Affirmative Defenses to Foreclosure Lawsuits in Florida

Under Florida law, a homeowner's answer to a foreclosure complaint may include the affirmative defense that the plaintiff lacks legal standing to obtain a judgment of foreclosure.

Because many plaintiffs have no direct relationship with the original lender, they are sometimes unable to produce the original loan and assignment documents that are required of plaintiffs who request judgments of foreclosure. Because many loans were frequently bought and sold by various loan servicers during the past several years, the loan and assignment documents have, in some instances, been misplaced.  This presents an opportunity for homeowners who are trying to stop a foreclosure sale.

The following is an example of how the "standing" defense may be asserted as an affirmative defense in a homeowners answer to foreclosure:

Plaintiff lacks standing to commence this action. My original mortgage was with _______ . This is not the same entity that commenced the instant action. Plaintiff has failed to provide the original, or certified copies of, the note and mortgage and all relevant assignment(s). In Florida, only the owner and holder of the mortgage and the note have standing to commence a foreclosure action.
 
The "legal standing" defense is just one of several affirmative defenses that homeowners should consider when responding to a foreclosure complaint. Other affirmative defenses that a homeowner should consider include; (a) violation of the Truth in Lending Act; (b) Fair Debt Collection Practices Act violations; (c) incorrect notice or service of process; and (d) lost payments.

A homeowner should carefully review the lender's complaint.  Under the Florida Rules of Civil Procedure, a plaintiff seeking a judgment of foreclosure is required to attach a copy of the Note to its complaint.  A  Florida homeowner who is served with a foreclosure complaint without a a copy of the Note should assert this as a defense. This may stop the foreclosure action until the lender can supply a copy of the note. In foreclosure actions, any delay in the proceedings can be beneficial because it gives the homeowner an additional opportunity to find alternatives to foreclosure, including a short sale or loan modification. 

In virtually all circumstances, it is beneficial for a homeowner to file an answer when served with a foreclosure summons and complaint.  Failing to answer a foreclosure complaint may result in the forfeiture of the legal defenses that are described above.

What you should know about the Federal Fair Debt Collection Practices Act.: An article from: Florida Bar Journal best price !

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This digital document is an article from Florida Bar Journal, published by Florida Bar on June 1, 1997. The length of the article is 3324 words. The page length shown above is based on a typical 300-word page. The article is delivered in HTML format and is available in your Amazon.com Digital Locker immediately after purchase. You can view it with any web browser.

Citation Details
Title: What you should know about the Federal Fair Debt Collection Practices Act.
Author: Barbara A. Sinsley
Publication:Florida Bar Journal (Magazine/Journal)
Date: June 1, 1997
Publisher: Florida Bar
Volume: 71 Issue: n6 Page: 70(5)

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affirmative defense in foreclosure Cause Florida

Under Florida law, the response of a house in a foreclosure complaint may include the affirmative defense that the plaintiff is not entitled to obtain a decree of foreclosure.

Since many players have no direct relationship with the original creditor, they are sometimes able to produce the original loan documents and the necessary allocation of applicants seeking reviews of foreclosure. Because many loans were often bought and sold severalloan servicers in recent years, the loan documents and assignment are in some cases, are misplaced. This is an opportunity for homeowners who are trying to stop the foreclosure sale.

The following is an example of how the defense "standing" may be invoked as a defense in an affirmative answer to homeowners in foreclosure:

The plaintiff has no standing to bring this action. My original mortgage was with _______. This is not the sameentity that has an immediate action. The applicant has not provided original or certified copies, the note and mortgage and all the prizes for (s). In Florida, only the owner and holder of the mortgage and note are entitled to start a foreclosure action.

The "right foot" defense is just one of several affirmative defenses that homeowners should consider when responding to a claim of foreclosure. Other affirmative defenses that a homeownershould be considered are: (a) violation of the Truth in Lending Act, (b) Fair Debt Collection Practices Act violations, (c) misreporting or service of process, and (d) loss of payments.

An owner should carefully consider the request of the creditor. Under the Florida Rules of Civil Procedure, the Plaintiff seeks a decree of foreclosure must attach a copy of the note of your complaint. At home in Floridaserved with a complaint, but are not limited to a copy of the note must rely on this as a defense. This can stop the foreclosure action until the creditor may provide a copy of the note. In enforcement actions, any delay in the procedure may be useful as it gives the owner an additional opportunity to find alternatives to closing, including a short sale or loan modification.

In most circumstances, it is advantageous for a houseresponse file when served with a summons and complaint for foreclosure. Failing to answer a foreclosure complaint may lead to revocation of legal defenses described above.