The declining economy and the never-ending debt cycle make it difficult for an average American homeowner to keep up with their mortgage and other loan payments. Due to financial hardships, homeowners are constantly worried about the possibility that their home will be foreclosed by banks. If you find yourself in such a situation, but want to fight back to stay in your home, you should turn to an experienced foreclosure defense attorney for help.
While the best course of action varies from case to case, some types of foreclosure defenses are similar and prove to be effective in many cases. The following are some common foreclosure defenses that can save you from giving up your home:
Failure to Follow State Procedures for Foreclosure
Sometimes, the foreclosing party, i.e. the bank or the lender, doesn’t properly follow the state specific foreclosure procedures. For example, the lender didn’t issue a public notice to notify all the parties involved in the proceedings. In such a case, your foreclosure defense attorney can help you challenge the foreclosure. If you win the case, the court will order the foreclosure party to perform the entire procedure again in order to enforce a foreclosure.
Unjust Lending Practices
You can file a claim against the foreclosing party if they have deceived you, failed to provide complete information, or acted unfairly in any way. Under the Truth In Lending Act (TILA), the lenders must disclose payment schedule, annual percentage rate, and other important information regarding the mortgage. If the lender fails to give out this information, the borrower can challenge the foreclosure.
Military Personnel on Active Duty
The Servicemembers Civil Relief Act (SCRA) provides servicemembers special protections against foreclosure. If your home is being foreclosed while you are on active duty, you can ask the court to provide a postponement of the proceeding in writing, which will be of nine months.
Mistakes/Errors in Mortgage Payments
The federal law requires mortgage loan servicers to apply charges and payments to a mortgage loan as per the 12 U.S. Code § 2605. If they fail to comply with this statute, you can file a claim to stop the foreclosure action. Moreover, if a homeowner can prove that the lender violated the rules associated with mortgage loan servicing, they can prevent the foreclosure by arguing the bank estopped from claiming a mortgage’ default payment.
The Lender cannot Prove the Mortgage’s Ownership
Only the owner of the mortgage – the direct owner or someone representing on owner’s behalf – can enforce a foreclosure action. If your mortgage has been sold or bought by several different banks, investors, and lenders, there is a good chance that the last holder of the mortgage cannot prove who it actually belongs to. The court requires the foreclosing party to produce complete documentation of the mortgage’s ownership, which in such a case becomes quite difficult.
If you have received a notice for foreclosure or feel that you are at a risk of losing your home, you should immediately consult your case with a competent foreclosure defense attorney. Contact the Law Office of Brian Covert at (630) 717-2783 or online to schedule a free consultation to evaluate your legal options. We have offices in Schaumburg, Warrenville, and Naperville.
