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Pregunte sobre nuestra guarantia (nuestra confiansa en nuestros servicios asegura que si usted pierde su casa dentro de cierto periodo de tiempo, nosotros te devolvemos su dinero!)
Call for a free 30-minute consultation consisting of a case evaluation and strategic overview of how to defend your specific case
Llame para una consulta gratis consistiendo de una evaluacion de su caso y la estrategia necesaria para defender su casa basada en las circumstancias especificas de su caso
Call (786) 423-8144 – Don’t let anyone take your home without a fight!
Mortgage Foreclosure Lawsuits
A mortgage foreclosure is the remedy available to the lender when a borrower defaults on a loan secured by a mortgage. When a borrower signs a promissory note (the instrument documenting a borrower’s promise to repay a lender) in a real estate transaction involving a home, that promissory note is secured by a mortgage. In other words, the promissory note outlines the debt and promise to repay the lender, while the mortgage secures that note in the event the borrower defaults, allowing the lender to foreclose the home and have it sold at auction. The lender is then entitled to the proceeds of that auction sale up to the amount that is owed to the lender, any surplus belongs to the borrower. However, in todays upside down real estate market, odds are the home will sell at auction for less than what is owed to the lender. In that event, the lender maintains the right to sue the borrower for the remaining balance and obtain what is called a deficiency judgment.
Up until the home is sold at auction and a certificate of title passes to the new purchaser, the home is still owned solely by the individuals on title to the property, usually the borrower(s). Like any other lawsuit, the lender needs to prove their case against the borrower and the borrower is entitled to defend against the action and obligate the lender to prove its case in its entirety. In recent years, the mortgage industry has thrived by allowing mortgages to be purchased and sold in the secondary mortgage market. As a result, a mortgage may transfer from one lender to another or may even be pooled into a securitized trust containing numerous mortgage loans. This is why, many times, the Plaintiff in a mortgage foreclosure action is not the original mortgage lender. Consequently, if a Plaintiff is not the original mortgage lender on the promissory note, they have to prove their ownership rights to the promissory note and their ability to foreclose on your home. Furthermore, they have to prove that each and every transfer was correctly and timely made. Recent investigations have revealed thousands of instances of fraudulent transfers and improper foreclosure actions. Not only do Plaintiff’s have to prove their rights to sue on the promissory note that was originally executed, but they have to prove that they, along with previous holders of the promissory note (if the promissory note was transferred), abided by state and federal consumer protection and civil procedure rules and laws in order to be allowed to foreclose on a borrower’s home.
There are also numerous other defenses available to homeowners, which can be used on their own or in conjunction with each other to help defend your case. Although too detailed to explain in depth here, you can find a list of some other possible defenses below.
This is why it is imperative that a borrower obtains legal representation to defend his/her rights in a foreclosure action. If a borrower fails to raise the proper affirmative defenses and/or counterclaims against the Plaintiff, the Plaintiff will not have to prove any of these issues and will be able to sell your home in a matter of months. Recent efforts to unclog court dockets have caused foreclosure actions to move along much more rapidly than in the past—a couple of years ago a foreclosure lawsuit could have lasted years, today, a borrower may lose his home in no time at all.
Once you are served with a foreclosure complaint, the clock starts ticking. Generally, you are given 20 days to respond to your complaint and present all these defenses. If you fail to respond, a default judgment will be entered against you and you will no longer be able to defend against your case unless you manage to appear before the judge and get the default judgment vacated.
Effective legal representation is paramount for borrowers. By properly defending your case and setting up roadblocks to stall the Plaintiff’s efforts to sell your home, the Plaintiff will be much more inclined to modify your mortgage or find some other alternative to foreclosure. The longer the foreclosure action is pending and the stronger the defenses presented against the Plaintiff are, the more money it is costing the Plaintiff and the greater the likelihood that the Plaintiff will work out a resolution with you.
A solid defense to a foreclosure action will also buy the borrower more time in situations where the borrower may be struggling economically. Once a struggling borrower starts to increase his/her income, the greater the odds that the borrower will qualify for a mortgage modification. Also, due to the income requirements associated with filing a Chapter 13 bankruptcy to save your home, a proper foreclosure defense can buy the borrower with enough time to meet the income demands associated with a Chapter 13 bankruptcy repayment plan. In a worst-case scenario, where the home is lost to a foreclosure auction, a strong foreclosure defense also results in a more profitable outcome for the borrower. A strong defense to a foreclosure action can delay a foreclosure lawsuit for several months and even years. Because the borrower is no longer making mortgage payments during that time, the borrower has the luxury of saving his money for an extended period of time while the lawsuit is pending. For example, if a borrower can save $1,000 a month because he is not paying his mortgage and he fails to properly defend against the foreclosure action and the home is sold at auction in four months, the borrower was only able to save up $4,000. On the other hand, if the borrower aggressively defends the action and the home is lost in fifteen months, the borrower was able to save $15,000! Even when the home is lost, it is almost always more profitable to hire an attorney to represent your rights.
Call for a free case evaluation and to discuss the right strategy to defend your home. Ask about our money-back guarantee. (786) 423-8144
The Law Offices of Francisco Cieza, P.A., will represent you in defending a foreclosure action filed against you while striving to obtain a mortgage loan modification that suits your financial situation. If you are currently not in foreclosure but you have defaulted on your loan or you feel a default is imminent, The Law Offices of Francisco Cieza, P.A., can help you negotiate a loan modification agreement you can afford.
There are numerous alternatives to foreclosure:
- Loan Modification
- Repayment Plan
- Settlement Agreement
- Short Pay-Off
- Short Sale
- Deed in Lieu
- Chapter 13 Bankruptcy
Do not simply walk away from your home because you were unable to make your mortgage payments. Today’s difficult economy has placed many homeowners in difficult financial positions. You have a right to fight for your home and the Law Offices of Francisco Cieza, P.A. is dedicated to aggressively fight for you and your home.
You may have several defenses available to you if you are facing a foreclosure including:
- Abusive Lending Practices
- Non-Responsive Mortgage Servicers
- Federal Statute Violations
- Failure to Prove Ownership of the Debt
- Failure to Abide by National Servicing Guidelines
- Failure to Abide by the Florida Rules of Civil Procedure
- Untimely Foreclosure Actions
- Wrongful Foreclosure Actions
- Escrow Accounting Errors
- And More…