If you are facing foreclosure, it is in your best interests to hire an experienced foreclosure attorney. The Noble Law Firm handles residential foreclosures all across the state of Florida. With an experienced foreclosure attorney, a foreclosure may take up to several years. During the foreclosure process, you may not be required to make any payments to your Bank. In most foreclosure cases, there are a variety of defenses that can be strategically used. Many banks have lost the original note or lost other important paper work which makes a foreclosure more difficult. Other times Banks have not followed the rules set by the Federal government concerning loan modifications and are unable to foreclose on borrowers. The following are examples of typical foreclosure defenses that may thwart banks from closing on your property:
Lost Original Note – The Florida Rules of Civil Procedure require that a Bank file the Original Mortgage and Promissory Note with the Court before the Bank can foreclose on the property. A common problem is that most banks sold the mortgage and the note to other banks who securitized your mortgage with other mortgages. Many Banks had a policy of destroying the Original Mortgage and Note after scanning them. If a Bank is unable to produce the Original Note, a borrower may have more negotiating power with Banks to mitigate the effects of a foreclosure.
Lost Assignment or Untimely Assignment: Many times a borrower will sign a Promissory Note and execute a Mortgage with one Bank but will be sued for foreclosure by another Bank that the borrower has never heard of. If this is the case, the original Bank most likely assigned its rights to collect on the Note and Mortgage to another Bank. However, this other Bank can only sit in the shoes of the original Bank if it proves to the Court that the original Bank actually assigned their rights to the other Bank. Many times, the Bank will fail to attach the assignment or the assignment occurred after the initiation of the lawsuit. Both of these defenses are used often in a Motion to Dismiss
Fraudulent Affidavits signed by “Robosigners” – If a Bank wants to foreclose on one’s property, the Bank will have to file affidavits with the Court to prove ownership of the note and prove the amount due on the note. The Florida Rules of Evidence requires that these Affidavits be signed and notarized under oath by an individual with personal knowledge of the allegations within the Affidavit and to have personally reviewed the documents. The Attorney Generals of many states including Florida are investigating these Affidavits. These investigations have revealed that many of the signers of the Affidavits signed thousands of affidavits a day, had no knowledge of the loan and had minimal relationships, if any, with the Bank that they were allegedly representing.
Violations Of HAMP – If your Bank loan is owned or guaranteed by Fannie Mae or Freddie Mac or if your Bank is receiving Federal funds from HAMP, they are required to do a proper analysis to determine if the homeowner qualifies for a loan modification. If this analysis is not done, Banks cannot foreclose on the property. Find out if your service provider is a HAMP participant HERE.
Violations of the TRUTH IN LENDING ACT (TILA) and other predatory lending – Banks may have violated TILA by not disclosing all terms and conditions of the loan and interest rate. A homeowner has up to 3 years to rescind a mortgage that has a TILA violation. Moreover, a Bank may have unclean hands if it used predatory practices to secure the loan.
Failure to Conduct a Mediation – The Florida Supreme Court has mandated that if a homeowner desires a mediation, a mediation must occur for all homesteaded properties before a property can be foreclosed.
Call the Noble Law Firm for a Free Consultation on whether the Noble Law Firm can help you out with your foreclosure. Before and during foreclosure litigation, there may be alternatives to save your Home from the Bank.