Florida is a judicial foreclosure state. This means that a lender, bank, or homeowners’ association must receive court approval before they can move forward with foreclosing on a home. Lenders must file foreclosures in the circuit court that is in the same location as the property. These cases are heard in the court of equity. A court of equity can consider not just legal defenses, but also principles of fairness, or equity, as well. Due to this, judges in the court of equity can take into consideration any action taken by a lender that is considered unfair.
As you move through the judicial foreclosure process, you have the right to raise defenses that could challenge the foreclosure. If your home has already been scheduled for a foreclosure sale, you should contact a Wilton Manors foreclosure defense lawyer. Our foreclosure defense team understands Florida foreclosure laws and will show you the legal options available to you.
Only Judges Hear Foreclosure Cases
When many people think of going to a foreclosure trial, they sometimes imagine arguing their case in front of a jury. This does not happen in foreclosure cases, as they are heard by a judge alone. After a judge is assigned to the case, they will hear arguments from your lender about why they should be able to foreclose, and they will also hear any defenses you raise. To give you the best chance of success, it is important to work with a Wilton Manors foreclosure defense lawyer.
Proving Unclean Hands as Foreclosure Defense
One common defense used in foreclosure cases is that of unclean hands. During the landmark case of Federal Savings and Loan v. Robert Smith determined that when borrowers can prove their lender had unclean hands, the judge in the case must deny the lender the opportunity to foreclose. Proving unclean hands requires you to show the lender had a role in the reasoning for the foreclosure.
For example, cases in the past have involved lenders informing borrowers that they can pause their mortgage payments for a certain period of time. After the borrower stops making mortgage payments, the lender then starts the foreclosure process. Legally speaking, this is known as tortious interference, which can be raised as a defense in foreclosure cases if it has occurred.
When proving unclean hands, you have the burden to prove that your lender took part in fraudulent or illegal actions. You must also show that you were hurt by these actions. Staying with the example above, you could show that your lender has started the foreclosure process and that you are now in jeopardy of losing your home. You must also show that the fraudulent or illegal act is directly connected to your failure to pay your mortgage.
Proving these facts is time-consuming and must be carefully communicated when contesting a foreclosure. If you hire a Florida foreclosure defense lawyer to review your case, they will be able to investigate if your mortgage lender has participated in any fraudulent or illegal actions.
Failure to Fulfill Lender Obligations
There are certain obligations lenders have to meet before they can foreclose on your home. These are known as conditions precedent. In Florida foreclosures, lenders must inform borrowers of their intent to foreclose using a notice of default. This notice outlines the amount the homeowner must pay to stop the foreclosure from proceeding and informs the homeowner of the lender’s intention to proceed with a foreclosure lawsuit. Lenders must also give homeowners 30 days to bring the loan back into good standing by paying the outstanding amount. When lenders do not fulfill this obligation, or any other condition precedent, it can be used as a defense in a foreclosure case.
The requirement for lenders to inform borrowers of their intent to foreclose is just one of the conditions precedent lenders must fulfill. If this is a possible defense in your case, your lender must then prove that they sent you the proper notice. A Wilton Manors foreclosure defense lawyer can advise on the other conditions of precedent your lender may have failed to fulfill.
Negotiating a Loan Modification with Your Lender
If your lender has started the foreclosure process, or you have missed mortgage payments and suspect they might, you may consider negotiating a loan modification with your lender. If you are successful with a modification, you can change any part of the mortgage loan including the length of the loan, the interest rate, the amount of monthly payments, and even the principal amount owed.
Successfully negotiating a loan modification is not easy for most people. Most homeowners do not have the negotiating experience that is needed when dealing with lenders, which is why we don’t advise handling the lawsuit and negotiation yourself. A Wilton Manors foreclosure defense lawyer can negotiate with your lender on your behalf and help ensure you obtain a favorable outcome.
Chapter 13 Bankruptcy Can Stop Foreclosure in Wilton Manors
You do not always need the approval of your lender to obtain a loan modification. By filing Chapter 13 bankruptcy in Wilton Manors, you can reorganize all of your debt, including your mortgage loan, into a payment plan that is more affordable for you to pay. Repayment plans created in Chapter 13 bankruptcy cases typically last between three and five years. You do not have to repay your entire loan during this time, but only the past due amounts.
Still, it is important to remember that Chapter 13 bankruptcy will not protect any payments that are due after the bankruptcy case is final. As you move through the bankruptcy process, you must ensure you can afford the terms of the repayment plan while also continuing to pay your current mortgage payments.
Immediately after filing Chapter 13 bankruptcy, a bankruptcy judge will issue an automatic stay. This prohibits creditors and debt collectors, including your mortgage loan lender, from contacting you and trying to collect on the debt. In the case of mortgages specifically, it also prohibits lenders from starting any foreclosure action. If the foreclosure process has already started, it is halted until the foreclosure process is over, even if a foreclosure sale was just about to take place.
Call Our Foreclosure Defense Lawyers in Wilton Manors for a Free Consultation
If you believe that your lender is about to start the foreclosure process, or they have already taken legal action, you need to speak to a Wilton Manors foreclosure defense lawyer. At Loan Lawyers, our seasoned attorneys can negotiate with your lender and raise defenses that can help you stay in your home. Call us now at (954) 523-4357 or reach out to us online to schedule a free consultation and to learn more.
