Beat the Bank: Legal Defenses to Foreclosure

mortgage-loan-foreclosure-notice-issued-by-mortgage-lenders If you are served with a summons and complaint from your Lender seeking to foreclose on your home, you should seek advice and retain a real estate attorney who is well versed in mortgage banking and the laws governing foreclosure in your state. Some of the viable defenses your attorney may raise on your behalf are listed below:

General legal defenses to foreclosure:

1. Truth in Lending Act (TILA) violations enabling rescission. If your loan is a refinance, the bank must have provided you a set of disclosures at the time of closing. If these disclosures are inaccurate, the loan is statutorily rescindable under TILA. For example, in a foreclosure action, the finance charge must have been accurate within $35 or the loan may be rescindable. This means the loan is cancelled and all money paid to the lender is refunded.

2. Truth in Lending Act (TILA) violations enabling hurts. If you bought the property with the loan or used the proceeds to refinance and proper disclosures were not given, then you may be entitled to money hurts to offset the foreclosure.

3. Home Ownership and Equity Protection Act (HOEPA). This is a very powerful federal law governing high cost refinance loans. If your loan is under $150,000 or the initial rate was above 8%, you should evaluate your loan for violations of this act. Violations here enable rescission and substantial money hurts that can be in excess of the loan’s dollar amount.

4. Failure to Provide a Right Notice of the Right to Rescind. There is a specific notice that must be provided to refinance customers at closing. If this form is inaccurate or incorrect, the loan is rescindable up to three years after the closing date.

5. Breach of Contract. Many times the lender will do things that are unfair or unjustified before starting the foreclosure process. Just as you have an obligation to pay the mortgage, the lender has a responsibility not to interfere with your ability to do so – like force placing insurance making the payments substantially more expensive than they should have been.

6. Real Estate Settlement Procedures Act. This federal law governs many types of disclosures that lenders must provide at the time of closing, in addition to prohibiting things like kickbacks and unearned fees. It enables hurts, and sometimes rescission if the error triggers TILA.

7. Honest Debt Collection Practices Act. This federal law requires servicers or lenders who obtain the mortgage after default follow specific protocol in attempting to collect on the debt. A failure to follow this law enables statutory hurts and attorney’s fees.

8. Honest Credit Reporting Act. This federal law governs lenders ability to report information about the mortgage and requires the accurate reporting of negative information. Violations of this act also enables hurts and attorney’s fees. Punitive hurts might be available under this act.

9. Real party in interest. This is a procedural defense to foreclosure that can be extremely effective at stopping the lender’s ability to foreclose. It essentially questions the ownership of the mortgage and questions whether the foreclosing party is, in fact, the holder of the mortgage and note.

10. Unconscionability. This defense is focused on the events surrounding the creation and closing of the mortgage loan. A violation here gives the court fantastic leeway in deciding whether the mortgage should be voided or changed.

11. Failure to state a claim upon which relief can be granted. This general defense attacks the lender’s ability to foreclose and is can be used in conjunction with one of the other foreclosure defenses.

12. Failure to establish conditions precedent. Want to get a foreclosure action thrown out of court straight away? Use this defense that attacks the lender’s pre-foreclosure processes.

13. Failure to comply with FHA pre-foreclosure requirements. FHA requires every lender to mail a booklet called “How to Avoid Foreclosure” and set up a face-to-face meeting with the borrower before foreclosing (in most cases). If the lender does not take these steps, then it cannot foreclose.