- Anthony Albertazzi
Guest Blog: Foreclosure Defenses that Home Owners Can Make to Protect Their Property
Every so often we collaborate with other attorneys from across the contry who give insight on an area of law they practice. This blog is one of those times.
When a person has defaulted loan on his or her property, the lender takes actionable steps to foreclose the property and then sales it on the auction. However, this does not mean that debtor cannot do anything about it given the intimidating actions of the debtor. There are certain defenses that the property owner can raise foreclosure defense.
The procedure of Foreclosure:
Every Real estate transaction is governed and monitored by state law. Each state can have different laws regarding the procedure of the foreclosure. But usually, there are similar procedures in the states. Before considering the foreclosure, the lender notices the owner about his or her status on in default on the loan.
This notice also contains details about the amount owner owe to the lender and the date on which the past balance is supposed to be paid. Moreover, the notice can tell the borrower about restating the mortgage. If needed, the lawyer also sends a letter after this notice mentioning that the borrower is retained to assist in the procedure on foreclosure.
The lender also serves legal documents telling the lender about the complaint filed in the court or that the lender intends to sell the home. The homeowner is also given a certain time period, after which the home may be sold in auction most often to the bank, being the highest bidder.
Consideration of Modification of Loan:
Before sending a notice to foreclose the home, the mortgage company determines whether the homeowner qualifies for the loan modification. It is the responsibility of the mortgage copy to send in writing and inform the homeowner about the availability of loan modification or about any other option that lets the owner retain the home. If the loan modification is denied, the homeowner has the right to file an appeal with the assistance of a foreclosure defense attorney.
The homeowner can redeem the sale of the home by paying in part or in full amount of the mortgage with the granted time period.
Lack of Service on the Part of the Court:
The foreclosing party is responsible for compiling a complaint and calls the borrower. This complaint has a legal basis for taking the action. The foreclosing party tells the debtor that a lawsuit is pending against him or her notifying him a time limit to respond. In case the moving party has not served the notice properly to the debtor the case will be dismissed on the grounds of lack of jurisdiction or lack of service. Moreover, the defendant’s right of holding the property is not affected.
In addition to it, if the court has not served the defendant, challenging to service may also happen. Without serving properly the power of the court of foreclosing weakens, as well as its power to influence the defendant’s right to on the home also minimizes. However, it is always beneficial to consult an experienced real estate lawyer.
Lack of Legal Standing:
In some cases, the mortgage companies may attempt to sell the loans to another party. If the defendant believes that the plaintiff is not the legal owner of the mortgage, this defense can be used in favor.
Lack of Notice:
State laws guide about the type of the notices to be sent to the homeowners about foreclosure. These laws tell in detail about the certain forms, provision or number of copies to be sent to the owners. If the plaintiff does not include provisions in highlighted paper or text, it can be used as a defense stating that the requirements were not followed strictly.