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Sunday, April 18, 2010

Fighting Foreclosure - Three Main Defenses

Fighting Foreclosure - Three Main Defenses

When homeowners begin to consider working with an attorney to defend their foreclosure in court, they often feel overwhelmed by the amount of nonsense and bureaucracy they are forced to deal with. But whether they are defending a bank's lawsuit against them, or initiating their own to stop an auction under a power of sale clause, there are three main categories of defense that borrowers can consider.

The first type of defense against a foreclosure by a mortgage company involves challenging the validity of the loan documents themselves. If the original mortgage or deed of trust was not drafted or executed legitimately, homeowners may be able to have the entire transaction rescinded, depending on the laws involved. In other cases, borrowers may question whether the lender suing them actually owns the note -- if not, there is no real valid contract between the two parties. Also, if there is a defect in the paperwork or illegal clauses, the mortgage may not be valid. Banks often violate state and federal law when creating mortgage, and it may be worth the time for borrowers to consult with an attorney about these issues.

Second, homeowners fighting foreclosure in court may rely on defenses that raise the issue of misconduct by the mortgage lender. Misconduct and predatory lending do not have concrete definitions, but a loan may be considered predatory based on numerous characteristics of it. If the borrowers were approved with no income verification or were given an interest rate that the bank knew the owners would not be able to pay, there may be a defense against foreclosure based on misconduct. Also, if the appraisal was inflated and the bank knowingly accepted the unreasonably high value, and gave the owners a loan based on the value of the home instead of what they could actually afford, it may be a case of predatory lending.

The final category of legal defense against foreclosure involves cases where the lender does not follow the required procedures before the sheriff sale. Every state and county has different rules that the bank's attorneys or the trustee must follow in order to foreclose on a house and have it sold at a public auction. Courts take for granted that the bank meets all of these requirements adequately, but homeowners may raise as a defense the failure to follow all the guidelines. In fact, lenders routinely violate the local laws and regulations, and the attorneys do not care to follow them because they know the banks own the courts anyway, for the most part. But procedural violations can be raised as a defense against foreclosure.

By focusing on these three types of legal defenses, homeowners may be able to drill down further and really specify the issues that affect their mortgage. Even if they just raise the defenses to force the bank to negotiate a loan modification or give them more time to sell or move out, education about lending laws is never a waste. As well, homeowners may decide to mount a full defense or hire a knowledgeable lawyer to help them.

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