Foreclosure Defense

Matthew Mazur, P.A. represents clients facing foreclosure proceedings. In many cases, it is possible to work out new financing arrangements, counsel on the sale of property or otherwise manage a foreclosure in a manner most advantageous to the homeowner without litigation. In some cases, a Chapter 13 bankruptcy may be utilized to prevent the foreclosure of a home.

Most homeowners do not realize that a foreclosure can be defended in Florida. The fact that you can defend against a foreclosure proceeding does not mean that you will prevail and not have to pay your back mortgage payments. However, if you have equity in your home it may be protected by such a defense and you may not be subjected to a fast foreclosure,  you may stand a better chance at economic survival.

If your lender has not received their monthly payments when due, you have defaulted on the mortgage and note. That does not mean that you must leave the property immediately, as is the case when a person fails to pay their rent.

A continuing default on a mortgage gives the lender a right to seek the judicial sale of your Florida residence by bringing a foreclosure action under Chapter 702 of the Florida Statutes. In almost all instances you are in the wrong not because you wanted to stop paying on the mortgage but simply because events in your life resulted in a financial inability to pay on your mortgage. Although you have defaulted and are in the "wrong" that does not mean that you have to rollover and abandon your home or just wait for the inevitable.

Our Foreclosure Defense Attorneys may be able to use Florida's foreclosure laws to protect your home when you face foreclosure. We strongly advise you to beware of "Non-Lawyer assistance" programs and or companies which cannot represent you and protect you in  a court of law against a foreclosure lawsuit.

Do you know the full extent of your legal rights? Have you received notice that foreclosure proceedings will begin on your home? Matthew Mazur, P.A. can explain your legal rights and options and put those rights to work for you. Contact us today and find out how you may stop home foreclosure with the foreclosure laws of Florida. 

You must act quickly to avoid foreclosure on your home. In most cases you only have 20 days to respond to the summons and complaint. 

We know that financial downturns can be overwhelming and we provide alternatives in this difficult time.

The following can be relevant issue in determining if you have defenses to a mortgage foreclosure. These defenses may be raised even if you have fallen behind on your mortgage payments.

1. Due Process:

Pursuant to procedural due process, you are entitled to full discovery and may demand the production by your lender of all documents and information in their possession and control which may affect your rights.

2. Rescission:

You may have legal rights pursuant to the Real Estate Settlement and Procedures Act. If you refinanced your home and your current mortgage was executed less than three years ago, you may still have the right to rescind the loan and cancel finance charges if your lender failed to provide your with timely disclosures.

3. Lost Notes:

Most foreclosure complaints allege that the lender lost the note. Often the lenders attorney fails to attach a copy of the mortgage note that you signed. The Florida Rules of Civil procedure require that "All ..., notes, ... or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading." The proper assertion of this defense may stop the foreclosure until the lender can supply a copy of your mortgage note.

4. Mortgage Electronic Registration Systems Inc.:

Often the foreclosure against you is brought in the name of MERS. Generally you have never heard of MERS, had contact with them and although MERS is seeking to foreclose your mortgage and alleges it is the owner of the note and mortgage, MERS in fact generally holds the mortgage as a nominee (whatever that is) for the true Lender who in fact holds and owns the Mortgage Note which you signed. The relationship of these entities may materially affect your rights and may be asserted by a foreclosure defense attorney.

5. Force-placed Insurance:

Where lenders purchase insurance in the mistaken belief that the homeowners have let their policy lapse. If the homeowners have their own homeowner’s insurance policy, they should not be paying for the lenders insurance.

6. Lost Payments:

Sometimes payments are not correctly applied to a buyer’s account.

7. Failure to Accelerate the Note:

The loan cannot be foreclosed until the loan is accelerated, if required, and notice must be sent to the buyer.

8. FHA-Insured Loans:

FHA loans have special servicing requirements, including a counseling notice mailed to the mortgagor within 45 days of default, a face-to-face meeting with the borrower within 90 days of default, and a notice of available counseling. Failure to comply with these rules is an affirmative defense.

9. Accepting Payments After Foreclosure:

There may be a defense to the foreclosure if the lender accepts payments after filing foreclosure, and the mortgagor is not in bankruptcy.

10. Truth-in-Lending and HOEPA Violations:

Truth-in-Lending and HOEPA violations may be raised as a defense. However, the most powerful remedy available -- i.e. voiding the mortgage is only available within three years of execution of the mortgage (if its non-purchase mortgage and required disclosures were not delivered to you). An attorney must review the original disclosure documents to determine if there was a violation, but failure to disclose material terms in writing, or high interest rates on a non-purchase mortgage, almost always warrant careful investigation.

11. Fraud, Abuse, Collusion:

Where the loan displays fraud, abuse or collusion, these may be possible defenses to foreclosure.

12. Fair Debt Collection Practices Act:

Attorneys who file foreclosure papers are debt collectors and must comply with the FDCPA. While not a defense per se to the foreclosure action, it does give rise to a statutory and actual damages claim.

13. Failure to Attach Note and Mortgage to Complaint:

The complaint is subject to a motion to dismiss if the note and mortgage are not attached to the complaint.

14. Incorrect Notice or Service:

Service by publication is only valid after an attempt at personal service. In order to be legally valid all information in the notice must be accurate.

If you have any questions or would like to retain us to represent you, please contact us.