Step 4 in Protecting a Foreclosure – Analysis Your Options

By MyVine | October 27, 2011

When the homeowners have gone through the rules that they as well as the bank’s attorneys will need to follow in court and have requested extra time via a Motion for Extension of Time, it truly is suitable to begin researching a variety of legal defense options. While several of these defenses against foreclosure may be used in the answer towards the complaint, some of them must be looked into initially to determine if filing a Motion to Dismiss is appropriate.

This part with the procedure can be labor intensive and quite time consuming, so borrowers have to be willing to put inside the hours of study into how various federal laws work, what would indicate a violation, and what the violation indicates towards the bank’s lawsuit. The use of one defense or a different will, needless to say, depend on the homeowners’ objectives using the home, no matter whether they need to keep it, force the bank to negotiate a mortgage modification or other answer, or simply get as much time as possible to sell or move out.

If they’re attempting to have a mortgage rescinded entirely, borrowers might not want to raise defenses with a maximum penalty to the bank of several thousand dollars, as an example. Locating a stricter law with heavier penalties would make far more sense. But for homeowners just attempting to get some extra time to save up cash to move out, the far more that could be argued against the bank, the more time the lawsuit will take.

In any case, homeowners attempting to stop foreclosure by defending the lawsuit need to pay unique attention towards the defenses that would enable them to have the whole mortgage rescinded or the lawsuit thrown out of court. Particular violations of the Truth in Lending Act (TILA) as well as the Home Ownership and Equity Protection Act (HOEPA) would result in severe penalties for the bank. As well, the messiness of mortgage assignments might cast doubt on the mortgage company’s capability to sue in the first place, if it can not prove it owns the original note.

Also, homeowners must have as one of their objectives filing a Motion to Dismiss the case based on the bank’s lack of legal standing or failure to follow the notification and pre-foreclosure procedures prior to initiating the lawsuit. Both the Federal Housing Administration (FHA) and state foreclosure laws dictate what a bank must do just before it declares a house to be in foreclosure and attempts to have the homeowners removed by court order. If the lender does not follow these procedures, the lawsuit could be thrown out for the present time until the bank complies using the requirements. And these defenses might be raised right before an answer towards the complaint is even filed, if a Motion to Dismiss is filed rather.

Filing a Motion for Extension of Time may be practically automatic for homeowners facing foreclosure. The positive aspects of this apply to nearly all borrowers, which includes those that want extra time to mount a defense, work with the lender on a solution to foreclosure, or just want an additional few weeks to get their finances in order just before moving out. But for those owners who are critical about defending their household in court, the subsequent step immediately after receiving more time is basically researching what laws and regulations apply to their case and beginning to mount their defense.

Defending a Foreclosure

Step 1: Determine What You would like

Step 2: Play By The Guidelines

Step 3: Get More Time

Step 4: Analysis Your Options

Step 5: Who Owns the Loan and TILA

Step 6: Have the Lawsuit Dismissed

Step 7: Answer the Complaint

Step 8: The Discovery Method

Step 9: Summary Judgment

Step 10: Go to Trial

Step 11: Lose, Win, or Appeal

Topics: Buying Tips, Financing, Foreclosures, General, Investing, Selling Tips | Comments Off

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