Foreclosure Defense Attorney at Law, Help Avoid Foreclosure, Stop Sale & Auction Date -The Young Law Group, PLLC

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Foreclosure Defense

A foreclosure defense allows homeowners to assert their rights and oppose a foreclosure proceeding by engaging in litigation defense strategies. One method of addressing a foreclosure proceeding is to defend the foreclosure litigation. Our law firm can assist a client right from the start by answering the initial summons and complaint. Considering that 20-30 days from the date of service an answer and/or motion to dismiss is due, it is imperative to file a timely response. Such answer is one out of several documents that are usually filed as part of a foreclosure defense. Other documents include a motion to dismiss, if applicable, and a response to a motion for summary judgment. If the client retains our firm in the early stages of the foreclosure, the Plaintiff's Summons and Complaint can be answered and other documents responded to, resulting in a contested proceeding that will protect the client's rights, allow the client to receive all notices and documents, and enlarge the time necessary for the mortgage holder to proceed with its foreclosure case.

Even if a client is past the 20-30 days available to answer after receipt of service of the Summons and Complaint, our law firm can move to enlarge such time under appropriate circumstances. As the foreclosure litigation progresses the Plaintiff's other papers, including the Motion for Summary Judgment, can be opposed. Moreover, even when the foreclosure proceeding is nearing an end, there are still available options such as preparing an Order to Show Cause in an attempt to stay the foreclosure sale and/or the transfer of the deed. If a client is considering defending the foreclosure litigation, a client needs representation from a law firm that is dedicated to this area of practice. Effective strategies are contesting service of process where our client was not properly served with the summons and complaint and asking for discovery in terms of disclosure documents from the closing where there are questions as to proper disclosure. Also in many cases demanding that the Plaintiff produce original loan documents which they may lack and which some courts have viewed as necessary to pursue the action.

If a client desires to defend the foreclosure action and they have been in foreclosure for over one year and/or have a foreclosure sale date, they may need to proceed by emergency Order to Show Cause in order to assert their rights and have a possibility to stay the foreclosure action and/or foreclosure sale.

A client needs to exercise your right to assert any defenses regarding either the foreclosure proceeding or any other issues that involve the mortgage. Defending the foreclosure action allows the client the opportunity to assert any defenses, either technical or substantive, involving the foreclosure proceeding, the mortgage holder's conduct and/or any issues that involve the mortgage itself. Legal defenses can delay the foreclosure proceeding and allow more time to explore alternative solutions, and potentially threaten the dismissal of the foreclosure action. Many times, our firm can identify possible issues that would create a strong defense and threaten the dismissal of the foreclosure action. The best chance a client has for success is to retain the services of our law firm immediately upon initiation of a foreclosure proceeding. Even if the client thinks it is too late, it may not be. Our firm may, if needed, make a motion to extend the time to file an answer in certain situations where the time has expired.

Order to Show Cause

Orders to Show Cause are emergency motions and can be pursued in both state court (the Supreme Court of New York ) and federal court (the United States Bankruptcy Court). In state court the Order to Show Cause usually attempts to stop a foreclosure sale on an emergency basis by arguing that based on technical and/or substantive grounds the homeowner should be given more time and opportunity to pursue a definite and tangible option that has a good chance of resolving the foreclosure situation. Such options are sales and refinancing that are almost completed and usually technical reasons also need to be present to show that there were improprieties in the foreclosure action with such items such as process of service. In bankruptcy court an order to show cause usually attempts to give a debtor an additional opportunity to stop a sale by reinstating a formerly dismissed case or by asking based on "changed circumstances" for permission to file an additional bankruptcy case where the debtor due to previous, excess bankruptcy filings cannot obtain an automatic stay upon a new bankruptcy filing.

FREE FORECLOSURE DEFENSE EVALUATION

Common Questions Asked By Those In Foreclosure

Should I open and respond to all mail from my lender or lender’s attorney?

The first notices you receive will offer good information about foreclosure prevention options that can help you weather financial problems. Later mail may include important notice of pending legal action and important dates. Your failure to open the mail will not be an excuse in foreclosure court, and ignoring these notices will only make the situation worse. Before responding, contact us immediately for a free consultation. Your lender will have an attorney working for them, so should you.

I have just been served with a summons and foreclosure complaint. What do I do?

YOU MUST RESPOND IN WRITING AND/OR SERVE AND FILE AN ANSWER AND AFFIRMATIVE DEFENSES WITHIN 20 DAYS OF BEING SERVED WITH THE COMPLAINT. Any delay may make the situation you are in worse, and if a borrower or homeowner fails to do anything at all, the situation may become the worst case scenario possible. Contact us immediately for a free consultation. Florida's mortgage foreclosure process will absolutely have serious, long lasting ramifications that you may have to deal with in the future, so it absolutely in your best interest to participate now while it is occurring. Your decision to participate now may preserve, protect and safeguard valuable legal rights affecting your future income, credit worthiness and income tax consequences. Contact us immediately for a free consultation.

If I do nothing, what will happen?

A default and default judgment will be entered, and the clerk of the court will auction your property, usually within 25 to 30 days from entry of a final judgment.

Will the foreclosure process affect my credit score?

It is hard to say exactly how many points your credit score will drop due to a foreclosure. There are numerous factors that affect your credit score. It does appear though, that loss mitigation options that do not result in the completion of the foreclosure are better for your credit score depending on which credit buerau you are looking at. However, Fair Issac Corp. (FICO) has been quoted as saying that loss mitigation options have the exact same negative effect on a person's credit score. This is so because Fair Issac Corp. has done very little analysis distinguishing loss mitigation options vs. foreclosures, and as a result of ignorance they treat loss mitigation options and foreclosure all the same. However, Trans-union, Equifax and Experian have a little more detailed credit scoring system, so they may account for loss mitigation options. However, a benefit of short sales and other loss mitigation options is that borrowers will generally face a shorter waiting period before they can obtain another mortgage. Many lenders primarily make loans that they can sell to big mortgage players Fannie Mae and Freddie Mac. Fannie Mae generally will not buy loans made to borrowers involved in a short sale in the past two years. That's shorter than the four-year wait time if you have a deed in lieu of foreclosure on your record, and the five-year wait time if you have a foreclosure on record. Typically, any late mortgage payments are viewed as a negative mark. Generally, negative marks will remain on a credit report for 7 years. Foreclosures also remain on credit scores for 7 years. The impact on credit scores diminishes over time though. Loss mitigation efforts and foreclosure are definitely better than a bankruptcy, as the filing of a bankruptcy is viewed by the credit reporting industry as an attack against all trade lines across the board, whereas a mortgage foreclosure is only an attack against a single trade line, your mortgage lender.

What if I file bankruptcy?

A bankruptcy will stop the foreclosure. A chapter 13 bankruptcy may allow you to make up the arrearages and reinstate your mortgage, over a period of time, usually 5 years. It means you make a regular payment and part payment each month until you get caught up. In a chapter 7, you will have to pay back the arrearages much quicker than 5 years, the foreclosure will continue. The general rule is bankruptcy negatively affects your credit score for 10 years, but sometimes the creditors on a chapter 13 will voluntarily remove it after 7 years to encourage people to file a 13 rather than a 7.

Are their income tax consequences as a result of a foreclosure?

It usually depends on whether or not your home or property has equity and what type of loan it is. If there is no equity, it is likely that the property or home will be sold for less than the mortgage amount owed. The Internal Revenue Service will consider debt forgiveness by the lender as income, and the borrower may also have income in the form of capital gains from the sell or transfer as well. However, there are several ways to offset this gain or income such as off setting income and capital gains with losses, being insolvent at the time of the transfer and bankruptcy. CONSULT WITH AN ACCOUNTANT. These rules are complicated and you are advised to make a thorough examination of your personal financial situation with an experienced tax professional.

After the property is auctioned by the court clerk, do I have to get out?

Yes. The sheriff’s office will physically evict you and remove you and your personal effects from the property, usually in as little as 10-15 days.

What can an experienced and knowledgeable lawyer do?

File an answer containing affirmative defenses, if any.

In the answer, is a denial of the lender’s complaint all I need to do?

Usually not. You must state all affirmative defenses, otherwise they may be waived or may be may not be sufficient to stop the foreclosure process.

What are affirmative defenses?

They are special defenses which must be specifically alleged, such as truth-in-lending violations, usury, fraud and other specific types of improper conduct by the lender, which may defeat or partially defeat the lender’s claims.

Why are affirmative defenses different than just an answer with denials?

The lender has a sufficiently more difficult burden to obtain a “fast” or summary judgment of foreclosure when affirmative defenses are filed.

Can an attorney just delay the case without justification?

No. An attorney cannot cause delay solely for that purpose. But, in the full exercise of your legal rights, delay may result as a by-product of a proper defense, often caused by the plaintiff not properly and promptly responding to your attorney’s rightful demands.

If I get a lawyer, does he automatically get more time to file an answer?

No, the 20 days continues to run. If a default is taken against you, it will pose, at a minimum, difficulties in getting the default set aside and allowing your attorney to use the defensive arsenal otherwise available on your behalf.

If my property is sold by the court clerk, what price will it bring?

Usually much lower than fair market value. Most of the time it is sold for the total amount of the mortgage, or less.

Will I get any of the sales proceeds?

Only if there is a surplus (if the property is sold for more that what is owed in total to the plaintiff and all other mortgages and liens on the property).

If the property is sold for less than the total owed, can the lender collect the difference?

Yes, but only if the Lender also obtains a deficiency judgment.

Can I sell the property and get my money out?

Yes, you can sell or refinance so long as the lender is paid prior to the foreclosure sale date.

I have lots of other questions, can I call the judge or the court for advice?

No. Judges, judicial assistants (judge’s assistant), court clerks and sheriff’s department employees cannot practice law or give you legal advice. They can only point out the existence of certain procedures, but cannot tell you how to follow them or how effective they will be.

Do I have the right to reinstate? (bring the mortgage current)

Not always, unless your mortgage or mortgage note specifically gives you this right. However, many mortgage lenders often voluntarily consent to reinstatement.