Developing a Plan to Stop Foreclosure
Residential Mortgage Foreclosures
It can be anxiety producing and emotionally distressing for a homeowner when they receive a letter from the bank stating that they are behind in their payments and if they don’t catch up, the bank will start the foreclosure process. As a seasoned attorney with numerous foreclosure trial verdicts under his belt for both lenders and homeowners, Andrew J. Pascale believes that the best defense is a strong offense. It is primarily through his reputation among his peers and his skillful lawyering that allows his clients to be in a position of strength when facing foreclosure. You should know that there are a variety of legal options available which are generally unfamiliar to most homeowners.
The most overlooked (and critically important) step to stop foreclosure is to develop a plan early on. Foreclosure is not as simple as finding a way to come up with the money or you automatically lose your home. There is no one-size-fits-all scenario. Everyone has a story. There are key questions you should ask yourself: Why are you behind in mortgage payments? Can you catch up? Is bankruptcy an appropriate option? How much time do you need to catch up? Can you afford to keep making payments once the loan is brought current? Is there equity in your home to make it worthwhile to struggle to avoid foreclosure? What are your end goals? Do you want to keep your home? Do you want to fight in court? Identifying your goals in your relationship with the bank (and what’s practical for you) is crucial for you to come out of the situation with the most beneficial results for you, and to achieve peace of mind. Also, if you want to keep your home, you should know there are legal rights you have, which is why it is best to have an experienced attorney to advise and protect you.
All too often homeowners don’t realize that they may be able to negotiate work out options directly with their lender. In fact, most lenders regularly employ representatives to try to arrange new payment plans with homeowners in order to avoid the expense of litigation. Lenders are savvy and are experienced in dealing with borrowers that try to play games, so lying is not the best way to go; but generally, creditors are responsive and will try to be accommodating for homeowners that are sincere and want reasonable solutions. Guidelines for federally insured loans require banks to have a formal application processes available for homeowners that want to modify their existing loan or apply for other loss mitigation options like a short sale, refinancing, a deed in lieu of foreclosure or forbearance agreement. Although litigation should typically be viewed as last resort for homeowners in disputes with their mortgage lenders, sometimes there is no choice but to fight in court. When one risks losing their home and a foreclosure lawsuit has begun, there are procedural and substantive components to consider. Procedure deals with how the bank has brought and maintains the legal action. For example, mortgage creditors must comply with certain fair debt and collections laws when they communicate with borrowers about the debt. Borrowers must be provided an opportunity to review and verify outstanding charges and debt. Often, by the terms of the mortgage contract, the creditors must send the borrower a formal demand letter, and give the borrower thirty days to resolve the debt outside of court. Mortgage creditors must also meet definitive court filing deadlines or the foreclosure is barred by the statute of limitations.
Click here for a list of defenses to foreclosures.
Substantive components in a lawsuit are the essence and core of the lawsuit. As the plaintiff, the mortgage creditor has the burden of making and proving their case for foreclosure: (1) they must demonstrate that there is a mortgage loan contract and that they have the right to enforce it under Florida Statutes, chapter 702; (2) they must show a breach of the contract on the borrowers’ part; that there has been a default in mortgage payment; (3) they must demonstrate that they have the right to accelerate the debt (i.e., call the entire outstanding loan amount immediately due); and (4) they have to demonstrate the actual amount of debt outstanding.
After the mortgage creditor files a complaint for mortgage foreclosure in court, the borrower, as the defendant, has the opportunity and right to respond to the complaint, and subsequently, the defendant may raise meritorious affirmative defenses to the lawsuit. See common affirmative defenses to mortgage foreclosure.
It is openly known that it is incredibly difficult for defendants to prevail in a mortgage foreclosure lawsuit based solely on the substantive merits or their affirmative defenses alone. More often than not, mortgage creditors will meet their burdens in a foreclosure action, and a judgment for foreclosure will be entered in the creditor’s favor. But judicial foreclosure sales don’t commonly occur right away, and the sheriff doesn’t show up at your doorstep immediately. It is important to understand that there is timeline and schedule of events involved in foreclosure, and it is best to have legal counsel that will guide you and fight for you every step of the way. For instance, defendants are provided with the opportunity to contest and raise objections to a foreclosure sale. Even after a judgment for foreclosure is entered, the defendant is given an opportunity under Florida law to redeem the property (or buy it back) by paying off the judgment, which usually incudes having to pay the outstanding principle of the debt, loan interest, attorney fees and court costs. Some defendants might want to consider short selling the property to pay off the debt, or they may want to give the mortgage creditor a deed in lieu foreclosure, to avoid the judgment altogether from the start.
Having an experienced attorney on your side can alleviate day to day worrying and emotional stress related to foreclosure. Andrew J. Pascale has been helping homeowners for nearly ten years resolve foreclosure lawsuits. Don’t waste time. Start early, so you don’t risk losing your home. Call Mr. Pascale now to discuss your case.
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