1. Due Process:
Pursuant to procedural due process, you are entitled to full discovery and may demand the production by your lender of all documents and information in their possession and control which may affect your rights.
2. Rescission:
You may have legal rights pursuant to the Real Estate Settlement and Procedures Act. If you refinanced your home and your current mortgage was executed less than three years ago, you may still have the right to rescind the loan and cancel finance charges if your lender failed to provide you with timely disclosures.
3. Lost Notes:
Most foreclosure complaints allege that the lender lost the note. Often the lender’s attorney fails to attach a copy of the mortgage note that you signed. The Florida Rules of Civil procedure require that “All …, notes, … or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading.” The proper assertion of this defense may stop the foreclosure until the lender can supply a copy of your mortgage note.
4. Mortgage Electronic Registration Systems Inc. (MERS):
Often the foreclosure against you is brought in the name of MERS. Generally you have never heard of MERS, contacting with them and although MERS is seeking to foreclose your mortgage and alleges it is the owner of the note and mortgage, MERS in fact generally holds the mortgage as a nominee (whatever that is) for the true Lender who in fact holds and owns the Mortgage Note which you signed. The relationship of these entities may materially affect your rights and may be asserted by a foreclosure defense attorney.
5. Force-placed Insurance:
Where lenders purchase insurance in the mistaken belief that the homeowners have let their policy lapse. If the homeowners have their own homeowner’s insurance policy, they should not be paying for the lenders insurance.
6. Lost Payments:
Sometimes payments are not correctly applied to a buyer’s account.
7. Failure to Accelerate the Note:
The loan cannot be foreclosed until the loan is
accelerated, if required, and notice must be sent to the buyer.
8.
FHA-Insured Loans:
FHA loans have special servicing requirements,
including a counseling notice mailed to the mortgagor within 45 days of
default, a face-to-face meeting with the borrower within 90 days of default,
and a notice of available counseling. Failure to comply with these rules is an
affirmative defense.
9.
Accepting Payments After Foreclosure:
There may be a defense to the foreclosure if the
lender accepts payments after filing foreclosure, and the mortgagor is not in
bankruptcy.
10.
Truth-in-Lending and HOEPA Violations:
Truth-in-Lending and HOEPA violations may be
raised as a defense. However, the most powerful remedy available — i.e. voiding
the mortgage is only available within three years of execution of the mortgage
(if its non-purchase mortgage and required disclosures were not delivered to
you). An attorney must review the original disclosure documents to determine if
there was a violation, but failure to disclose material terms in writing, or
high interest rates on a non-purchase mortgage, almost always warrant careful
investigation.
11.
Fraud, Abuse, Collusion:
Where the loan displays fraud, abuse or collusion,
these may be possible defenses to foreclosure.
12.
Fair Debt Collection Practices Act:
Attorneys who file foreclosure papers are debt
collectors and must comply with the FDCPA. While not a defense per se to the
foreclosure action, it does give rise to a statutory and actual damages claim.
13.
Failure to Attach Note and Mortgage to Complaint:
The complaint is subject to a motion to dismiss if
the note and mortgage are not attached to the complaint.
14.
Incorrect Notice or Service:
Service by publication is only valid after an
attempt at personal service. In order to be legally valid all information in
the notice must be accurate.
