What Rights Do Homeowners Have During the Foreclosure Process?

Senior man reading a foreclosure notice

In response to the coronavirus, Florida Governor Ron DeSantis placed a moratorium on foreclosures and evictions in early April. Recently, the Governor extended that order, but there are now concerns that the new order includes very different language from the original. The change in vocabulary has opened the door for broader interpretations, which mortgage lenders and landlords have jumped on so they could move forward with evictions and foreclosures.

Of course, the changed order is of great concern to Floridians, particularly those who were enjoying the protection of the moratorium at this incredibly uncertain time. The greatest concern is that Florida homeowners are now facing an infringement of their rights. So, what rights do you have if you are facing foreclosure? The five main rights you have during the foreclosure process are listed below.

The Right to a Trial

One of the biggest rights homeowners are worried they will lose during this already difficult time is the right to a fair trial. Florida is a judicial state when it comes to foreclosures. That means that lenders must file a lawsuit against homeowners when a mortgage falls into default, and both the lender and the defendant have the right to appear in court and make their arguments.

It is this right that homeowners are so concerned about losing during the pandemic. Florida has become a hot spot for COVID-19 and so, court proceedings are being held via video conferences using a platform such as Zoom. Homeowners and attorneys around the state are questioning whether these virtual meetings will infringe on the right homeowners have to a fair trial.

The concern is that even though homeowners would have a trial of sorts, it is not the same as being in a courtroom. Court reporters cannot always hear witnesses, and it is more challenging to introduce documents as evidence, which is crucial in a foreclosure trial.

The Right to Defend

The purpose of having a fair trial, of course, is so that homeowners have a chance to present a defense that may help keep them in their homes. The only way a homeowner will lose this right is if they leave their home voluntarily before being formally evicted by the lender. For this reason, simply packing up and leaving is the worst action homeowners can take, because they will then forfeit their rights.

People sometimes leave their home after receiving a notice of foreclosure because they think they are out of options. That is not true. There are many defenses to foreclosure, such as requesting a loan modification, or filing Chapter 13 bankruptcy and spreading out the mortgage payments over time, so they are more manageable.

Even when these solutions are not possible, homeowners may still have many defenses that can keep a foreclosure off of their credit history, which will sink their credit score. Short sales and a deed-in-lieu of foreclosure can help keep a foreclosure off a person’s credit report.

The Right to Discovery

The right to discovery is a very important right for homeowners facing foreclosure. Discovery is a main component of any trial and it is during this time that your foreclosure defense lawyer will ask the lender for certain documents and information that could help with your case.

The most important document to ask for during discovery is the note that was signed when you purchased your home. In many cases, the note to a home has been reassigned or sold to someone other than the original lender and the note has subsequently been lost. This may not stop the foreclosure process entirely, but it does present new hurdles for the mortgage servicer. They will have to overcome those legal challenges before they can proceed with the foreclosure of your home.

During the discovery process, your foreclosure defense lawyer will also ask for documents to prove that the lender violated certain foreclosure rules. Violations are much more common than people think; the discovery process is crucial, as this can provide an additional defense.

The Right of Proof

All trials involve some level of burden of proof. In foreclosure matters, the burden of proof is a preponderance of the evidence. In simple terms, this means that the lender has the burden to prove that you more likely than not defaulted on your mortgage or violated some other terms of homeownership that allows them to foreclose. You do not have to prove that your mortgage is up to date or that you followed certain other rules. Although proving that you did not default or break other terms can provide a good defense, you do not have a legal obligation to prove this.

Proving a preponderance of the evidence is a lower standard for the lender’s burden of proof than beyond a reasonable doubt. Still, a knowledgeable foreclosure defense lawyer will know how to refute their arguments, making it more difficult for a lender to prove their case.

The Right to Counterclaim

If at any time during the foreclosure process, you feel as though the lender has violated certain lending rights, you can counterclaim. Counterclaims are very similar to counter-lawsuits that are filed against mortgage lenders or servicers when they have broken certain laws.

Counterclaims work a little differently than the original lawsuit a lender may file. For example, your counterclaim may be heard by a jury instead of one judge that will make all of the decisions, such as in a foreclosure lawsuit. When making a counterclaim, it is crucial to work with a foreclosure defense lawyer who can help you understand what the law says about your case.

Our Florida Foreclosure Defense Lawyers Will Uphold Your Rights

You have many rights when facing the prospect of losing your home. At Loan Lawyers, our Fort Lauderdale foreclosure defense attorneys know what those are and will ensure that they are upheld. If you are facing foreclosure, call us today at (954) 807-1361 or contact us online 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.