Florida Foreclosure Lawyer

Once a foreclosure case has gone to trial, there are really only three possibilities left. Either the case will be decided in favor of the lender and the foreclosure allowed to continue, the case will be dismissed and the lender forced to begin the foreclosure all over again or not allowed to do so, or one party or the other will attempt to file an appeal with a higher court.
Mortgage companies will often not be able to win a foreclosure lawsuit based on the merits of the case due to the near impossibility of following all of the rules and laws that govern mortgage lending. And if homeowners press hard enough, the entire complaint against them will typically fall apart. So the bank’s attorneys will most likely have to rely upon mistakes made by the borrowers themselves in following the court rules.

When this happens, corrupt judges and corrupt attorneys can work together to force homeowners defending themselves out of the court system and justify it with confusing legal language or one-sided rationalizations. Borrowers who do not have years of legal training from a state-approved law school will find it difficult to convey their messages and will often be ignored or marginalized while the court and attorneys work against them.

But in some lawsuits, the bank may just have made so many egregious errors that it is impossible not to award judgment to the homeowners. In such cases, it is important for the borrowers to determine if the complaint has been thrown out with or without prejudice, because this difference will determine if the bank is able to begin the lawsuit again or if it is barred from beginning another lawsuit to force foreclosure of the house.

A dismissal without prejudice of the bank’s lawsuit means that the lender can re-file the case once it has fixed the errors in the original case. If the case was dismissed due to the bank not following state pre-foreclosure notice procedures, the lender may be able to follow them correctly and throw the house back into foreclosure. But when cases are filed with prejudice, the lender may not bring the case back into that court.

If either party believes that the court made serious errors in deciding the case or allowed for gross violations of rules or law, it may be worth filing an appeal. Of course, if the bank loses its case, it will most likely appeal because it does not want to lose all of the money it has already put into the lawsuit and it has more to gain from doing whatever possible to take the house.

But homeowners deciding to appeal face a more difficult choice. On the one hand, if all they were doing was buying time and have found a solution to foreclosure, it may not be worth the expense and trouble of appealing. At this point, moving on with their lives may be best if they have put up a defense and simply lost to the bank, especially if winning the case was not the primary purpose.

On the other hand, if homeowners are aware of violations of the rules in favor of the bank and wish to drag out the foreclosure process even longer, filing an appeal may be the way to go. Appeals must be filed in strict accordance with the Appellate Court, so more rules of procedure will have to be printed out and followed. But this process can take additional years and homeowners can request a restraining order against the bank from taking any other foreclosure actions until the case has been reviewed.

If a foreclosure case actually makes it all the way through the legal process and goes to a trial and is decided upon by a judge or jury, homeowners can rest assure that they have done nearly everything in their power to stop foreclosure and drag the process out for as long as possible. It is at this point that they will have to decide where to go next, either to appeal or not, depending on the outcome of the lawsuit.

Posted by George Beckus Esq.

Of all the steps in defending a foreclosure in court, actually going to trial to argue and win a case may seem the most stressful to the average homeowner. But depending on how much care and preparation has gone into their defense to the bank’s positions and their own claims against the lender, the trial may proceed much easier than they expect.
But in fact, most cases never even get to the trial stage of the legal process and all of the research and preparation serves to force the parties to compromise and set up some sort of mutually beneficial agreement. Lawsuits are either thrown out of court for one reason or another, ruled in favor of one party by summary judgment, or the plaintiff and defendant get together to work out a solution like mortgage modification that does not involve the court. This is almost always a better solution than the judge would be able to rule on anyway.

It is worth remembering that most of the work done by homeowners will be focused on shooting down at least one element of the bank’s case, and this is what the defense will focus upon. In the case of foreclosure, this will be a breach of (mortgage) contract case, and the bank will have to prove four elements. These are the following:

•A legally binding contract existed between the parties.
•The lender did everything required under the contract.
•The borrowers failed to meet the requirements of the contract.
•The borrowers’ breach of contract caused the bank actual damages.
In their initial complaint, the bank does not have to state what the elements are of the position they are relying upon. This leaves is up to the homeowners to determine the elements and begin trying to disprove each of them. But borrowers have a lot of material to work with in disproving these elements of the case, and all they have to do is create enough doubt in the judge’s or jury’s minds to prevent a ruling in favor of the mortgage company.

There will be a lot of methods homeowners may use to disprove the bank’s positions, much of which are beyond the scope of a single article. Impeaching witnesses by pointing out bias, the impaired ability to observe the facts, and prior inconsistent statements is a start in knocking down any witnesses the bank brings. The bank may attempt to bring in witnesses to convince the decision makers that homeowners should lose their houses, despite any laws violated by the bank in the first place or even a predatory lending situation.

There are also numerous tools that can be used in the courtroom that follow the standard structure of a lawsuit. Homeowners should research how direct examination, cross examination, exhibits, making and responding to objections, witnesses and expert witnesses, opening statements, and closing arguments will fit into their case. Homeowners can use these tactics, as well as see them used against the borrowers by the mortgage company, so it is important to understand how they fit into the overall trial.

This is the part of the entire legal defense to foreclosure process where homeowners may wish to consult with an attorney, either to represent their case in court or simply to provide an awareness of how the trial will work. Both of these options will cost money, of course, but they can help prevent a home from being sent to a quick foreclosure because trial rules were not followed. The value of high-quality, relevant legal advice simply can not be overstated.

Homeowners, though, can try and defend the case on their own and have been successful in the past in doing so. Thus, there is simply no reason to become stressful at the though of arguing a case in court designed to stop foreclosure for good. After all, the case will most likely be settled long before the trial, and homeowners who do defend their foreclosure are much more likely to win or get a draw than those who simply give up on saving their homes and allow the bank to get a quick victory.

Posted By George Beckus Esq.

Some time during the process of defending a foreclosure in the court system, homeowners may cause the bank to file a Motion for Summary Judgment. This requests the court to forget about the trial and borrowers’ case against the lender and simply award the foreclosure judgment to the bank. In effect, this motion states that there are no issues worth the judge’s time to examine and that it would be much easier if the bank simply won the lawsuit and got to take the home.
Obviously, such a motion being decided in the mortgage company’s favor would have a severely negative impact on the homeowners’ efforts to save their home by knocking down the bank’s lawsuit. But the bank or its attorneys may realize that they really do not have a strong case to have the property sold to satisfy the loan and will simply declare all of the defenses frivolous and not worth the court’s time.

This tactic is almost always used by the lender sometime after the homeowners file the answer to the complaint but before a trial is set, in the hopes that the case will not have to go to trial at all. The bank and the attorneys know that having a judge find some way to ignore the defenses and simply get on with the foreclosure will be much easier than attempting to convince a jury of fellow homeowners that the bank should be awarded the property even though its case is shaky or nonexistent.

Homeowners who are forced to defend against a Motion for Summary Judgment filed by the bank are immediately put into a difficult situation. They must both argue to the court why the bank’s motion should be denied and show other relevant cases to support their positions. The courts must be shown that there are genuine issues of material fact that must be decided upon before any judgment can be reached in the case and that a summary judgment would be in error.

However, borrowers can also file their own Motion for Summary Judgment if they believe the bank has no real case to argue for foreclosure of the mortgage. This can be due to violations of the Truth in Lending Act (TILA), an incorrect notice of rescission, or virtually any other reason that the bank should be disqualified from pursuing the lawsuit. Homeowners should be aware of this legal tactic to request the court throw out the lender’s case due to a clear deficiency in its ability to sue.

If neither party files a Motion for Summary Judgment or all such motions are denied, the case will then go to a trial, either before a judge or a jury. Thus, this is the last chance for the bank to shoot for an easy win, as well as the homeowners’ final opportunity in stopping foreclosure in the court to have the case thrown out before a trial. But if the homeowners have established a solid defense up to this point and answered the complaint effectively, there will be little chance the lender will be granted such a quick and easy foreclosure.

Posted By George Beckus Esq

At any time after the lawsuit is filed, homeowners can begin the process of obtaining information from the bank regarding the mortgage and the foreclosure. In the courts, this is known as “discovery,” and can be used by either side to produce documents and determine which issues are at stake in the lawsuit. This process will also give borrowers more information on what defenses to raise, as they can begin it as soon as they have been served with the paperwork, and how best to argue the case if it goes to a trial.
There are a number of tools that borrowers can use to begin gathering information directly from the bank or other third parties, including the mortgage broker, real estate agent, servicing company, and originating lender. The most commonly used of these are depositions (either oral or written), interrogatories, requests for admission, and requests for the production of documents.

A request for the production of documents is self-explanatory and can be used by homeowners to force the bank to produce the original note or mortgage to verify that it has the legal standing to begin a foreclosure lawsuit. Other documents can also be requested, either directly from the lender or from third parties; some of these might include the sales contract from the real estate agent, closing documents from the title company, an invoice of the appraisal, and so on.

Third parties may also have to be subpoenaed to make them provide the requested information, but they can be a source of important information in raising a foreclosure defense. The court does not need copies of actual discovery requests that borrowers or the lenders make to each other, but they may require that a notice be filed that discovery requests have been fulfilled.

Interrogatories are questions or direct statements that one party asks of the other and can relate to almost anything in regards to the loan. Homeowners should note that this type of discovery can only be sent to parties to the lawsuit, which means anyone suing or being sued. So, it would not be possible to serve them on the mortgage broker or title company unless they are brought into the lawsuit. Also, the Federal Rules of Civil Procedure also limit interrogatory questions to 25 total so it is important to decide on the most important information to get from the mortgage company.

Typically, interrogatory materials begin with a list of definitions so each side is clear on what the other is referring to when using certain words or phrases and will force the bank not to fall back on the position that the homeowners’ interrogatories were too vague to respond to. If the definitions are provided to the lender’s attorneys, they will have to find out some other way not to answer or simply provide the answer.

Requests for admissions require the bank to admit or deny a particular statement. A position is stated by the homeowners and the bank will be able to respond with a simply “Admit” or “Deny.” This helps clarify the issues which are being argued in the case and provides a list of facts that the bank and homeowners agree upon that do not have to be decided by the court. If borrowers are served with this type of discovery, it is vital to respond within the required time period (as determined by the rules of procedure), because a failure to respond is counted as admitting the truthfulness of the bank’s requests.

Finally, depositions are a little bit more involved type of discovery and usually consist of questions one party asks anyone else face to face. Anyone can be the subject of a deposition, and these proceedings are done with a court reporter placing the deponent under oath. The main purpose of a deposition is to find out more about the bank’s case and question any adverse witnesses that may be trotted out to injure the borrowers’ positions. The issue of depositions deserves its own book and several have been written about them, to which homeowners are referred if they wish to use this type of discovery.

But as soon as the bank begins the lawsuit and the homeowners are served with the complaint, they can begin requesting that the bank provide documents and answer interrogatories. These can be done with the intention of forcing the bank to admit that it does not really have a case or its ability to sue is nonexistent or it did not follow the correct notification and pre-foreclosure procedures. Banks typically fail to follow all of the laws and rules, so the more research borrowers do into these laws and the more information they get the lender to provide, the easier it will be to stop foreclosure by shooting down the bank’s court case.

Posted By George Beckus Esq

Until the arrears due on a defaulted mortgage are paid off, either through a repayment plan, selling the home, or refinancing, the bank will never give up trying to pursue a foreclosure against the owners. No matter how many attempts to take the home fail, the lender and its attorneys will always return to court, filing motions and appeals which are meant to bankrupt the borrowers or intimidate them into giving up their defenses.
Thus, even when a Motion to Dismiss a foreclosure lawsuit is successful, the best the borrowers can hope for is a few extra months to plan for their future without the threat of being evicted. The bank will have to go back to the drawing board and begin the pre-foreclosure and notification processes again, which may take several months. But the loan will end up back in court — there is little doubt of this happening.

Of course, this does not mean that homeowners should not file extensions for more time and motions to dismiss the case every time they have reason to do so. But eventually, the lender may actually comply with all of the laws in a manner that satisfies the judge in the case. Or else, the judge may just know who is paying the attorney fees and court filing fees in the case (the bank) and simply allow the lawsuit to proceed anyway.

Once this happens, the homeowners must file their answer to the foreclosure lawsuit. Every answer will have three major parts to it, along with a fourth optional part that homeowners may use if the case against the bank warrants it. These parts of the answer are statements admitting or denying the allegations of the bank, a list of defenses, a list of affirmative defenses, and any counter claims the borrowers are making which act as a lawsuit against the mortgage company.

In answering the complaint, then, homeowners will refer to a copy of the bank’s allegations and the evidence it is relying upon to make them. If they do not have a copy of the complaint, they may obtain a copy from the clerk of court. Otherwise, it will be close to impossible to admit or deny the bank’s arguments if the homeowners have no idea what those arguments are to begin with. And admitting one allegation or another does not necessarily mean the borrowers are admitting fault or that the bank has a right to take the home.

The defenses will list reasons why the homeowners believe the bank should not have filed the lawsuit in the first place. In most answers, these are presented as a list or an outline, rather than meticulously detailed. They simply put the courts and bank on notice of the defenses the borrowers will rely upon if the case goes as far as a trial. But owners do need to list every defense they will use, as they can not raise a new defense later on in the case if it was not contained in the answer or an amended answer.

Affirmative defenses are statements arguing that, while the bank may be right about one of its allegations, it should not matter for one reason or another. Thus, even though the bank may not be completely wrong in suing for foreclosure, judgment should not be awarded in its favor anyway. If the lender fails to meet notification requirements or it is the cause of the foreclosure itself (due to mortgage servicing fraud, for instance), the borrowers may be able to make the case that the bank should not be awarded a foreclosure judgment.

Counter claims act as lawsuits the homeowners file against the bank, but in the context of their answer and defense to the bank’s initial lawsuit. Any counter claims the borrowers wish to raise should be included with the answer and not “saved for later.” Once the lawsuit involving the mortgage contract has been decided, the borrowers will not have the opportunity to bring it back into court to make claims against the bank. They will have to be raised during the foreclosure lawsuit and listed in the answer for the courts to consider them.

Although it may seem like a lot of work, homeowners can put together a fairly robust defense against the mortgage company by researching a few laws and making sure they use the courts to their advantage. After a Motion for Extension of Time and a Motion to Dismiss have extended the foreclosure legal process by a period of months, it is time to get to the real work of defending the home against the bank’s lawsuit. Filing an answer is the first step here, and will put the bank on notice that it will not have an easy time of taking the property from the borrowers without making absolutely sure it has complied with all of the required laws and regulations.

Posted By George Beckus Esq.

Once homeowners defending their home against foreclosure in court have received additional time by filing a Motion for Extension for Time, the next step is to begin researching their options for the actual defense. But if the bank has committed certain errors in attempting to establish their ability to sue at all, borrowers should hold off on filing their answer until a Motion to Dismiss is decided upon by the judge in the case.
However, there are only a handful of strong reasons for filing a Motion to Dismiss which can stop foreclosure before the the merits of case are even seriously considered. These defenses have much to do with the legal ability of the bank to sue the borrowers in the first place, or its inability to follow the necessary foreclosure laws and comply with notice requirements. But these can often be the most tricky requirements to meet, and any failure can be used against the bank to throw the lawsuit out of court.

Especially if the homeowners know that their loan has been sold around to various lenders and servicing companies, they should contest who actually owns the mortgage at the time of the foreclosure. Banks may be unable to show an assignment of the loan from one company to the next, especially if the lawsuit is being pursued by a large lender or servicer.

One clear indication of this deficiency is if the bank does not attach the note or mortgage to the complaint, either attaching a copy or admitting it does not have possession of the note. It is difficult to establish that a contract has been breached between two parties if the party suing for breach of contract can not even produce the original contract. This is the problem banks run into when they attempt to foreclose on a home but have not done the homework necessary to establish their ownership of that mortgage.

Also, if the borrowers have reason to suspect that the bank did not follow the state and county foreclosure laws dictating how notice of the foreclosure lawsuit must be given, a Motion to Dismiss for Insufficiency of Process may be filed in lieu of an answer to the complaint. Obviously, if the lender has not even fully complied with the requirements to bring a lawsuit in the first place, there is little worth defending, and the homeowners may be able to have the suit thrown out.

The bank will have to restart the foreclosure process all over again, but having the case thrown out the first time will give borrowers extra time to find alternative solutions to foreclosure. Having filed a successful Motion to Dismiss because of the bank’s attorneys’ mistakes in filing the suit to begin with will also drive up the costs of the foreclosure altogether and may help persuade the mortgage company to come to the negotiating table with a reasonable offer.

Possibly the best aspect of the Motion to Dismiss is that it will drag out the foreclosure for another few weeks at the most and potentially over a month or more. The courts have stated that defendants do not have to file an answer to the complaint until a Motion to Dismiss has been ruled upon. When borrowers file an extension for time, followed by a Motion to Dismiss, the bank’s attempts to take the home quickly are put on hold. Although this may cost the homeowner more in the long run in interest and late fees, it also provides a much needed opportunity to look into other defenses or methods to save the home.

For the last few years, the mortgage industry has entered a state of disrepair, with hundreds of lenders going out of business, mortgage securitization firms filing bankruptcy or entering mergers or receiving federal bailouts, and even the nations two largest mortgage buyers, Fannie Mae and Freddie Mac, being nationalized. With all of this going on in addition to an alarming foreclosure crisis, banks may have a difficult time proving they can even sue families for foreclosure. But unless the owners try to have these lawsuits dismissed before they can be ruled upon, banks will continue to be able to steal homes.

Posted By George Beckus Esq

Homeowners researching their options for stopping foreclosure in the court system can get bogged down in dozens of different defenses. From the note not being attached to the complaint, to constructive fraud, to to violations of state and federal racketeer influences and corrupt organizations acts (RICO), borrowers may feel overwhelmed at all of the various positions to raise in their defense.
But which ones are the most important and will quickly put the bank on notice that there may be serious deficiencies in its lawsuit? With so many possible defenses, homeowners may rightly feel as if they will never have the time to evaluate every defense, and if they choose one with only a small penalty, the bank will still be able to take the home. Thankfully, there are a few different defenses that should be looked at first, as the issues raised by these have stronger possibilities of alerting the courts to the fact that the lawsuit does not even deserve to be considered.

The first act that homeowners should become familiar with is the Truth in Lending Act (TILA). Violations of certain requirements of TILA can result in the entire loan being rescinded, with every dime the borrowers ever paid on the mortgage returned to them, the foreclosure lawsuit thrown out and, late mortgage payments no longer reflected on the credit report. For a family who is struggling to pay their bills, having their entire down payment and every monthly payment of principal and interest returned to them can be a significant help, not to mention this will stop foreclosure in its tracks.

Violations of other requirements of TILA can also result in the bank being counter sued for monetary damages and attorneys fees. And finally, if the originating lender never provided a right of rescission to the borrowers, the loan may still be able to be rescinded. In any event, this is the federal act that homeowners should initially research and spend the most time attempting to locate violations of, as there are many requirements that lenders must meet, many of which the original loan broker may not even have been aware of.

While violations of the Truth in Lending Act only affect purchase loans, a section within TILA also provides for rescission of refinance loans. The requirements the bank must uphold on refinances are spelled out in the Home Ownership and Equity Protection Act (HOEPA). When a loan falls under HOEPA guidelines, certain disclosure rules must be complied with, in addition to disclosing affiliated business arrangements. If the lender does not meet all of the requirements, the loan may be able to be rescinded if the defense is raised during a foreclosure lawsuit.

Finally, the homeowners can research who actually owns their mortgage at the time of the lawsuit to find out if the bank suing them even has the legal right (standing) to do so. Mortgages have been traded around the industry several times and the mortgage-backed securities made out of them may have changed hands hundreds of times, or there may not have even been an actual owner assigned to the loan. If borrowers suspect that the bank suing them is not the owner of the loan, they can contest this in court and request the lender show the assignment of the mortgage and the original note. If these can not be produced, there is a good chance the bank was not properly assigned the loan and has no ability to sue for foreclosure.

If the bank meets all of the requirements under these acts and legal issues, the homeowners may have to begin digging deeper to find potential violations of federal or state law or the court process. But these three defenses, TILA, HOEPA, and determining the real party in interest, may be the easiest to research and yield the best results for borrowers who are attempting to stop the foreclosure as quickly and most efficiently as possible.

Posted by George Beckus Esq

Once the homeowners have gone through the rules that they and the bank’s attorneys will need to follow in court and have requested additional time through a Motion for Extension of Time, it is appropriate to begin researching various legal defense options. While many of these defenses against foreclosure may be used in the answer to the complaint, a few of them should be looked into first to determine if filing a Motion to Dismiss is appropriate.
This part of the process can be labor intensive and quite time consuming, so borrowers must be willing to put in the hours of research into how various federal laws work, what would indicate a violation, and what the violation means to the bank’s lawsuit. The use of one defense or another will, of course, depend on the homeowners’ goals with the house, whether they want to keep it, force the bank to negotiate a mortgage modification or other solution, or simply get as much time as possible to sell or move out.

If they are trying to have a mortgage rescinded entirely, borrowers may not want to raise defenses with a maximum penalty to the bank of a few thousand dollars, for instance. Finding a stricter law with heavier penalties would make more sense. But for homeowners just trying to get some extra time to save up money to move out, the more that can be argued against the bank, the more time the lawsuit will take.

In any case, homeowners trying to stop foreclosure by defending the lawsuit should pay special attention to the defenses that would allow them to have the entire mortgage rescinded or the lawsuit thrown out of court. Certain violations of the Truth in Lending Act (TILA) and the Home Ownership and Equity Protection Act (HOEPA) would result in severe penalties for the bank. As well, the messiness of mortgage assignments may cast doubt on the mortgage company’s ability to sue in the first place, if it can not prove it owns the original note.

Also, homeowners should have as one of their goals filing a Motion to Dismiss the case based on the bank’s lack of legal standing or failure to follow the notification and pre-foreclosure procedures before initiating the lawsuit. Both the Federal Housing Administration (FHA) and state foreclosure laws dictate what a bank must do before it declares a house to be in foreclosure and attempts to have the homeowners removed by court order. If the lender does not follow these procedures, the lawsuit may be thrown out for the present time until the bank complies with the requirements. And these defenses can be raised before an answer to the complaint is even filed, if a Motion to Dismiss is filed instead.

Filing a Motion for Extension of Time may be almost automatic for homeowners facing foreclosure. The benefits of this apply to nearly all borrowers, including those who want extra time to mount a defense, work with the lender on a solution to foreclosure, or just want an extra few weeks to get their finances in order before moving out. But for those owners who are serious about defending their home in court, the next step after getting more time is simply researching what laws and regulations apply to their case and beginning to mount their defense.

Posted by George Beckus Esq

Time is the most critical factor in any foreclosure proceeding. Homeowners never seem to have enough of it, and every solution to the problem takes too much of it. And all the while, the bank is accelerating fees and charges as time goes on, while its attorneys file one motion after another with the court to push the foreclosure through as quickly as possible. This is why borrowers who are defending against the lender need to obtain as much additional time as they can.
Obviously, there are numerous ways to do this, from requesting that the bank simply put the process on hold to filing bankruptcy to stop foreclosure. These methods can be quite effective, and most homeowners overlook simply asking the bank to give them an additional month to sell, refinance, or find another solution to foreclosure. And although most borrowers consider bankruptcy a last resort to save the home, it will put the foreclosure on hold indefinitely until the courts have sorted out the bankruptcy case.

But homeowners can also use their local court to gain additional time to save the house or put together a more suitable defense to the foreclosure lawsuit. By filing a Motion for Extension of Time, borrowers can typically receive at least an additional thirty days to file an answer with the court. Most of the time, lawsuit defendants are given 15-20 days to respond to an initial complaint, which may not be nearly enough time to research the applicable issues and put them into a coherently organized defense.

Borrowers who are facing foreclosure are also notoriously stressed out and uncertain of just how to proceed with their lives. Losing a job or facing a medical emergency can create a crisis moment in the life of a family, and having roughly two weeks to put together a defense to a lawsuit may be impossible.

Thankfully, courts are mostly favorable to a Motion for Extension of Time, and banks rarely even oppose them by filing an objection, especially if the request is for a reasonable amount of time. Of course, if the homeowners ask for an additional year in which to file their answer without repercussions of foreclosure, the courts will view this as nothing more than a blatant attempt to take advantage of the legal system and keep the foreclosure on hold forever.

But reasonable requests for additional time will most often be granted. Once the extra time has expired, however, the homeowners better have filed their answer, if they hope to utilize the government courts to stop foreclosure for good. If the answer if filed after this date, it will probably be thrown out and a default judgment awarded in favor of the lender. Thus, if a Motion for Extension of Time is filed, borrowers must use that time to put together their thoughts and answer the complaint.

Of course, if there is reason to file a Motion to Dismiss instead of an answer, this should be done. As discussed previously, an answer to the complaint does not have to filed until the hearing for the Motion to Dismiss has been held. If homeowners use their additional time from the Motion for Extension of Time to attack the bank’s ability to bring the lawsuit at all, they can file a Motion to Dismiss, and avoid filing their answer to the complaint. This will drag out the foreclosure process even longer and make the bank defend its standing to sue in the first place.

The longer a foreclosure lawsuit takes, the more the bank may be willing to come to the negotiating table and offer the borrowers are beneficial solution. Few homeowners utilize the courts effectively and even attend the initial hearing for fear of being thrown into a mythical debtors prison or publicly humiliated, let alone defend the bank’s efforts to take their property. But a few simple motions, filed in accordance with the applicable rules of procedure, will put lenders on notice that homeowners will not go down without a fight.

Posted By George Beckus Esq

When dealing with a foreclosure defense, homeowners’ largest stumbling block will most likely come from the technical aspects of how the court system works. Various sets of rules are in play in every court in the country, and these rules will have state and local variations that must be taken into account by both parties to the lawsuit and all of the attorneys involved. But the complexity of each of the layers of state and local rules may give homeowners a tremendous advantage in locating areas where the bank violates procedure.
Courts have two different types of rules, one to govern criminal procedures and one for civil. These “Rules of Civil Procedure” will apply to foreclosure cases, as they are disputes between individuals (or corporations) and not violations of state or federal criminal laws. So homeowners should print out their state’s rules of procedure, as well as any other rules that may be administered by the local court system. These can usually be printed from the State Supreme Court website, and copies of local rules can be obtained from the individual court.

Many states have now either adopted the Federal Rules of Civil Procedure, or have followed the general layout and numbering system in writing their own rules. If homeowners need to search a specific rule, they may be able to do so through the federal version online and have a general idea of where the similar rule can be found in the state version. But it is also important not to rely only on the federal rules, as changes in wording or numbering may be made by the states.

Homeowners who cite a particular rule in their defense will want to refer to the applicable state rule, rather than the corresponding federal one. This is another reason why it is important to refer to federal rules, since they may be easier to research online and gather definitions and background information about, but always make sure the numbering system follows the state’s version, as that will be the set of rules that are followed in the courts where foreclosure cases are generally heard.

Actual violations of various rules will be examined in a future article, but for now, homeowners who are interested in the process of making a defense to a foreclosure lawsuit simply need to have the state and local rules in front of them. This serves a number of purposes that will keep the homeowners’ case from being thrown out of court prematurely and possibly put the bank on the defensive.

First, the owners will be able to follow the rules themselves and make sure that the bank can not have the borrowers’ case thrown out on some technicality. Second, homeowners can examine the rules looking for violations that the attorneys or bank have committed and attempt to have the bank’s lawsuit thrown out. And finally, simply having an awareness of some of the applicable rules will give homeowners more confidence when they must appear at a hearing or state a defense to the bank’s allegations.

However, all this may be a daunting task for the distressed homeowner, who does not have the required background in law to defend the foreclosure, or even begin defending the foreclosure. That’s why it is always recommended that the distressed homeowner seek the assistance of a qualified foreclosure defense attorney.

Posted by George Beckus Esq