If you are facing mortgage foreclosure, you need to understand your obligations as well as those of your mortgage company. Your defenses against a foreclosure will focus on the mortgage company's failure to comply with its obligations.
Asserting your defenses will require the services of a real estate lawyer with a broad experience with all aspects of real property law and foreclosure rules and regulations.
What Rights Does Your Mortgage Company Have?
When you bought your home, you signed two documents with the guidance of a real estate lawyer. They stated your obligations and gave the lender two separate legal interests.
One was a promissory note which set forth your obligation to pay off the debt. The note did not convey to the lender any property interest in your home. It simply gave the lender the contract rights of a creditor to sue you and get a judgment if you default.
The other was a mortgage agreement. By the mortgage, you effectively convey to the lender an inchoate property interest (a security interest) in your home that becomes fully effective if you default under the note. In the event of your note default, the lender can take ownership and possession of your home. They can then sell it to pay off the note.
Judicial vs Nonjudicial Foreclosure
Different states have different laws governing the lender's rights. All states have legal rights to protect the interests of lenders. But they differ concerning how a lender can enforce its rights.
A lender enforces its rights through the remedy of foreclosure. That is, they can take possession of your home and force a conveyance of title to give the bank ownership of your home. They can then sell it in a foreclosure sale.
The foreclosing lender still has its contractual rights under the promissory note. If the proceeds of a foreclosure sale are not sufficient to pay off the debt deficiency, the bank can sue you to get a judgment that they can, within limitations, enforce by collection by garnishing your wages or attaching your other assets.
A major distinction among states is the procedure a lender must follow to enforce its rights under the mortgage (i.e., foreclosure).
Florida is a judicial foreclosure state that requires the lender to sue you in court and get a judgment before proceeding to take possession of your home.
Some states are non-judicial foreclosure jurisdictions, most of which also provide for judicial foreclosure. Judicial foreclosures are rarely pursued in those states. Non-judicial foreclosure is enabled by a "power-of-sale" provision in the mortgage agreement (i.e., deed of trust). The power of sale provision sets forth a procedure for giving notice of default and notice of the foreclosure sale and conveyance of title.
Defenses Against Judicial Foreclosure
A lender seeking to foreclose on your home must file a petition with the circuit court where your home is located. As soon as you are served with a petition, you should contact a mortgage foreclosure defense attorney.
The circuit court has what is called "equity jurisdiction, which means that the court can consider the fairness or unfairness of the lender's actions and conduct in addition to legal and procedural defenses.
Equity courts consider the doctrine of "unclean hands." That is, the bank can't petition the court for a remedy if they don't come to the court with clean hands. For example, a foreclosure will be denied if the bank tortuously interfered with the borrowers' attempts to comply or otherwise abused its rights under the note or mortgage.
Proving unclean hands requires you to prove fraudulent or illegal conduct. Oppressive or illegal collection practices also are considered unclean hands. For decisive proof, you must show that the lender's conduct harmed you.
Lender Procedural Violations of Omissions
A foreclosure judgment can be denied if the lender does not follow the rules. The mortgage agreement, as well as statutes, require the lender to follow specific procedures during the life of the promissory note as well as upon the enforcement of foreclosure rights under the mortgage. In particular, definitive notice requirements are established by the terms of the mortgage as well as the statute.
Remedies After Foreclosure Sale
If the circuit court grants your lender a judgment that approves the foreclosure sale, the foreclosure sale must follow specific procedures. For example, they must give notice to all interested parties, including parties who have a subordinate lien on your property. If the lender does not comply with those procedures, you can file an injunction to overturn the sale.
Even if the bank follows its required procedures, there might be irregularities in the sale process that give you the right to enjoin and overturn the sale.
As a last resort, you have the option of declaring bankruptcy under Chapter 13 of the U.S. Bankruptcy Law. A bankruptcy petition will impose an automatic stay that prevents any collection action, including a foreclosure sale.
Such automatic stay might also provide grounds for revoking any foreclosure sale. You would need the advice and filing services of an experienced bankruptcy lawyer.
We at Benson Mucci & Weiss are real estate lawyers here to help with all aspects of real estate law from the purchase of your home through your entire period of ownership to an eventual sale. God forbid we are also here to help deal with the unfortunate default under your mortgage note. We are experienced mortgage foreclosure defense attorneys. We can work with your lender to forestall the complexities of a foreclosure action. As soon as you receive a notice of default, or if you anticipate one, contact us for assistance.