| FORECLOSURE DEFENSE
in Florida |
Most attorneys and the public do not realize that a foreclosure
can be defended in Florida. This does not mean the homeowner will
prevail and not have to pay the delinquent payments. However,
if a homeowners equity in their home is protected by such a defense
and they are not subjected to a fast foreclosure, they may stand
a better chance to economically survive.
If the lender has not received their monthly payments when due,
the borrower has defaulted on the mortgage and note. That does
not mean the borrow must leave the property immediately as is
the case when a person fails to pay their rent.
A continuing default on a mortgage gives the lender a right to
seek the judicial sale of the borrowers Florida residence by bringing
a foreclosure action under Chapter 702 of the Florida Statutes.
In almost all instances the borrower is in the wrong not because
they wanted to stop paying on the mortgage but simply because
events in life resulted in a financial inability to pay on their
mortgage. Although the borrower has defaulted and is in the "wrong"
that does not mean the homeowner has to rollover and abandon their
home or just stay there and wait for the inevitable.
An experienced Foreclosure Defense Attorney may use all legal
ways to protect your home when you face foreclosure.
Beware of "Non-Lawyer assistance" programs which cannot
represent you and protect you in a foreclosure lawsuit. The Florida
Bar has issued a pamphlet to warn consumers such as yourself.
For a copy of the Pamphlet at the Florida Bar Website Click Here,
then Click the Back Button on your browser if you wish to return
to our Web Site.
Do you know the full extent of your legal rights? Have you received
notice that foreclosure proceedings will begin on your home? JAG,
P.L.L.C. can explain your legal rights and options and put those
rights to work for you. Contact us today and find out how you
may stop home foreclosure with an experienced attorney who knows
foreclosure law in Florida. JAG, P.L.L.C. help people in your
situation fight foreclosure every day. You must act quickly to
avoid foreclosure on your home. In almost all cases you only have
20 days to respond to the summons and complaint. Having financial
difficulties can be overwhelming for most people. JAG, P.L.L.C.
offers alternatives to your hardships. Our experienced lawyers
can explain your legal rights.
A majority of the Florida Foreclosures are brought by a dozen
Florida Law Firms. These firms specialize in Florida Foreclosures
and most are organized on an assembly line format. If you call
their offices computerized call center answers the phone and generally
insulate the attorneys and staff of those firms from your calls.
Because of their large volume, most legal documents are prepared
in a generalized way through word processing merge documents.
Often these forms fail to accurately describe your situation.
DEFENDING YOUR HOME: JAG, P.L.L.C. has the ability to exercise
your rights, both Legal and Procedural, to protect your home from
a Fast Foreclosure. The following are issues that are relevant
in determining if you have defenses to a mortgage foreclosure.
These defenses may be raised even if you are behind in your payments.
1. Due Process:
2. Rescission:
3. Lost Notes
4. Mortgage Electronic Registration Systems Inc.
5. Force-placed Insurance
6. Lost Payments
7. Failure to Accelerate the Note
8. FHA-Insured Loans
9. Accepting Payments After Foreclosure
10. Truth-in-Lending and HOEPA Violations
11. Fraud, Abuse, Collusion
12. Fair Debt Collection Practices Act:
13. Failure to Attach Note and Mortgage to Complaint:
14. Incorrect Notice or Service
§ 1. Due Process: Pursuant to procedural due process, you
are entitled to full discovery and may demand the production by
your lender of all documents and information in their possession
and control which may affect your rights. JAG P.L.L.C. is prepared
to assert your rights under the Florida Rules of Civil Procedure.
§ 2. Rescission: You may have legal rights pursuant to the
Real Estate Settlement and Procedures Act. If you refinanced your
home and your current mortgage was executed less than three years
ago, you may still have the right to rescind the loan and cancel
finance charges if your lender failed to provide your with timely
disclosures.
§ 3. Lost Notes: Most foreclosure complaints allege that
the lender lost the note. Often the lenders attorney fails to
attach a copy of the mortgage note that you signed. The Florida
Rules of Civil procedure require that "All ..., notes, ...
or documents upon which action may be brought or defense made,
or a copy thereof or a copy of the portions thereof material to
the pleadings, shall be incorporated in or attached to the pleading."
The proper assertion of this defense may stop the foreclosure
until the lender can supply a copy of your mortgage note.
§ 4. Mortgage Electronic Registration Systems, Inc. (MERS):
Often the foreclosure against you is brought in the name of MERS.
Generally you have never heard of MERS, had contact with them
and although MERS is seeking to foreclose your mortgage and alleges
it is the owner of the note and mortgage, MERS in fact generally
holds the mortgage as a nominee (whatever that is) for the true
Lender who in fact holds and owns the Mortgage Note which you
signed. The relationship of these entities may materially affect
your rights and may be asserted by a foreclosure defense attorney.
§ 5. Force-placed Insurance: Where lenders purchase insurance
in the mistaken belief that the homeowners have let their policy
lapse. If the homeowners have their own homeowner’s insurance
policy, they should not be paying for the lenders insurance.
§ 6. Lost Payments: Sometimes payments are not correctly
applied to a buyer’s account.
§ 7. Failure to Accelerate the Note: The loan cannot be foreclosed
until the loan is accelerated, if required, and notice must be
sent to the buyer.
§ 8. FHA-Insured Loans: FHA loans have special servicing
requirements, including a counseling notice mailed to the mortgagor
within 45 days of default, a face-to-face meeting with the borrower
within 90 days of default, and a notice of available counseling.
Failure to comply with these rules is an affirmative defense.
§ 9. Accepting Payments After Foreclosure: There may be a
defense to the foreclosure if the lender accepts payments after
filing foreclosure, and the mortgagor is not in bankruptcy.
§ 10. Truth-in-Lending and HOEPA Violations: Truth-in-Lending
and HOEPA violations may be raised as a defense. However, the
most powerful remedy available -- i.e. voiding the mortgage is
only available within three years of execution of the mortgage
(if its non-purchase mortgage and required disclosures were not
delivered to you). An attorney must review the original disclosure
documents to determine if there was a violation, but failure to
disclose material terms in writing, or high interest rates on
a non-purchase mortgage, almost always warrant careful investigation.
§ 11. Fraud, Abuse, Collusion: Where the loan displays fraud,
abuse or collusion, these may be possible defenses to foreclosure.
§ 12. Fair Debt Collection Practices Act: Attorneys who file
foreclosure papers are debt collectors and must comply with the
FDCPA. While not a defense per se to the foreclosure action, it
does give rise to a statutory and actual damages claim.
§ 13. Failure to Attach Note and Mortgage to Complaint: The
complaint is subject to a motion to dismiss if the note and mortgage
are not attached to the complaint.
§ 14. Incorrect Notice or Service: Service by publication
is only valid after an attempt at personal service. In order to
be legally valid all information in the notice must be accurate.
JAG, P.L.L.C. Attorneys-at-Law wants to assist you in achieving
your goals. Whether you want to obtain sufficient time to sell
or refinance your home; to find a job that may allow you to qualify
for a chapter 13 bankruptcy payment plan, or to exhaust your legitimate
defenses allowing you to remain in your home as long as your are
legally entitled to stay there.
IF YOU CHOOSE FORECLOSURE DEFENSE:
We want to be your attorneys and help you leverage your rights
and defenses, which may forestall the foreclosure and get you
the time you need to sell or refinance your home, or negotiate
a payment workout, or get a new job so that you can afford to
keep your home.
