Foreclosure Defense Lawyer
The financial trouble experienced by many individuals across the United States in recent years has triggered a staggering number of lenders to institute foreclosure proceedings on home mortgages. In light of this, there has been increased attention paid and scrutiny of foreclosure practices on the part of banks as well as on how mortgages are approved in general. As a result, more and more homeowners are trying to defend against foreclosure proceedings in an attempt to save their home.
Legal Standing
The bank must show it has legal standing to foreclose, which involves the bank demonstrating that it has the authority to enforce the mortgage agreement. In many cases, the bank designates its ownership rights over the mortgage to a third party. In that case, the third party must also prove it has the authority to foreclose. Oftentimes, the documentation used to record this designation is poor or compromised, giving the homeowner a defense in asserting no legal standing for the foreclosure.
Original Note
In order to properly foreclose, the bank must possess the original mortgage note. In most cases, in the absence of the note, the bank will be unable to foreclose. However, some jurisdictions allow for flexibility on this issue in cases where the original note was lost or destroyed.
Note Splitting
In a foreclosure proceeding, the bank may attempt to split the ownership of the mortgage from the ownership of the loan, thereby creating two separate assets from one. However, prior court holdings have said that this practice is not allowed and that the mortgage and loan are one.
No Trust
Many times, mortgages are assigned to a large trust, but the lifespan of the trust is often inconsistent with the life of the mortgage. In some cases, the assignment of a mortgage to a trust predates the actual formation of the trust, resulting in the foreclosure being undermined.
No Knowledge of the Facts
Foreclosures are similar to other legal proceedings in that a burden of proof must be met and the party bringing the action must have a basic knowledge of the facts alleged in the complaint. Recent challenges have resulted in courts more strictly applying the rules of evidence to foreclosure proceedings, no longer allowing actions to move forward without a bank representative demonstrating knowledge of the facts surrounding a foreclosure.
No Attorney Affirmation
Attorneys representing banks are more often being required to submit an affirmation attesting to the truthfulness of the foreclosure documents along with the documents submitted to institute the foreclosure. In the absence of such affirmation, the action may be dismissed.
Wrongful Assignment
This defense involves challenging the validity of any number of mortgage transfers instituted by the bank. Again, the documents proving the validity of such transfers are often weak or non-existent, and if the transfer cannot be properly proven, the foreclosure may be dismissed.
Conflict of Interest
In cases where the bank assigns rights to a third party, that third party may be named in the foreclosure action as both the plaintiff and defendant. This presents a case in which a conflict of interest can be claimed as a reason to dismiss the action.
Chain of Ownership
If the bank has sold the mortgage to multiple parties since the loan’s inception, it must show evidence of each sale along with retention of foreclosure rights with each transfer, or the action may be dismissed.
Hiring an Attorney for Foreclosure Defense
Examining documents related to a foreclosure proceeding can be burdensome and complex, as can developing a defense against such proceedings. It is wise to hire a lawyer who is skilled in representing clients in foreclosure defense in order to ensure proper handling of your case. If your home is being foreclosed on, you may have legal rights and options against the bank. Contact a law firm today to schedule a consultation to discuss your matter.