Last Updated on: 26th July 2023, 10:11 pm

Pushing Back Against the Wave of Home Foreclosure

Ever found yourself in a David versus Goliath fight involving your home? It feels like an uphill climb, doesn’t it? Here’s the thing – many homeowners like you are becoming increasingly successful in challenging home foreclosures. This growing shift comes from revelations that some sectors of the real estate industry have often embraced deceptive lending practices. This damning evidence has turned the tide, with the judicial system even beginning to side with homeowners.

Lawyers and homeowners are riding this wave and challenging the foreclosure process in several ways. So, let’s dive into the key foreclosure defenses and how best to address them in court.

Navigating Foreclosure Defense

Challenging a foreclosure process involves taking it before a judge. This happens automatically in about 50% of U.S states where judicial foreclosure orders and civil lawsuits are the norm. For the rest, where foreclosures happen without court intervention (nonjudicial foreclosures), raising a legal challenge might need you to file a court case. In such lawsuits, you allege that your home’s foreclosure is illegal for one reason or another and request a stay on foreclosure till your case is reviewed.

Mortgage and Unconscionability: When it’s Blatantly Unfair

Sometimes the defenses against foreclosure tap into ‘equity,’ a branch of law focusing on fairness in situations where the existing legal remedy falls short. Merely arguing that your foreclosure feels unfair won’t cut it; providing clear justifications for your claim might. One such claim is ‘unconscionability,’ where the terms of your mortgage or the circumstances surrounding it are shockingly unfair to the point of stirring the judge’s conscience.

Did the Foreclosing Party Follow Protocol?

Occasionally, the party foreclosing could fail to toe the line with state requirements for a foreclosure. In such cases, you might be able to challenge the foreclosure on these bases. If successful, the court could order the foreclosing party to rewind to the start. Keep in mind though, minor infractions, like typo errors, may be overlooked, but major violations often lead to stern responses from the court.

Special Safeguards for Active Duty Servicemembers

If you’re an active servicemember, the Servicemembers Civil Relief Act (SCRA) gives you added protection. If your mortgage was taken before your active service began, even in states where foreclosures traditionally happen outside the court, your foreclosure needs to happen in a court of law. Therefore, if the foreclosure starts while you’re on active duty, a written request to the court can clinch you a postponement of proceedings.

Can the Foreclosing Party Prove They Own the Mortgage?

Only the owner of the loan, or a representative, can initiate foreclosure. If your mortgage has changed hands among numerous banks, investors, and lenders, it can get confusing pinning down who owns it. Such ambiguity can become a crucial defense against foreclosure.

Is the Mortgage Servicer at Fault?

Mortgage servicers, who collect and distribute mortgage payments on behalf of other financial lenders or banks, are prone to errors. You can mount a foreclosure challenge based on these mistakes, which can comprise of illegal high fees, incorrectly routing payments, or overestimating the amount needed to reinstate your home mortgage. A solid NYC Bankruptcy Law Firm could help sift through these legalities.

Foreclosure or Possession? You Have the Power to Decide

Don’t let the fear of foreclosure overwhelm you. Foreclosures don’t need to be the end game. Todd Spodek and his team at Spodek Law Group can work with you to mitigate the issue and retain your dream home. With deep experience in handling bankruptcy procedures, loan modifications, short sales, deeds in lieu, and foreclosure fraud defenses, our focus is to see homeowners hold onto their homes and not suffer tarnished credit scores. Get in touch with our NYC law firm today; it’s the best fighting chance your home has.