In Florida, foreclosures are a judicial process. This means that before a homeowners’ association, bank, or lender can foreclose on a home, they must first receive approval from the court. A foreclosure case must be filed in the circuit court in the property’s exact location. The Florida foreclosure law requires all foreclosure cases to be heard in the court of equity. Courts of equity have the authority to consider legal defenses and principles of equity or fairness. Judges overseeing foreclosure cases can consider acts by lenders that would render a foreclosure unfair.
During the judicial process, homeowners have the opportunity to challenge the foreclosure and raise defenses. If a foreclosure sale has already been scheduled for your home, you should speak to a Broward County foreclosure defense attorney.
Foreclosure Trials are Heard by a Judge Only
Foreclosure trials do not involve a jury. Instead, only the judge assigned to the case will listen to arguments from both sides. Juries are much likelier to be persuaded by arguments of fairness than judges are. As such, it is important to work with a South Florida foreclosure defense lawyer who can prepare the defenses that would require a judge to decide in the borrower’s favor.
Proving Unclean Hands
Proving unclean hands is a viable defense in many foreclosure cases. The case of Federal Savings and. Loan v. Robert Smith was a landmark case in which the judge’s ruling stated that when a borrower can prove a lender had unclean hands, the courts must deny the foreclosure action. Unclean hands mean the lender had a role in the reason for foreclosure.
For example, if a bank told a homeowner that they could pause their payments for a certain amount of time, and the lender then started foreclosure proceedings during that time period, that is tortious interference. Tortious interference is one type of action that could prove unclean hands and stop a foreclosure lawsuit from proceeding.
To prove unclean hands, homeowners have the burden of proof to show that lenders engaged in an illegal or fraudulent transaction. Borrowers must also show that they were harmed by the lender’s actions. Using the above example, showing that the lender has started a foreclosure lawsuit and they are now in jeopardy of losing their home, that is enough for a homeowner to show that the illegal or fraudulent actions of the lender caused them harm. The illegal and fraudulent actions must also be directly connected to the failure of the homeowner to make their mortgage payments.
Failure to Fill Conditions Precedent
A condition precedent is a term that refers to an event that must happen before the lender can foreclose on the home.
For example, one of the conditions precedents in Florida foreclosures is that lenders must send borrowers a notice of default. The notice of default must outline the deficiency amount and the steps the borrower could take to bring their loan back into good standing. Additionally, the lender must provide the borrower a minimum of 30 days to pay the delinquent amount and that timeframe must be outlined within the notice. If a lender does not meet this requirement and fails to send the notice of default, they have failed to fill one of the conditions precedents, and that can serve as a defense to foreclosure.
The notice of default is just one condition precedent that plays a role in foreclosure cases in Florida. Once the defense is raised, the lender then has the burden of proof to show that they sent appropriate notice. A Coral Springs foreclosure defense attorney can advise on the other potential conditions precedent that may be relevant to your case.
Loan Modification Through the Lender
Through a loan modification, you can change any aspect of your mortgage loan. This includes the principal amount owed, the interest rate, the length of the loan, and more. You have to apply for a loan modification with your lender and the lender also has to approve any modification made to your loan.
Many people do not have experience negotiating with lenders. A Coral Springs foreclosure defense attorney will know how to negotiate for the best terms and will give you the best chance of a loan modification approval.
Loan Modification Using Chapter 13 Bankruptcy
You can obtain a loan modification without needing the approval of your lender. If your lender does not approve a loan modification, or you do not think going through your lender is the best option for you, you can file Chapter 13 bankruptcy.
A Chapter 13 bankruptcy will restructure the delinquent payments into a five-year plan. You will not have to pay the entire mortgage over the course of five years, but you will have to repay the delinquent amount. If you are successful with your Chapter 13 bankruptcy case, you can force your lender to comply with the court-mandated repayment plan.
Still, it is critical that you remain current with any upcoming mortgage payments and that you make them on time. Any mortgage payment that comes due once your bankruptcy case is final is not protected by the provisions of bankruptcy law and so, your lender could ultimately start the foreclosure process once again.
An Automatic Stay Can Stop a Foreclosure Sale
As soon as you file either Chapter 7 or Chapter 13 bankruptcy, the court will issue an automatic stay. An automatic stay protects you from debt collection attempts because it bars all creditors, lenders, and debt collectors from trying to collect on delinquent payments. This includes mortgage payments you have missed, too. If you file bankruptcy before the foreclosure sale, it will automatically and immediately stop the sale from going ahead, regardless of when the foreclosure sale was scheduled to occur.
Experienced Coral Springs Foreclosure Defense Attorneys
Our Coral Springs foreclosure defense attorneys have years of experience and have helped many Coral Springs homeowners retain their homes. In your case, rest assured you are in good hands with our team.
- Practical Options: Our team of Coral Springs foreclosure lawyers will weigh out all of your options after thorough research on your individual case. We will provide expert consultation on what foreclosure solution is best for your specific situation.
- Lender Negotiations: The Coral Springs foreclosure lawyers at Loan Lawyers are fully committed to helping our clients retain their homes and have negotiated with various lenders over. We will work diligently with lenders to come up with a viable solution.
- Loan Modifications: There are a few ways in which the mortgage loan can be modified. The lender can either reduce the amount owed; extend the timeframe in which the homeowner can pay back the loan; or, the interest of the loan can be lowered. Our Florida foreclosure defense lawyers are expert negotiators and have helped many of our clients modify their mortgage loans to provide a feasible means of repayment.
Call Our Foreclosure Defense Attorneys in Coral Springs Today
If your lender is threatening foreclosure, call one of our Fort Lauderdale foreclosure defense lawyers at Loan Lawyers today. We know the defenses available that can help you fight back against foreclosure and keep your home. Call us now at (954) 523-4357 or contact us online to schedule a free review of your case.
