Florida Foreclosure Defense Strategies That Will Prevent Your Lender From Taking Your Home
The following Florida foreclosure defense strategies can act as a way to bar a lender from taking your home. However, there are other factors you need to keep in mind. Florida judge assigned to your foreclosure case could be a wild card.
Most judge don’t want to hear foreclosure cases especially from pro-se litigants. They have had their fill of them for the decade after the 2008 financial crisis. In other words, you could have the best foreclosure case in the world but you could still be screwed.
Let me let you in on a secret. Most Judges in Florida don’t care. They are prejudiced against homeowners in foreclosure. However, most of the time they are just pre-occupied with other matters. Mostly, they’re thinking about personal matters. So they make the easiest ruling ruling can to clear the docket and get you out of the court room. So they rule in favor the lender.
Why? Well, it’s boils down to economics. In order file an appeal in one of Florida’s District Court of Appeals, the homeowner needs to post a bond. Most of the time the homeowner doesn’t have it. The court figures if the homeowner did, they wouldn’t be in foreclosure.
In other words, you need a foreclosure defense lawyer who know what they are doing and has brass balls.
So, here are some ways that your lawyer can convince a judge you have a legitimate reason to fight for your home.
The Florida Fair Lending Act outlaws lending practices viewed as predatory. The Act specifically requires lenders to disclose material facts about loans before closing. Florida law prohibits a lender from collecting excess late fees or increasing interest rates on loans going into default. State law also bans charging prepayment penalties after the first three years.
The Act also outlaws extending credit without considering a borrower’s ability to repay the loan. The Act also mandates acknowledgment of the full repayment terms of the loan. However, there is no one size fits all approach to deciphering a predatory loan predatory.
A Predatory Loan Usually Consists Of The Following:
- Loan documents that contain hidden terms or incomplete disclosures
- The name of the lender or terms of the loan change in the loan documents immediately prior to closing.
- The lender structures your home loan as a commercial loan.
- The lender discourages a borrowers from taking out affordable loans.
- The lender gives a borrower a loan with a balloon payment that is due in under 10 years.
- The lender puts prepayment penalties in the loan. These prepayment penalties are designed to keep you in the loan as long as possible
- The appraisal value of the home is inflated.
- The loan officer exaggerates the borrower’s income on the application
- Excessive fees and interest rates that exceed 10 points higher than going interest rate.
Lack of Standing Is One Of The Key Florida Foreclosure Defense Strategies Our Attorneys Use To Fight Foreclosure
Standing is a broad concept. It refers to a foreclosing party actually having the right to sue a homeowner. A party who does not have standing cannot prevail in a foreclosure lawsuit. Most lawyers normally won’t argue legal standing in most foreclosure cases.
Most lawyers get shot down by the court when they argue it and they’re own fault. They don’t what they are doing and decide to act like college professors. They want argue outdated arguments about the MERS registry and other pie-in-the-sky arguments. However, standing arguments
Yet, a standing argument is relatively simple argument if argued correctly. The lender has possession of the wet ink copy or they don’t. There are three main ways in which a Plaintiff can demonstrate its standing, they are as follows:
Ownership Of The Promissory Note
Usually Florida judges will allow lawyers for the lender to submit an affidavit or rely on testimony at trial that it is in possession of the original promissory note. Florida courts require a lender to prove they were in possession of the note at the time they filed the lawsuit.
Assignment of Promissory Note
The Plaintiff can present an endorsement of the note or an allonge showing the transfer of ownership of the promissory note. Again, the Plaintiff must prove that the note was assigned prior to the filing of the lawsuit. The endorsement and/or the allonge is evidence of a transfer of ownership.
The Plaintiff can also present a promissory note with a blank endorsement. A blank endorsement of the note gives the right of ownership to whomever holds the original wet ink copy.
Letter of Acceleration
Before a lender can foreclose on a borrower, they must absolutely fulfill any contractual conditions dictated by the Mortgage. Most mortgage contracts provide that the borrower shall receive written notice apprising them of any alleged default. This is also known as a Letter of Acceleration. A Letter of Acceleration must dictate what a homeowner must do to cure the default.
The Letter must indicate a time frame in which to comply. It must also state that they may be foreclosed on if they don’t comply. A lender must send this letter to the homeowner in order to accelerate the mortgage and file a foreclosure action. A Plaintiff who does not fulfill the conditions imposed by the Mortgage contract will not be awarded a final judgment and will instead have its case dismissed.
Statute of Limitations Is One Of The Key Florida Foreclosure Defense Strategies to Use If Done Properly
A party has five years from the date of the default to file a timely mortgage foreclosure lawsuit in Florida. However, under the current state of the law, Mortgages are viewed as installment contracts and therefore each month that a borrower fails to pay the mortgage is viewed as a new default.
This legal fiction makes it possible for lenders to successfully foreclose on borrowers even when the debts more than 5 years old.
Nonetheless, Plaintiffs are still vulnerable to statute of limitations defense or the defense of estoppel where they fail to allege in the Complaint that the default occurred within the past five years or where the Plaintiff’s own payment records reflect that the mortgage debt is more than 5 years old.
Plaintiffs who seek to collect mortgage debt beyond the 5-year statute of limitations are subject to claims under the Florida Fair Debt Collection Practices Act.
There is one key issue to keep in mind if you and your lawyer plan on making this argument. Most judges confuse this with the Florida Supreme Court’s ruling in Bartram v. U.S. Bank National Association.
Unable to Meet Burden of Proof at Trial
This is technically not an affirmative defense. However, a lender still has the burden of proof . Therefore, it is sometimes advantageous for a borrower to take a foreclosure defense case to trial.
Examples of this include when the Plaintiff’s settlement offer to the borrower is weak and the borrower has nothing left to lose so to speak, or conversely when the borrower has a strong defense.
Even a borrower with a mediocre case can win at trial if him/she are dealing with an inexperienced or inundated foreclosure mill lawyer.
Familiarity with a how a particular judge may rule on an issue, or how your opponent and its lawyers approach litigation together with a keen understanding of the court system truly works is often time’s borrower’s best weapon against a looming foreclosure lawsuit. Good attorneys know how to exploit the weaknesses of their opponent’s case.
Prevailing Party Attorney Fees
Borrowers are entitled to attorney’s fees under the mortgage contract when they prevail over the Plaintiff in court. However, keep in mind that every foreclosure action is unique. You should count on an experience foreclosure defense lawyer with a support team with people who come from the lending world.
Feel free to call the MFI-Miami mortgage experts at 888.737.6344. We can also refer you to one of our skilled Florida lawyers.
Article is for informational purposes only and is not to be construed as legal advise.
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