A Homeowner's Defense Against the Foreclosure Lawsuit

This is the second article in a series examining various general issues of relating to foreclosures and the legal environment. Homeowners often avoid going to the initial foreclosure default hearing, which makes it very easy on the bank to win a case and proceed from foreclosure to eviction. Being aware of some of these legal issues, though, can encourage foreclosure victims to make it to the hearing and present their side of the story, which may result in a better resolution to the problem than a sheriff sale. Although these issues may not be come up at all, or the homeowners will find some solution outside of the courts, being aware of these aspects of the foreclosure process can allow them to put together more backup plans if the bank does pursue the default through the county court system.

The previous article discussed what elements of a case that the lender would need to prove in order to win a judgment against the homeowners. These included proving there was a legally binding contract, the lender performed as agreed under the terms of the contract, the homeowners breached some part of the agreement, and the breach caused the mortgage company to suffer actual damages. The lender must prove all of these elements in order to win; if they can not prove one of them, there is no case. For example, if the bank shows everything else but can not prove that they own the paperwork for the loan, due to it being passed around from lender to lender, sold to hedge funds, investment firms, and then sold to the foreclosing bank, but the loan papers are not clear, there may be no judgment awarded.

Of course, if the homeowners do not show up to the foreclosure hearing, the bank will often be awarded a default judgment, with the judge simply assuming that the bank's case is sound. If the homeowners are made aware of their right to defend against the lawsuit, and simply waive that right by not answering the complaint or showing up to court, the judge will assume that silence equals consent and the lender will win.

But, for homeowners making their own defense or hiring an attorney of their own to defend them, it is important to be aware of certain techniques that can be used to answer the foreclosure. The first step should be for the homeowners to identify in the lender's complaint the specific legal claims being made. Obviously, the most common one in a foreclosure lawsuit will be breach of contract, specifically in regards to the mortgage loan. But without reading the complaint, homeowners can not be sure if any other claims are made, or if the bank has failed to make any claim at all. Identifying the claim will help the foreclosure victims begin to understand exactly what they are defending against.

Then, the homeowners may want to figure out the exact elements of each claim made against them. My first article on this subject explains the specific elements that would generally need to be proved in a breach of contract case, although every case will be somewhat unique. But, as stated earlier, the bank will need to show that a legally binding contract existed between it and the homeowners, that the lender did everything as agreed, the homeowners failed to perform as agreed and breached the contract, and the lender suffered actual damages as a result. Although this may seem quite simple in theory, mortgage companies (and all creditors) are notoriously bad at record keeping and attorneys are not always known for competence when their shaky legal claims are challenged. Homeowners who can identify exactly what needs to be proven can often easily poke holes in the case and create a sense of doubt over one or more element, depending on how thorough the bank has been.

The next step may be for the foreclosure victims to identify each fact that the bank may use to prove their case. Some of these items may be the original mortgage paperwork, any assignments of mortgage showing who owns the loan at the present time, mortgage payment records showing the missed payments, and so on. Because the lender is qualified as a debt collector under the Fair Debt Collection Practices Act, it is quite reasonable for homeowners to request specific validation of the debt. If the bank has not kept very clear transfer records, or there is doubt of who exactly owns the loan, there may be no case against the homeowners. For example, suppose the bank can not clearly show the loan was transferred to it. The homeowners may be in danger of being sued by a different lender who actually does own the paperwork, or possibly they have been making on time payments to a different lender who has the right to collect. The bank that can not show it owns the loan can not prove it has the legal right to try and collect payment for the loan.

This is one reason why homeowners may want to put together documents that they have received that can disprove the lender's claims, as well as evidence that proves the claims the homeowners will make. As long as any one element of the mortgage company's lawsuit is defeated, there can be no judgment against the homeowners for foreclosure. If the bank's transfer documents are far different from the foreclosure victims' own information, there may be doubt that a legally binding contract exists between the bank and owners. Although this may just require more documents to be produced by the bank, rather than the whole case being thrown out, it will show the lender and their attorneys that not every homeowner is willing to be pushed around and intimidated by an unfamiliar court system.

Admittedly, it will be very difficult for homeowners to get the foreclosure lawsuit completely thrown out of court, leaving the bank with no other alternative than to write off the loan or start over and try to prove their case some other way. This happens in only a very small number of cases. But, homeowners with some knowledge of the foreclosure process in the court system, and the general theories of what the bank must do and how it can be defeated, will be in a much stronger position to come to a resolution that does not involve losing the home. Judges can order the parties to consider settlement ideas through mediation or arbitration, but homeowners too fearful even to show up at court will lose their opportunities for such alternatives to foreclosure. Even when homeowners are represented by an attorney, having a background understanding of the legal process will make the experience easier to comprehend.

No Defense | www.budhibbs.com

Consumer Advocate Bud Hibbs and Attorney Jerry Jarzombek sit down with Ernie Brown and discuss the myth that you have no protection from threatening collection agencies. For help with collection issues and more check out www.budhibbs.com or email Bud at budhibbs@budhibbs.com

Debt Collection Strategies - bad defense Collection

The current economic situation has led to an increase in debt due and unpaid. This includes commercial and individual debt. Consequently, there are many people who seek to exploit the situation. The artists only add to the misery caused by the outstanding debt of both parties. No doubt that if you or your company has incurred debts, then they are legally obligated to pay. Strategies debt employeestwo collections are regulated by federal and state laws.

Act Fair Debt Collection provides a significant amount of protection from abuse by debt collectors collectors if obey the law. It's really common for collectors to stretch the interpretation and in many cases violate the law. And "wise for anyone who has been contacted by a collector spend the time to read the Fair Debt CollectionsAct. You will receive a lot of basic information such as strategies and debt collection practices are allowed and which not. Internet has a wealth of information on debt and debt collection.

Internet has a lot of information very seriously which can lead to serious problems for many borrowers. Bad advice abounds on how to defend against debt collection strategies. Some of these baddefenses are:

1. Debt Limitation. The fact that a lender has made ​​an effort harvest for several years does not mean you can not collect the debt. The creditor may sue for the total amount of debt.

2. The debtor has never had any contact you're trying to collect the debt or legal actions. I have no agreement with the company so that the borrower does not repay the debt.

3.The creditor can not sue because of the lack of a signed contract.

4. The creditor may not seek legal action if the debtor is making payments.

5. The creditor has written the debt to be able to sue in court. This is especially true when it comes to credit cards that is transferable.

6. A divorce can my ex-wife ordered to pay all my debts. Unfortunately, it remains liable for the debt and dependent on you to get your spouse to pay the debt.

7. Debt collection online is illegal.

None of these have no legal defense against the strategies and debt collection practices.

The conclusion is that the best way to defend against a creditor to pay the debt or seek professional legal help. The strategies used by debt collection companies are generally very effective.Attorneys collection> debt are able to provide a credible defense against collection efforts.

Debt Collection Strategies - bad defense Collection

The current economic situation has led to an increase in debt due and unpaid. This includes commercial and individual debt. Consequently, there are many people who seek to exploit the situation. The artists only add to the misery caused by the outstanding debt of both parties. No doubt that if you or your company has incurred debts, then they are legally obligated to pay. Strategies debt employeestwo collections are regulated by federal and state laws.

Act Fair Debt Collection provides a significant amount of protection from abuse by debt collectors collectors if obey the law. It's really common for collectors to stretch the interpretation and in many cases violate the law. And "wise for anyone who has been contacted by a collector spend the time to read the Fair Debt CollectionsAct. You will receive a lot of basic information such as strategies and debt collection practices are allowed and which not. Internet has a wealth of information on debt and debt collection.

Internet has a lot of information very seriously which can lead to serious problems for many borrowers. Bad advice abounds on how to defend against debt collection strategies. Some of these baddefenses are:

1. Debt Limitation. The fact that a lender has made ​​an effort harvest for several years does not mean you can not collect the debt. The creditor may sue for the total amount of debt.

2. The debtor has never had any contact you're trying to collect the debt or legal actions. I have no agreement with the company so that the borrower does not repay the debt.

3.The creditor can not sue because of the lack of a signed contract.

4. The creditor may not seek legal action if the debtor is making payments.

5. The creditor has written the debt to be able to sue in court. This is especially true when it comes to credit cards that is transferable.

6. A divorce can my ex-wife ordered to pay all my debts. Unfortunately, it remains liable for the debt and dependent on you to get your spouse to pay the debt.

7. Debt collection online is illegal.

None of these have no legal defense against the strategies and debt collection practices.

The conclusion is that the best way to defend against a creditor to pay the debt or seek professional legal help. The strategies used by debt collection companies are generally very effective.Attorneys collection> debt are able to provide a credible defense against collection efforts.

Defense demands for credit cards

If you are or not the media about the U.S. economy in decline, one thing is sure, debt collectors are actively filing lawsuits to collect debts. A large collection firm based in Atlanta said the file from an average of 279 cases per day of collection. A cause is often the last effort in the attempt by creditors to collect a debt. If the library is often illegal and harassing calls were not enough, once a person is suedthe reality of the situation was realized. However, the defendant, all hope is lost. By the time the credit card company or other creditor file the case, may be too late to legally collect the debt, if properly protected. Often with the assistance of an attorney a lawsuit to collect a debt can be defended, negotiated, or won the right for the accused. Before you start to feel sorry for the credit card company, remember, are the samecompany that offers an interest rate of 6.9% and when you were a day late on a payment the interest rate rose to 24.9%.

Go to the defense of the claim:

First, "the process must answer." A collection law firm I know is set directly to "Mr. default" get caller ID. Mr. default is good for a collection attorney, but also tells a story. Once a lawsuit is filed, the name of the game for debtcollector is the default procedure. A default ruling is the result of a case if the defendant does not file a timely response. default judgments are important to collectors, since it means that it is not necessary to prove that you owe money, and what is due, mainly, and it is a secret agent of the credit card company or other creditor may be in court.

Once a decision is entered by default, all possible defenses to the maximum are lost and do not have ago to court to prove the debt. Next "file always respond" unless you want to visit from Mr. Default. However, be careful. In some jurisdictions, all affirmative defenses the defendant must be filed at the time of the original response is filed with the court or the defenses are lost forever. An affirmative defense basically tells the court, yes, I need the money, but still win the case legally so. . .. Feeling bad for the creditor, see 24.9%above.

What type or defenses are common in cases of debt you ask? The most common are the statute of limitations, the statute of frauds, waiver, estoppel improper plaintiff, defendant inappropriate valid debt transfer, violation of bankruptcy discharge, and violation of the Fair Practices Act Debt collection is not really a last defense, but it works well. Of course, most non-lawyers who have some difficultydetermine what defenses are available in a particular case.

If you are in high demand should consult a lawyer about your case collection.

Using the FDCPA in a Foreclosure Lawsuit Defense

The Fair Debt Collection Practices Act (FDCPA) is a federal law that is designed to protect consumers of credit from predatory actions of debt collectors which are pursuing a debt. It provides various protections for borrowers and puts restrictions and limitations on what actions collection agencies may engage in.

When a lender or law firm violates the Fair Debt Collection Practices Act, homeowners may mention these violations in their foreclosure lawsuit defense. Although the Act may not apply in every situation, many mortgages have been sold to third parties, investors, other lenders, and servicing companies, under the appropriate circumstances, and the law would come into play.

Disclosure notice guidelines, dispute procedures, and even stopping collection calls on a debt are covered by the law. The law also allows credit consumers to initiate lawsuits directly against a debt collector in order to obtain monetary damages for violations of the FDCPA, and it can be surprisingly simple for collectors to violate the Act.

When a mortgage goes into default, the current owner of the loan, however, will not be considered a collection agency when it is pursuing collection on its own debt. It must use its own official business name and must not engage primarily in the business of collecting debts. In the case of the mortgage lending business over the past decade, a large number of loans are transferred to a new owner once they go into default.

The FDCPA applies when a mortgage loan is sold or transferred and another collector begins debt collection attempts in the case of foreclosure. It is important for borrowers to keep in mind, though, that if the lender before the default holds onto the loan, the FDCPA does not apply. But if the bank transfers the loan to another company, the law will apply to the new owner.

Once the lender or servicing company changes after default, though, the new company which purchases the debt counts as a collection agency and falls under the Fair Debt Collection Practices Act. Any law office that the lender hires to pursue the debt or bring the foreclosure paperwork in the county court system must also follow the FDCPA and may be held responsible for any failures.

Homeowners have a number of protections under this law. If they inform the debt collector (or lender or law firm) in writing of their desire not to be called regarding the debt, any further communication is a violation of the Act. As well, lawyer fees that are charged to an account that are not specifically authorized in the original documents is a violation of the Act.

The FDCPA also outlines violations due to harassment, abuse of borrowers, misleading representations, and debt validation, among other provisions. Other rights protected under the Act can be found by reading the Act itself or consulting with an attorney familiar with the law in detail. There are also many websites that go into further detail about this particular federal law.

Each violation of the Act may cause liability on the part of the debt collector for any actual damage suffered by the borrowers, $1,000 per offense, and costs of any action to defend the foreclosure lawsuit, initiate a foreclosure lawsuit, and attorneys fees. In effect, there are numerous ways to violate the law, and many collection agencies do not care enough about it to follow it as outlined.

When fighting back against a foreclosure complaint, homeowners may want to use violations of the FDCPA (and they may be amazingly easy to discover) to offset the judgment the bank is seeking. Violations may be included as counterclaims in answering a complaint. The law firm retained by the mortgage company also counts as a collection agency and may be brought into the lawsuit for its own violations of the Act.

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.