A foreclosure is a stressful and overwhelming experience. The homeowner may feel very much like David and view the mortgage service company like Goliath. This is understandable, but do not give up hope. You may be able to use one of the four following defenses against the foreclosure proceedings.
Improper Accounting of Your Mortgage Loan
You would think with many mortgages serviced by large banks employing experienced individuals, the error rate would be low; but you would be mistaken. In fact, the records of many mortgage service companies can be completely wrong. How? If your mortgage loan was chopped up and swapped around between multiple servicers, mistakes could have been made and the mortgage servicer attempting to foreclose on your home may not even realize these errors occurred.
Common loan errors include payments not being properly credited to your account and/or charges made incorrectly. This is why you should consider retaining an experienced Florida foreclosure lawyer to help review the mortgage documents and discover any errors that may have been missed by the servicer.
Violation of the Truth in Lending Act
The Truth in Lending Act (TILA) was signed into law in 1968, but has been amended multiple times. One of the recent amendments added rules governing mortgage refinancing. One of the key regulations requires a borrower be given a complete and accurate disclosure of their loan terms. Once the disclosure was made, the borrower must have been provided three (3) days to change their mind regarding the refinancing. This can be a viable defense if it turns out that your mortgage company failed to provide a complete and accurate disclosure of the loan terms. Under TILA, you may be able to get an extended “right of rescission” for up to three (3) years starting from the date of the refinancing.
Misapplied Payments and Escrow Accounting Violations
As mentioned in the first defense above, mortgage servicing companies routinely make egregious errors that can form the basis of a strong foreclosure defense. Borrowers have been inadvertently charged with late fees for payments they actually made on time. Borrowers have also received notices from their mortgage services that they “force-placed” insurance on the mortgage, despite the fact that the borrower already had insurance.
Failure of a Condition Precedent included in the Mortgage Documents
Many mortgage documents contain a provision requiring a mortgage provider to give “notice of default and opportunity to cure” prior to commencing a foreclosure action. This is the law in the state of Florida and should be the first step in the foreclosure process.
If you did not receive such a notice from your mortgage company, you may have a viable defense against the foreclosure action itself. For example, in Judy LLC v. MSMS Venture LLC, WL 5935651 (Fla. Dist. Ct. App. Nov. 28, 2012), the notice of default was sent to the homeowner but failed to provide specific language about the basis of the foreclosure. Since the mortgage provider failed to satisfy this condition contained in the mortgage documents regarding the specific language of the notice, the court viewed the foreclosure as improvidently filed and forced the lender to dismiss the case.
Sound Complicated?
The defenses mentioned above are only some of the possible defenses that could be utilized to halt the foreclosure of your home. To learn more about your legal options, contact the experienced Florida foreclosure lawyers at Hoffman, Larin and Agnetti, P.A. today. When you meet with one of our attorneys, the meeting is fully confidential and your questions will be answered. Contact us today at (305) 653-5555 or fill out our online contact form to get your free, no obligation consultation today!
