Recently, the Florida Fifth DCA reversed a summary judgment in a foreclosure case because the lender did not offer sufficient evidence that it followed proper procedures and satisfied certain conditions. After the bank tried to accelerate the mortgage in the case Parkin v. Eagle Home Mortgage, LLC, the homeowner filed affirmative defenses that showed the bank violated paragraphs 15 and 22 of the mortgage loan. This made acceleration of the mortgage improper, so the homeowner was allowed to remain in their home.
The case is an important one. Too often, homeowners will simply accept the fact that they are in foreclosure and walk away from their homes when doing so is not always necessary. Many times, there are defenses available and many of these focus on forcing the lender to prove its case. For the lender to prove their case, they require evidence and many homeowners do not know what type of evidence this is, or how to ask for it or obtain it. This is just one reason why it is recommended that anyone facing foreclosure speaks to a Florida foreclosure defense lawyer first.
Documentation from the Lender
Much of the lender’s case will depend on the documentation they can present to show that the borrower is behind on their mortgage payments. However, they do not only have to prove the homeowner is in default. They must also show that they have standing, or something to lose by the borrower falling behind on the mortgage payments. Many homeowners often think this is a fairly easy argument for the lender to prove, but that is not always the case.
One of the biggest pieces of evidence used when lenders are trying to prove their case is the mortgage note. This is used to show that lenders have standing to file a lawsuit, evict the homeowner from the premises, and potentially even recover the defaulted loan.
Many homeowners assume the lender does have the note when that is not necessarily the case. Lenders bundle home loans very frequently and then sell them off to investors and other lenders. This happens so often that it is sometimes impossible for lenders to keep track of what home loans they hold, and which they do not. When lenders cannot provide the note or title showing that they own the home loan, they cannot provide the proper evidence and so, it can serve as a valuable foreclosure defense.
The bank may have lost other important documents in regards to the foreclosure as well that can prevent them from foreclosing on the home. A foreclosure defense lawyer can advise on what important documents these are, and can force the lender to present them to prove their case.
Other important evidence for the lender includes showing that funds paid towards the mortgage were properly applied to the homeowner’s loan. Again, it is not uncommon for payments to be improperly recorded by the lender and when that is the case, they may think they have grounds for filing a lawsuit, but they do not.
Depositions Serve As Very Useful Evidence
One reason it is so important homeowners work with a foreclosure defense lawyer is because an attorney can help them obtain evidence they otherwise may not have been able to on their own. One of these types of evidence is a deposition. A deposition is sworn testimony of the bank representative that is taken outside of the courtroom.
A lawyer will serve a notice of deposition to the lender requesting their sworn testimony and will file this notice as ‘duces tecum.’ This means that the lender’s chosen spokesperson must not only appear at the deposition, but that they must also bring the files and other documentation the lawyer requests. It is through this documentation the spokesperson brings, and the answers to questions given, that will help the lawyer find holes in the lender’s claim regarding their right to file a foreclosure lawsuit.
Some of the things a foreclosure defense lawyer will look for during the deposition include:
- Whether the person that endorsed the note had the authority to do so;
- Whether the payments were properly credited to the borrower;
- Whether accurate information was transferred from one payment servicer to the next;
- If there are legal gaps in the ownership of the mortgage;
- If the numbers are accurate and if all payments were accounted for and applied appropriately; and
- If the borrower made payments during a trial modification that the lender has not decided not to honor/
The above are just a few of the ways in which a lawyer can help during a deposition. In many cases, though, this meeting is enough to provide a foreclosure defense that allows a borrower to stay in their home.
Evidence Used by Homeowners in Foreclosure Lawsuits
While evidence can be used when defending a foreclosure lawsuit when the lender cannot provide it, homeowners can also use evidence to prove their case. The first is the mortgage loan. As in the most recent case, certain paragraphs of the mortgage loan can show that a foreclosure is improper. Anyone facing foreclosure should let a foreclosure defense lawyer review their mortgage loan to determine if it contains language that makes a foreclosure lawsuit invalid.
Also, any documentation that shows any payments the borrower has made is also helpful in a foreclosure case. It is fairly common practice that lenders do not properly apply payments to an account and when borrowers can show that they did make a payment, it can serve as evidence that will help with their case.
Our Foreclosure Defense Lawyers in Florida Know What Evidence to Collect
If you are facing foreclosure, our foreclosure defense lawyers in Fort Lauderdale can help. At Loan Lawyers, we know what evidence to collect that will serve as useful evidence and prove your case to help you remain in your home. Call us today at 954-807-1361 or fill out our online form to schedule a free consultation and to learn more about how we can help.
Loan Lawyers has helped over 5,000 South Florida homeowners and consumers with their debt problems, we have saved over 2,000 homes from foreclosure, eliminated more than $100,000,000 in mortgage principal and consumer debt, and have recovered over $10,000,000 on behalf of our clients due to bank, loan servicer, and debt collector violations. Contact us for a free consultation to see how we may be able to help you.