Law Office of Mark J. Albrechta

Practicing Preventative Law

Foreclosure Defense

  The worst thing you can do when you are facing foreclosure is to ignore it.  If you are served with a complaint, you need to respond within 20 days of the date you are served.  If you need more time to find a lawyer, you could file, on your own, a written request asking for more time to hire the lawyer to assist you.

  You may have defenses to the foreclosure suit.  But, you will not know unless and until you consult with an attorney who has knowledge and experience in this area.

  Borrowers may wish to have an examination of the total mortgage transaction looking for tortuous conduct and/or contract breaches within the transaction.  If tortious conduct and/or contract breaches are found, you have the option of pursuing claims against the lender for those actions.  To pursue claims agains the lender, you will need to retain a "foreclosure OFFENSE" attorney who will aggressively go after the bank, to settle for these monetary damages or free and clear title to the home.  Beware of "pretender defender" attorneys.  "Pretender defender" attorneys seek only to delay and stall for as long as possible, while being paid monthly for doing so.  In many cases, the attorney delays the inevitable:  the foreclosure of the property and the removal of the homeowner.

 

  Finding an attorney who will actually defend the homeowner is difficult at best. Many of the attorneys and firms who say that they defend foreclosure cases are merely in the business of delaying and stalling the inevitable for as long as they can.  Ultimately, it is up to you as to how you want the case resolved.  The attorney you hire should take the time to educate you about your rights so that you can make an educated decision about the resolution of your case.  A mortgage fraud examination may disclose legal problems with the mortgage contract or the appraisal.  If problems are discovered in your transaction, you must decide whether and to what extent you want to fight the foreclosure.  If you choose to fight, it can get very expensive, and there are no guarantees of success.  But, you need to be told of the defenses and given the opportunity to decide on the course of action you wish to take.

 

  Since Florida is a "deficiency state," the lender could obtain a money judgment against you for the amount it would have gotten paid had you fulfilled all the terms of the note and mortgage less the amount it receives at the foreclosure auction.  That judgment is enforceable against you for 20 years.  That deficiency judgment will adversely affect you for that whole time, and my prevent you from obtaining other loans during that time.

  Obtaining the assistance of an attorney may allow you the time to make other arrangements regarding your loan and your property without having a judgment entered against you.

  Other options that are available to you include:  loan modification, short sale, "short mortgage," and deed-in-lieu of foreclosure.  Any of these options would be better than having a foreclosure judgment entered against you.

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