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Foreclosure Defenses

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In a Nutshell

When facing an impending foreclosure, there are actions you can take to defend yourself from a negative outcome. Learn how to build a defense that you can use in court and how to negotiate with a lender for a more manageable mortgage payment. Also find out if filing for bankruptcy could help you keep your house.

Written by Attorney Cody J. Harding.  
Updated September 22, 2021


Navigating the foreclosure process can be intimidating, but you do have options. Mortgage foreclosures are governed by state law. Your rights and opportunities for recourse will be determined by where you live and the terms of your mortgage. This article will explore how different kinds of foreclosures work and what defenses you may be able to present if a lender initiates a foreclosure process on your home.

Defending Against a Foreclosure

State law determines the steps that your lender or servicer must follow before foreclosing on real estate. They must follow formal legal requirements before trying to reclaim and eventually sell your property. State law will also provide for potential defenses and the terms of any potential foreclosure sale. Generally, there are two types of foreclosure: judicial and non-judicial. 

Judicial foreclosures are lawsuits filed in local courts. The specifics of this process are determined by state foreclosure laws and county courts. Homeowners should seek a free consultation with a local foreclosure defense attorney or speak with the help desk at your court to get a better understanding of the “ins and outs” of this process where you live. 

Non-judicial foreclosures are permitted in some states. This option allows a lender to proceed with a sale without first filing a lawsuit against a homeowner whose mortgage is in default. Oftentimes, this process is faster and offers little opportunity for the homeowner to raise defenses or delay. Still, the lender must provide adequate notice and comply with the terms of the mortgage. If they have failed to do so, homeowners may be able to defend against the foreclosure on these grounds. Other defenses to non-judicial foreclosures exist, but because this process unfolds so quickly, defenses must be raised as close to immediately as possible once a homeowner in default learns that they are actively facing a foreclosure action.  

Building a Defense 

Whether you're going through a judicial or non-judicial foreclosure, the key to building a strong defense will likely be found in the nitty-gritty details of this process. With a judicial foreclosure, you’ll first receive a summons and complaint that initiates the foreclosure action. Don’t ignore any court-related papers that you receive! Be sure to answer the summons and check the details to make sure everything detailed in the summons and complaint is accurate: 

  • Parties: Did they name the right parties? If the name of the lender is not correct, check whether the plaintiff (the foreclosing party or company that filed the lawsuit) attached proof that the loan was transferred. Alternatively, the plaintiff may be an agent of the lender.

  • Balance Due: You’ll want to make sure that the amount that the plaintiff is claiming is correct. Also that they are suing the correct person.

  • Service: Each state has different rules concerning serving legal notices. Oftentimes, formal steps (like posting at the property or sending certified mail) are required. Check to see if service was proper according to your state’s rules.

  • Notices: Make sure that the bank sent you all required pre-foreclosure notices, such as the notice of acceleration or notice of default.

If any of this feels too complicated to navigate on your own, that’s okay. Legal help is available for homeowners who need assistance when dealing with the foreclosure process. To ensure that you present the strongest possible defense, you’ll want to seek legal advice from an experienced local attorney, a legal aid society, or another trustworthy source of legal guidance.

Depending on your circumstances, you might have other legal defenses available to raise during your foreclosure case. 

To start, are there any reasons that the bank is prohibited from foreclosing at the moment? If you have an open bankruptcy case, the bank is not legally allowed to proceed with foreclosure until after your bankruptcy case has been closed. Federal law also prohibits lenders from initiating foreclosure actions against active duty members of the military under The Servicemembers Civil Relief Act

Lenders are also required to follow the terms of the contract that you both signed when you borrowed the money. You’ll want to look at your loan documents closely to ensure that they are not breaching those terms. Specifically, look to make sure that the lender followed any necessary steps or notice obligations before filing their foreclosure complaint.

You might also have a defense if your mortgage payments were not processed properly. If your loan servicer has changed or experienced technical issues, your payments might not have been processed on time. But if you know that your monthly payments were submitted properly, you may have a valid defense. 

Whether the lender has failed to meet a notice requirement or you have a legitimate reason that your missed payments were not received, you must make sure to present a defense when responding to the complaint or you might risk waiving your opportunity to protect your interests. Remember that even if you’re trying to negotiate an alternative deal outside the court, in some states the lender is allowed to move forward with the foreclosure process at the same time. 

Managing a Foreclosure Process Outside the Courtroom

Even if you don’t have valid defenses, you may be able to delay the foreclosure process. But eventually, the judge will rule in favor of the plaintiff unless your defense is rock solid (ie: you paid on time or you don’t owe the lender money, etc.). Most foreclosure defendants fight the case in the hope of delaying the foreclosure proceedings long enough to find a different permanent solution, such as selling their home or negotiating with the lender to keep their home under the terms of a modified mortgage agreement. 

If you want to keep the home, you’ll need to find a way to make your payments manageable moving forward, likely through refinancing or modifying your loan. 

If you can’t afford to keep your home, you can try to work out a short sale (selling the house for less than the market value) or a deed in lieu of foreclosure (returning the property to the bank in exchange for a longer move-out period and no deficiency debt) to avoid foreclosure if you can’t sell your home at a profit. These options can help you salvage the situation. Otherwise, if the bank forecloses, sells the property, and does not receive enough from the sale to cover the amount you owe, they may pursue a deficiency judgment. This means that the lender will hold you financially responsible for the unpaid balance. Under these circumstances, transferring ownership to a new buyer through sale or back to the bank by deed may be your most viable solution. 

Whether you are trying to keep the home, transfer ownership, or negotiate a loan modification with the lender, finding an alternate solution to foreclosure is the best option. A foreclosure can seriously damage your credit score, which will make it difficult to obtain credit and nearly impossible to purchase another home in the near future.

Bankruptcy 

Filing for bankruptcy as a separate case can’t prevent a foreclosure, but it can delay the process. In bankruptcy, the court issues an automatic stay which prohibits virtually any debt collection action against you while the case remains open. Chapter 13 bankruptcy helps you manage your debts over a 3- or 5-year repayment plan, which can help you keep the house. Chapter 7 can help discharge the mortgage debt. Although bankruptcy may not solve the problem outright, it will pause the foreclosure and allow you a chance to examine all viable options.

If you are struggling to make payments or face foreclosure, a HUD-approved housing counselor may be able to help you understand your options. More information about your options can also be accessed via the Upsolve Learning Center

Let’s Summarize...

Foreclosure proceedings are time-consuming and expensive. Lenders and banks are eager to find alternate solutions. For homeowners, foreclosures are not only disruptive but can have long-lasting negative financial consequences. So if you are facing a foreclosure, your best option may be to negotiate. 

By acting early, you might be able to modify the terms of your loan, make up missed payments, or even transfer ownership of the home if you can no longer afford it. Under the circumstances, you may have valid defenses. It is important to review any notices or court documents you receive immediately so that you can present your best case. If you are unsure what to do next, an experienced attorney can help you present those defenses. In either case, remember that the longer you wait, the fewer options you will have. 



Written By:

Attorney Cody J. Harding

LinkedIn

Cody J. Harding is a Brooklyn-based attorney who supports startups and local businesses. His law firm serves growing companies, specializing in commercial transactions, intellectual property, and business consulting. Before starting his private practice, Cody served as a Deputy A... read more about Attorney Cody J. Harding

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