If you are currently facing potential foreclosure on your home, don’t give up hope and walk away from your property just yet. We know it’s stressful having your lender coming after you, but at the end of the day, they would rather get their money and you keep the house than take a potential loss in a short sale.
To learn more about avoiding foreclosure, consider the following four methods to save your home.
The Top Foreclosure Defenses at a Florida Foreclosure Trial
In Florida, foreclosures are not presented to a jury but instead a judge. Therefore, it will be your responsibility to convince them to rule in your favor, and this requires more than emotional heartstrings being pulled.
A skilled foreclosure defense attorney is your best approach to judicial foreclosure trials for many reasons, especially their in-depth understanding of properly defending against these actions. Below are the top defense strategies your lawyer may consider when protecting your property from foreclosure.
When faced with foreclosure because of illegal or unethical actions by your lender, you may be able to use the unclean hands defense. State case law will deny a bank’s lawsuit against a customer who has defaulted if their falling behind was directly caused by the lender’s actions.
Typically, unclean hands require you to prove that your loan service committed a fraudulent or illegal transaction with you. You could also provide evidence that shows they committed oppressive, unconscious, or unrighteous conduct when it came to your loan. However, keep in mind that bad behavior isn’t enough. You still have to demonstrate that these actions caused you a detriment and are related to your failure to make your mortgage payments.
Defense of Conditions Precedent
When your bank took foreclosure action against you, some specific steps and events had to take place first to allow them to do so. The defense of conditions precedent means they failed to meet the requirements that enabled them to foreclose on your property. Whether you weren’t sent a Notice of Default or other condition was left out, the court could dismiss their action for doing so. This doesn’t mean your debt gets canceled, though. Your lender can refile their suit correctly.
Lack of Notice of Default
When you don’t make your mortgage payments, your loan provisions should have a requirement to notify you about your default before attempting to foreclose on your home. Further, the notice is legally required to contain specific information about curing your defaulted payments. Finally, it would help to be given at least 30 days before the bank files a foreclosure suit.
When you, the borrower, make this issue known to the court as part of your defense, it is on your lender to prove they sent the appropriate notice and gave you time to comply.
Chapter 13 Bankruptcy
If you face a foreclosure sale, you can get an immediate stay preventing it from occurring by filing Chapter 13 bankruptcy. This only buys you time to resolve the default, though, and you may want to modify your loan. When the stay goes into effect, your lender cannot continue collection activities against you, including the sale of your home, even if they were granted a summary judgment.
While it’s possible for your loan provider to ask for this to be lifted to allow them to move forward with selling your home, this still can take a few months to be submitted and reviewed by the court.
Despite taking a hit on your credit rating, by filing Chapter 13, you can propose a repayment plan for the arrearage you owe in mortgage payments. Usually, a bank won’t have any choice but to accept this arrangement. However, keep in mind you will still need to keep making current payments in addition to your repayment plan obligations.
Get Experienced South Florida Foreclosure Defense Representation
Potentially losing your family home is nothing we ever expect, but life can throw us curveballs that leave us struggling financially. If you or someone you know is underwater when it comes to their mortgage, contact the reputable real estate attorneys at The Marc Brown, P.A., Law Firm right away.
Attorney Marc Brown provides high-quality legal services based on his decade representing lenders throughout the South Florida area. His unique insight into how banks pursue foreclosure makes him your premier choice for legal counsel in this area of law. To schedule a no-cost legal consultation regarding foreclosures and deficiency judgments, contact the law offices of Marc Brown today.