court may rule in favor of your lender and grant a summary judgment to allow foreclosure against you.
Contact an Experienced Ft. Lauderdale Foreclosure Defense Attorney About Your Notice of Default
When you are faced with potentially losing your home but know the bank doesn’t have standing, you need a qualified attorney as soon as possible. Not only will you gain a better understanding of what your rights are, but they can also determine if the action against you is legal.
Trust Attorney Marc Brown to provide you with over a decade of experience in foreclosure defense. His years representing South Florida lenders make him the smartest choice when seeking aggressive legal representation to protect your home. To schedule a no-cost legal consultation regarding foreclosures and deficiency judgments, get in touch with the law offices of Marc Brown.