Foreclosure is the process of a bank or lending institution taking possession of a mortgaged property as a result of the mortgagor’s failure to keep up with the mortgage payments. While unfortunate, you don’t have to give up your home to the bank without a fight. There are many foreclosure remedies or defenses available to you. The following are five common defenses that a foreclosure attorney can argue on your behalf:
- Failure of the Foreclosing Party to Prove the Existence of a Mortgage Document.
In order to foreclose a property, a lender must prove that they own the debt. This is often difficult for the foreclosing party to do if the mortgage has been sold and re-sold several times.
- Unfair Lending Practices.
If the original lender engaged in unfair lending practices, you may have a defense to your foreclosure. A lender engages in unfair lending practices when they commit a violation against federal or state law designed to protect debtors from such practices (such as the Truth in Lending Act, also known as “TILA”). TILA requires lenders to make certain disclosures in the mortgage documents regarding the lending arrangement.
- The Mortgage Servicer made a Serious Mistake.
You may be able to challenge the foreclosure based on mistakes your bank made. A few such mistakes include your bank: crediting payments to the wrong party, imposing excessive fees, or substantially overstating the amount you owe to reinstate the mortgage.
- Right to Rescind the Mortgage.
The right to rescind a mortgage is the borrower’s ability to retroactively cancel or rescind the loan under certain circumstances. One such circumstance is where the lender makes a material violation of TILA and/or other commits other unfair lending practices.
- Protection on “High-Cost” Loans.
Some states have protections for “high-cost” loans (where the annual percentage rate (“APR”) exceeds the applicable average prime offer rate). If your lender has made this violation, then you may be able to use this as a defense to your foreclosure.
Contact the Attorneys of The Noble Law Firm, P.A. to assist you with your foreclosure defense needs.
