Steps to Stop Foreclosure

Foreclosures in Florida must go through a judicial process. This means that if a lender or homeowners’ association wants to foreclose on a property, they must obtain a judge’s approval first. Before an agency or organization can foreclose on a property, they must file a lawsuit in the same circuit court in which the property is located. The law in Florida stipulates that all mortgage foreclosure cases are heard in a court of equity. A court of equity has the authorization to apply principles of fairness, along with legal defenses. This means a judge in these courts can examine acts by the lender that would render the foreclosure unfair.

During the foreclosure process, you can challenge the foreclosure by raising certain defenses in the case. It is always important to speak to a foreclosure lawyer in Broward County when facing foreclosure, but this is especially true when the sale of the property has already been scheduled. You may still have options available to stop the foreclosure, but time is of the essence.

Equity vs. Defenses in Foreclosure Trial

Although a foreclosure trial must be held in order for a lender to move forward in the process, these trials are not heard by a jury. These cases are argued in front of a judge and the judge alone will make the final decision on the case. As the homeowner, the burden is on you to convince the judge to rule in their favor. Judges are less likely to apply principles of equity, or fairness, than juries. As a result, it is important to speak to a Florida foreclosure defense lawyer who can help you prepare solid arguments for your case.

Unclean Hands Can Provide a Defense

Proving unclean hands, or the fact that the lender engaged in an illegal or fraudulent transaction. For example, a lender may tell you that you can delay your mortgage payments for a certain period of time. If you do, and they foreclose on the property anyway, that is a case of unclean hands because the lender fraudulently told you something that was not true.

Proving unclean hands is never easy. It takes extensive legal knowledge and expertise to prove this defense. You do not only have to prove the lender had unclean hands, but also that it caused you a detriment or harm. Also, the act that constitutes unclean hands must also be tied to a failure to make mortgage payments.

Conditions Precedent Can Provide a Defense

Conditions precedent means that something must happen before performance under the contract is due. In foreclosure cases, one of the most common condition precedent seen is a lack of notice of default. However, there are many different conditions precedent that can provide a defense in foreclosure cases.

Lack of Notice of Default Can Provide a Defense

The majority of mortgage loan documents include a requirement that the lender must provide notice to the borrower when the loan falls into default. When loan documents include this requirement, it is usually found in paragraph 22 of the mortgage. Not only must lenders notify borrowers of the default, but the notice must include actions the borrower can take to remedy the situation before the lender continues with foreclosure action. The notice must also give borrowers a minimum of 30 days to remedy the situation before the foreclosure process can begin.

A lack of notice of default is an affirmative defense. This means that you agree that you fell behind on mortgage payments, but that the lender also did not meet their requirements. If you raise this defense in the case, the lender then has the burden of proof to show that they sent you this notice in accordance with the agreement, and that they met all other conditions related to it.

Chapter 13 Bankruptcy Can Stop Foreclosure

A Chapter 13 bankruptcy allows you to take your eligible debt, which includes your mortgage, and reorganize it into a three to five year repayment plan. This does not mean you have to repay the entire mortgage loan in that period of time. You will only have to pay the amount that is already past due.

A Chapter 13 bankruptcy actually forces the lender to allow you more time to repay the defaulted amount because these cases are overseen by the U.S. bankruptcy trustee. You do not have to apply for a loan modification through the lender. A mediator may also be assigned to your case to streamline the process and prevent unnecessary delays, such as if the lender does wrongfully deny the modification.

Canceling the Foreclosure Sale

If you file for bankruptcy, an automatic stay will go into effect immediately. This means that all lenders and creditors must stop all attempts to collect on a debt, and that includes a foreclosure sale. Even if you file for bankruptcy on the same day as the foreclosure sale, the automatic stay will go into effect and the foreclosure sale must be stopped, as long as you file before the start of the sale. It is important to know though, that once the automatic stay is lifted, the lender can proceed with the foreclosure sale.

Voiding a Foreclosure Sale

Even if the foreclosure sale has already been held, there are still ways you can void the foreclosure sale and stop the process. Lenders must follow very strict procedures when holding a foreclosure sale. There must also not have been any irregularities in the sale process. Voiding a foreclosure sale is extremely difficult, and there are many obstacles to overcome. As such, it is important to always work with a foreclosure defense lawyer.

Call Our Foreclosure Defense Law Firm in Broward County Today

If your lender has taken action to take back your home, our Broward County foreclosure defense lawyer is here to help. At Loan Lawyers, we have helped thousands of people keep their home, and we want to put our experience to work for you. Call us today at (954) 523-4357 or contact us online to schedule a free case review and to learn more about how we can help.