Stages of Florida Foreclosure Defense
A foreclosure filing is not a failure.
The Miami foreclosure defense lawyers at Jacobs Keeley believe it’s just the beginning.
For many, fighting back is the best hope to save a property from foreclosure. Problematic foreclosures have the best chance of meaningful loan modification with a principle balance reduction. For others hoping to get out from under an underwater property, we can help fight deficiency judgments, which force borrowers to pay unpaid principal balance.
Before opening the firm, Bruce Jacobs spent years representing banks in foreclosure actions in Miami and throughout Florida. Our law office proudly uses that knowledge and experience to empower home owners and real estate investors. We constantly train on innovative legal strategies to provide insight and information for the client to make the best decisions to deal with distressed properties. Only an attorney can go to court and fight to stop a foreclosure.
When you Negotiate From Strength with Jacobs Keely, we help you achieve your goal.
Borrowers benefit from a well-defended foreclosure by:
- Continuing to live in the home during litigation;
- Continuing to collect rent from investment properties;
- Obtaining meaningful loan modifications that bring the principle balance on the loan down to market value;
- Avoiding deficiency judgments on underwater property;
- Collect information that forces the bank to settle on better terms.
Those who roll over and allow banks to take their home may be forfeiting access to important protections.The Foreclosure Process
In Florida, a lender must go to court to foreclose its mortgage. The lender files a lawsuit in the Circuit Court of the county where the property is located. The lender has no right to take your home until they obtain a judgment of foreclosure and writ of possession from the Court.
Foreclosure is a complex legal matter, and your chances of success can be greatly impacted by the attorney you choose. Jacobs Keeley Trial Lawyers are local foreclosure defense attorneys who live in this community. We practice regularly before the judges who will hear your case, have extensive experience on both sides of foreclosure litigation and take very seriously that you have trusted us with your family’s future. The gears will begin churning on your foreclosure after just a few missed payments. You will likely receive a Notice of Default in the mail. This notice will demand the mortgage note be paid immediately in full. This is what is known as acceleration of the note.
If by this point you have not already contacted a foreclosure defense lawyer, this is the time to do it.
You have the right under the Fair Debt Collection Practices to dispute the validity of mortgage debt. A benefit of demanding verification of the debt is that all collections must be immediately halted until it is verified. This can buy critical time in your case.
Once the debt is verified, borrowers can expect to be served with a foreclosure lawsuit. You will receive a summons, complaint and lis pendens, which will be filed with the Clerk of Court. A summons will inform you of a 20-day deadline in which to respond to the lawsuit. DO NOT ignore this notice. Recognize that in any lawsuit, you have the right to appear, defend yourself and demand the bank prove its case. Even if it is the borrower’s intention to walk away, there are strategic measures that should be taken to minimize the risks to your future financial health.Defending a Foreclosure
Effective foreclosure defense strategy is going to depend greatly on the individual facts of each case.
Probably the worst thing a borrower can do is bury his or her head in the sand or play hide-and-seek with the process server attempting to serve a copy of the lawsuit. Service by publication is permitted when a foreclosure defendant can’t be located after diligent search, and ignoring the lawsuit is likely to result in a default judgment against you.
A foreclosure defense attorney may start with filing a motion to dismiss the complaint on a myriad of legal and procedural grounds. Even if the motion is denied, it presents an excellent opportunity to question whether the bank is able to produce the mortgage note and other necessary paperwork needed to foreclose.
The “Answer” will be the first opportunity to assert any affirmative defenses. This effectively says to the court, “I have not paid my mortgage, but the bank cannot foreclose because…”
Following, is the discovery phase, in which your foreclosure defense lawyer will demand documentation from the bank, question witnesses and require answers to be given under oath. In many cases, the information gleaned here can be used as leverage to resolve a case.
There are numerous federal regulatory actions that may bolster your position. Those include:
The Truth in Lending Act (TILA). This consumer protection statute allows borrowers to seek damages against lenders who failed to accurately disclose finance charges. Most importantly to those facing foreclosure, it gives borrowers the right to rescind the transaction for up to three years for material violations. Essentially, the bank has to “undo the deal” and return all interest and fees paid on the loan up to that point.
The Real Estate Settlement Procedures Act (RESPA). Another consumer protection law, it is designed to prevent banks from charging illegal fees that make mortgages costlier. Lenders have to give borrowers accurate disclosures of costs, lender practices and relationships to companies that provide services during the closing process. Referral fees and kickbacks are also barred under this law.
Home Owners Equity Protection Act (HOEPA). This law requires lenders who originate high-cost mortgages have to provide additional disclosures, avoid certain loan terms and make sure the borrower receives additional protection – including homeowner counseling. A lender’s failure to abide by these rules can be instrumental to your foreclosure defense strategy.Wrongful Foreclosure
Many of the country’s largest financial institutions have been caught red-handed in recent years in a series of robo-signing scandals that effectively amount to wrongful foreclosure. In many cases, banks took homes using teams of “robo-signers” who later admitted to signing sworn affidavits that were in fact false.
If there is evidence the bank, mortgage servicer or law firm representing these entities defrauded the court to deprive you of property, there may be grounds for civil litigation. The basis may be:
- “Civil theft” which awards triple damages and attorneys’ fees.
- “Ejectment” and “Quiet title action,” which allows borrowers to demand property back from either the lender or current owner.
- Violations of federal and state fair trade practices.
An experienced foreclosure lawyer will conduct a thorough analysis to determine whether the bank lost notes, misapplied or lost payments or failed to accelerate the note. Any of these could be grounds for foreclosure lawsuit dismissal.
If you're battling foreclosure or deficiency judgment in Miami or the surrounding areas contact Jacobs Keeley Trial Lawyers for a confidential appointment to discuss your rights.
Call us at (305) 358-7991.