Foreclosure Legal Defenses
Are there any Legal Defenses Against Foreclosure?
Facing the prospect of foreclosure can definitely be stressful. However, you may have a number of legal defenses available depending on your circumstances. These may vary depending on the state and also according to the individual claim involved.
Some foreclosure defenses include:
- Mistake: Mortgage agreements are basically subject to contract rules and principles. Thus, if there has been a major mistake or error in the agreement, it may affect the outcome of a foreclosure claim.
- Fraud or Undue Influence: Mortgage documents cannot be signed or created under conditions of fraud or undue influence. If you believe that you were forced to sign a mortgage agreement under the threat of violence or force, it could nullify the agreement.
- Predatory Lending: Many different mortgage schemes and scams have arisen in the past decade. In particular, predatory lending is illegal and a statutory violation, below.
- Statutory Violation: Every state has laws and statutes that outline the foreclosure process. If your lender has violated these laws, it could be a defense against a foreclosure claim. For instance, most states require that lenders send a notice of default at least 30 days before initiating the foreclosure process. If they fail to give you proper notice, the court may have to stop any existing foreclosure hearings and begin again
- Issues with the Promissory Notice: Only the original owner of your mortgage loan can begin the foreclosure process. Once the process starts, they should be able to provide evidence of your original promissory note which addresses payments. If they cannot provide the promissory note, the foreclosure hearings must be postponed until the proof can be furnished.
Finally, it is also common for a bank to make mistake in their bookkeeping and record-keeping. For instance, they may have failed to record your previous payments, which means that you are not in default after all, and that foreclosure should not have begun.
Note that many of these defenses may not actually completely do away with the foreclosure issues. Some of these serve to delay or restart the process. However, this can be helpful, as it may grant you more time to come up with payments, which can prevent foreclosure in the long run.
How can a Lawyer Help with Foreclosure Proceedings?
If you believe you are wrongly facing foreclosure, you may wish to speak with a real estate lawyer immediately. An attorney can help you defend against the foreclosure proceedings according to the laws of your state. Every state has different foreclosure laws, so be sure to ask your attorney if you have questions about your situation.
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Last Modified: 08-10-2011 02:49 PM PDT
