Defenses to Florida Foreclosure Lawsuit
If you have been sued in a foreclosure action (meaning you have been served with a summons and foreclosure complaint), or are threatened with a foreclosure lawsuit, Urban Thier & Federer, P.A. can represent and defend you and your rights. From the filing of the foreclosure lawsuit complaint to the time that the foreclosure case reaches the final judgment stage can take up to one or two years and, in some cases, even longer. During that time you can usually remain in your home while the lawsuit is pending.
As part of this law firm’s foreclosure defense legal services, we will review your specific mortgage documents and your particular circumstances. We will raise, as we deem appropriate for your case, various defenses to the foreclosure action. Such defenses may include, but are not limited to:
The plaintiff’s lack of standing, the plaintiff’s failure to post a non-resident cost bond, the plaintiff’s failure to attach to the foreclosure lawsuit complaint required mortgage and/or promissory note documents, the lender’s failure to provide required disclosures at the time you closed on your real estate purchase, and the lender’s and/or plaintiff’s failure to comply with various other state and federal laws including the Fair Debt Collection Practices Act, the Truth In Lending Act (TILA), and other laws enacted to protect purchasers of real property.
Many foreclosure cases are filed naming as the plaintiff a business or other entity that is not the lender or mortgagor of the property described on the mortgage. If you fail to raise this issue to the Court, then you could end up being liable to the named plaintiff and the bank, or other entity (the “real party in interest”), that lent you the money and is named in your mortgage. Many plaintiffs do not have the required paperwork because of careless record keeping, robo-signing and/or the fact that they are the second, third or even later owner of the mortgage. The burden rests on the plaintiff to prove that it is the legal holder of your mortgage.
Failure to post a Non-Resident Cost Bond:
Most lenders and foreclosure lawsuit plaintiffs are not based in the State of Florida. Under Florida law, such plaintiffs must post a bond with the Court or the case may be dismissed. Because a large portion of foreclosure lawsuits are never properly challenged, out-of-state plaintiffs often file their foreclosure actions without posting the required bond in the hopes that the deficiency will go unchallenged because the defendant homeowner/mortgagee is in default, the defendant homeowner does not know to raise the issue to the court, or an inexperienced attorney does not notice it.
Lack of Required Documents:
If the plaintiff or lender cannot provide the required documents, you may be able to have the Court dismiss the foreclosure lawsuit or declare the mortgage and/or promissory note unenforceable. For example, under Florida law, documents such as a mortgage, which involve the transfer of a right in real property, must be signed before two separate witnesses to be enforceable. If the required documentation cannot be found or is not applicable, the plaintiff may not be able to prove its case. Accordingly, the required documents may be attached to the complaint but, absent the defendant or defendant homeowner’s attorney raising it to the Court, and the documents may result in the plaintiff prevailing.
Truth in Lending Act (TILA) 12 U.S.C. § 1601 et seq.
TILA requires lenders to make certain disclosures to borrowers including, but not limited to, as the annual percentage rate, finance charges, amount financed, total payments, payment schedule, and other matters. Where applicable, TILA can be used as a defense to the foreclosure action and/or as a recoupment/setoff claim against the amount being claimed by the plaintiff lender. Under 12 C.F.R. § 226.23(d), also known as “Regulation Z” if rescission under TILA is proper, the security instrument/mortgage giving rise to the cancellation becomes void, and the borrower may be held not liable for any amounts including finance charges. There are strict time limits for asserting TILA rights which range from three (3) days to three (3) years after the loan transaction is consummated.
The above are just some of the possible foreclosure defenses, and many other defenses may apply to a specific case. Given the overwhelming number of foreclosure cases working their way through the Florida Courts, cases where the homeowner does not defend the foreclosure action can quickly move through the system via the Florida Courts’ foreclosure “rocket docket” where facts are disposed of in favor of the plaintiff with as little as just a few minutes of actual judicial review of the papers prepared by the attorney and/or possibly robo-signing employees of the plaintiff.
We encourage all purchasers to interview an attorney that they may be contemplating to retain and to ask that attorney for their experience, record in this area of the law, number of cases taken to final judgment, number of cases affirmed on appeal, number of attorneys in the firm, firm staff, resources, etc. We sincerely believe that purchasers should not retain an attorney or law firm until they are confident that 1) the law firm has the experience and resources to represent their best interest and 2) they fully understand the law firm’s litigation strategy.
The Florida Bar, which regulates all attorneys who are licensed to practice law in the State of Florida, provides strict guidelines which prohibit us from referring to past successes or results obtained for other clients. However, we can provide you with this and additional information in response to any inquiry. Accordingly, we encourage you to contact us via the “Contact Us” page, and we will promptly respond with additional information.
Urban Thier & Federer, P.A.’s representation of buyers, includes litigation of cases in state court, federal court and arbitration proceedings. We encourage you to become informed of your rights and options. You should also ensure that any law firm you consult or retain to represent you has the experience, resources, and ability to take your case through trial and appellate courts, if necessary.
Please note that Urban Thier & Federer, P.A. does not represent you and cannot take any action on your behalf unless and until you enter into a formal written Legal Representation Agreement.
by John L. Urban, Shareholder