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.

Defenses, defenses and counterclaims in the affirmative Debt Litigation

What is the difference between an "affirmative defense" and a "counterclaim" and how they relate to what we might call "normal" defense in cases of debt?

The burden of proof

The main key to understanding the differences in the defenses is to remember what lawyers call the "burden of proof." The burden of proof applies to those who have something to prove, given that there are things you can never prove beyond doubt the firmness of the jury or judge must beconvinced. In a civil trial (which are cases of debt), the burden of proof (trial) is replaced by "a preponderance." Consider a set of stairs with your evidence and proof to the other side of the balance between them. The "preponderance" is just enough to tip the balance one way or another. It is a difficult burden, but the jury believes that, instead of the other side. And the links go to the person who has the burden of proof.

"Simple"Fenders

Let's start with "simple" argument. Remember that the plaintiff has the burden of proving its case against him. It must demonstrate that (1) owe money (2) we owe to the right person, (3) who have never, and (4) how much I owe. Simply put, if you are sued by a credit card debt age of $ 500, must prove that: (1) is used for loans or credit card to buy things, (2)purchased or otherwise acquired the right to go after money, (3) never paid the money to the original creditor or other debts, and (4) the total amount due is $ 500. If you can not submit sufficient evidence in one or more of these problems, we must win. A defense of the "flat" is only in your response to the claim denying any or all of these elements in the case of the applicant. Once you dispute the debt collector chargesagainst you, to bear the burden of proof on all charges in dispute.

Affirmative Defenses

Suppose you want to argue that even if it was the credit card, another person fraudulently to support the debt. This could be a defense "yes." An affirmative defense is something that, if true, would have prevented the debt claim against you, even if all allegations of a petition by the applicant are true. The party claimingaffirmative defense the burden of proof on it.

Counterclaims

A "counterclaim" is a completely different animal. The counterclaim asserts a claim against the party denounced him. For its counterclaim, which are basically treated as an actor, and if you win, you should get the money. Defenses simply because the money you save on the other side. It will support the burden of proof for the counterclaim, and on the other side can present defenses and affirmative defenses. Acounterclaim does not defeat his claim, although in some cases, such as consumer fraud, counterclaims can double your defenses. In the context of debt collection, this is not usually the case. Counterclaim to the debt collector will not be harassed a defense against your claim that you owe them money. It could, however, be a most precious right, however, and could easily be worth more than the money demand against him.

A possible exceptioncould be the rule for "verification." The Fair Debt Collection Practices Act (FDCPA) requires that if the debt collector is required to validate a debt, you must do so within 30 days and should have no collection activity until they have done. In some cases, defendants have used the fact that the collector for validation (after only one request) as a defense to the case. Obviously it would be very temporary andcould be resolved easily.

Similarly, claiming that the applicant had not submitted a previous request for the money (but only demanded from nothing) is just a technical defense of a credit agreement, as the courts usually sufficient to treat the request as demand. Moreover, in the field of debt litigation, if the request is the first time I've heard that the collector would still have the right to request verification. Exactly how that works as an affirmative defenseand affects the time the case was highly controversial and remains unclear. Again, defense would probably be a very temporary, although no written notice of your right of inspection may be a violation of the FDCPA.

Conclusion

If you are responding to a lawsuit filed by a debt collector, you will need to consider the audience of the plain, all possible affirmative defenses, counterclaims and questions. All of them are independent and mustbe invoked (suspects) and has been shown separately.

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.