Homeowners may be able to Fight Back to Protect Their Rights and Save Their Home from Getting Foreclosed

According to the US Department of Housing and Urban Development, between 2007 and 2014, around 4.2 million homeowners in the U.S. lost their homes due to foreclosure. Foreclosure is a legal process wherein a creditor or mortgage lender puts up for sale a loan collateral (a house) in order to recover from a borrower all unpaid mortgages. Foreclosure usually starts after a borrower becomes delinquent in mortgage payment for three successive months.

There are two major types of foreclosure: judicial and non-judicial. In judicial foreclosure, the mortgagee or creditor (usually a bank) will need to file a case in court to start a foreclosure procedure on a delinquent borrower’s property. It takes several months for this procedure to be completed, though, giving the homeowner the chance to raise a legal defense that may save his/her property. There have been a number of foreclosure defenses resorted to in the past that have helped homeowners save their property, including:

  • a. Servicemember on active duty.
    • If your creditor filed a case in court to start foreclosure on your property, you are allowed to write the court to request for a postponement of the foreclosure proceeding. Protection against mortgage foreclosure is just one of the many types of protection provided by the Servicemembers Civil Relief Act (SCRA), formerly called the Soldiers’ and Sailors’ Civil Relief Act (SSCRA), for members of the military entering active duty.
  • b. Unconscionable (unacceptable) mortgage term.
    • This happens when a creditor/lender takes advantage of, misguides and deceives a borrower by designing a mortgage loan contract that is actually intended to make mortgage payment impossible, giving it the opportunity to seize and foreclose upon your property.
  • c. State procedures were not observed by foreclosing party:
    • In a foreclosure procedure there are steps that the foreclosing party needs to observe, such as serving the loaner a notice of default and giving the borrower 30 days to make a payment after the notice of default has been issued. Failure to observe any of the steps required in the foreclosure procedure gives the loaned the legal right to defending against such foreclosure.
  • d. Foreclosing party cannot prove ownership of mortgage:
    • There are times when the foreclosing party is not able to present ownership of mortgage. This is a common case wherein a mortgage contract has been purchased by different companies, so that ownership of the contract has passed from one owner to another.
  • e. Mistakes committed by the Mortgage Servicer:
    • There have been times when a case (that will start foreclosure proceedings) was filed in court by a lender, only to find out that the bases for the foreclosure were actually mistakes committed by the mortgage servicer. These mistakes include:
      • The error of crediting mortgage payment under another loaner’s name;
      • Imposing very high fees or collecting fees not approved by you or by the creditor; and,
      • Declaring a mortgage amount that is much higher than what you really are supposed to pay.

In its website, the law firm Gagnon, Peacock & Vereeke, P.C., says, “For most people, the home they live in is the most important possession they will ever own. That’s why a foreclosure on their home can be one of the most challenging experiences to go through. Not only can a foreclosure cause lasting damage to an individual’s financial standing, but it can also deprive them and their families of the place they have called home for years. Sadly, there are far too many situations in which lenders wrongfully foreclose on a home.

Wrongful foreclosure can be an extremely difficult thing to go through; however, homeowners should know that with the help of qualified legal counsel, they may be able to fight back to protect their rights and do everything they can to keep their home.”

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