Legal Information is NOT Legal Advice: This site provides information that is only designed to help users safely cope with their own general legal needs. To have standing to bring a foreclosure lawsuit, the plaintiff must demonstrate that it holds the note and mortgage at the time the foreclosure lawsuit was filed. Many possible affirmative defenses or counterclaims to a foreclosure action exist, including Truth in Lending Act violations, Fair Debt Collections Practices Act violations, predatory lending, standing, and failure to adhere to procedural foreclosure requirements. homeowners, the Lender's bar position that the only defense to foreclosure is the affirmative defense of payment, is unjust. FAILURE TO COMPLY WITH APPLICABLE HUD SINGLE FAMILY DEFAULT LOAN SERVICES REQUIREMENTS/FAILURE TO COMPLY WITH CONDITIONS PRECEDENT: FAILURE OF GOOD FAITH AND FAIR DEALING: UNFAIR AND UNACCEPTABLE LOAN SERVICING, One affirmative defense we can use for when the lender lost the note (from our. Defenses under the TILA provisions are : A defendant who decides to answer the claims in the complaint must file the response within this time limit. Specifically, the originator of the loan and its co-conspirators made the following representations:a) Before the loan was made, the originator and/or its co-conspirators (hereinafter referred to collectively as Plaintiff and/or its predecessor(s) in interest) represented to Defendants that they had superior knowledge, information, skill and ability to Defendants in making mortgage loans, and that they would be looking out for the best interests of Defendants in the financing process and, in effect, protecting and promoting Defendants benefit;b) Before the loan was made, the Plaintiff and/or its predecessor(s) in interestrepresented to Defendants that:(1) Defendants would receive the best mortgage available(2) that it would be a good loan, and(3) it would be of substantial benefit to Defendants.c) The representations described in a) and b) above were made for the purpose of inducing Defendants to enter into the loan transaction.d) The representations were false and known by Plaintiff and/or its predecessor(s) in interest to be false at the time the representations were made and at the time the loan was made, in that:e) The Plaintiff and/or its predecessor(s) in interest did not have superior knowledge, information, skill and ability to Defendants in making mortgage loans as represented or did not use the same for the benefit and best interest of Defendants;f) The Plaintiff and/or its predecessor(s) in interest did not look out for Defendants best interest or protect and promote Defendants benefit;g) Defendants did not receive the best loan available;h) The loan was not a good loan;i) The loan was not in Defendants best interest, but rather was in the best interest and to the benefit of the Plaintiff and/or its predecessor(s) in interest;j) Defendants reasonably relied on the representations by the Plaintiff and/or its predecessor( s) in interest to their detriment.k) The Plaintiff and/or its predecessor(s) in interest failed to disclose all costs, fees and expenses; charged excessive fees, gave kickbacks and made payments of fees to parties not entitled to receive them, and failed to provide Defendants with all disclosures required by law.1) To confuse, bamboozle and defraud Defendants, the Plaintiff and/or its predecessor(s) in interest intentionally scheduled the closing with insufficient time at the closing for Defendants to have the time to actually read the documents requiring Defendants signature.m) Plaintiff and/or its predecessor(s) in interest, with the intent to defraud, intentionally failed to provide the loan closing documents in advance of the closing.n) The only parties who benefited from the loan were the Plaintiff and/or itspredecessor(s) in interest and their service providers. 2. Is It Too Late to Save Your Home When You've Received a Writ of Possession? and Regulation Z Section 226 etseq. Upon information and belief, Plaintiff and/or Plaintiff and/or its predecessor(s) in interest are guilty of an extortionate extension of credit pursuant to 687.071(1)(e), Florida Statutes, which defines it as any extension of credit whereby it is the understanding of the creditor and the debtor at the time an extension of credit is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation, or property of any person. In this case, Plaintiff and/or its predecessor(s) in interest are guilty of such an extension of credit because at the time of the loan, it was understood that Defendants failure to repay the loan could result in the use of criminal means by the Plaintiff to cause harm to Defendants or others persons, reputation or property, including trespass on Defendants property, perjury, mail and wire fraud, and Racketeer Influenced and Corrupt Organization (RICO) violations, as long as Plaintiff and/or its predecessor(s) in interest thought they would not be caught. This is where your affirmative defense comes in. Lets say your friend signs a note that says this other guy can take the $20.00 payment on his behalf. Fraud in the Inducement.i. 16. The lender should not have the ability to foreclose. An "affirmative defense" is a reason why a judgment shouldn't be granted in favor of the lender. And most states require the plaintiff to own and hold the mortgage and note at the time they sue. . -- F.R.C.P. Different defenses exist in a foreclosure action: Can those defenses actually get me out of the mortgage debt? Although the specific requirements vary in each loan agreement, lenders are usually required to provide borrowers with notice that they are behind in their loan payments, an opportunity to cure the default by making a payment or performing some sort of action within a stated period of time (usually not less than 30 days), and notice that if they do not cure the default in the stated period of time, the lender has the right to accelerate the loan. Willey v. W. J. Hoggson Corporation, 90 Fla. 343, 106 So. Instructions for Completing the Pro Se Answer and Affirmative Defenses to Foreclosure . 2d 717, 720 (Fla. 1956). A seasoned foreclosure defense attorney is equipped with an arsenal of affirmative defenses that may be of . R. Civ. If the note does not name the plaintiff as the payee, the note must bear a special endorsement in favor of the plaintiff or a blank endorsement. In light of all of the foregoing defenses, and on the face of the purported loan documents, the terms and circumstances of the Note and Mortgage were unconscionable when made and were unconscionably exercised, it is unconscionable to enforce the Mortgage by foreclosure. 673.1041.d) The note at issue is not a negotiable instrument as defined under 673.1041 because it does not contain an unconditional promise to pay and/or other requirements to qualify as a negotiable instrument.e) Therefore Fla. Stat. To initiate the suit, the lender (the plaintiff) files a document called a "complaint for foreclosure" or "petition for foreclosure" in court. Plaintiff lacks standing to prosecute the Complaint. To understand how this helps our case here is a quick background on the ruling: Seller: Kumar <- Doing the suing, Buyer: Nava <- Legally should be doing the suing instead of Kumar. May be sought by the borrower of a high-cost home loan after notice of acceleration or foreclosure of the high-cost home loan, asserting a violation of Code Section 7-6A-4 or 7-6A-5 in an individual action to enjoin . If you don't want to fight the foreclosure, you don't have to respond to the summons. Accordingly, lenders should avoid unscrupulous practices, overreaching, concealment, trickery, or other unconscientious conduct.. Loan Tr. To join FRAUD STOPPERS PMA click here: https://fraudstoppers.org/members-only/. Some of the most common affirmative defenses used in foreclosure cases are: The plaintiff (bank) must prove that they are the ones legally entitled to foreclose on you. . New Jersey is a judicial foreclosure state, which means that your foreclosure action must be brought before a court. summons and complaint. of a defense, it should not be dismissed" (Federici v Metropolis Night Club, Inc., 48 AD3d 741, 743 [2d Dept 2008]). ABC Mortgage and/or its agents knew or should have known the representation was false;v. ABC Mortgage and/or its agents intended that the representation induce plaintiff to act on it;vi. The notice of lis pendens is a document that is filed with the county clerk in the land records to provide notice to the public, subsequent lienholders, and potential purchasers of the property that a foreclosure suit encumbers the property. Quiet Title.Plaintiffs request this Honorable Court to enter its judgment against Defendants declaring the Mortgage, null and void; canceling the Mortgage of record; quieting title to the property owned by Plaintiffs and against Defendants and all persons claiming under Defendants; and granting costs of this action and such other relief as the Court may deem proper. The ruling of Kumar Corp. v Nopal Lines reinforces your argument. There are many different affirmative defenses that can be used when responding to a foreclosure complaint. Standing. Plaintiff alleges ownership of the note and mortgage in question.ii. As indicated in the Notice attached to the Complaint, filed September 1, 2007, but not served upon Defendant until April 13, 2008. [any] matter constituting an avoidance or affirmative defense." 3d 1009, 1019 (Fla. 2016) ([W]ith each subsequent default, the statute of limitations runs from the date of each new default providing the mortgagee the right, but not the obligation, to accelerate all sums then due under the note and mortgage.). 673.3091 provides only for re-establishment of negotiable instruments as defined under Fla. Stat. - We Help Stop Home Foreclosure and Remove Debt Liability-. After you answer each numbered allegation you will have the option to use case law, previous court rulings, and local statues to point out flaws in their foreclosure summons. Why Are Banks More Willing to Negotiate With Attorneys Compared To Borrowers? Kumar Corp. v Norpal Lines, Ltd, et. Thus, the Plaintiff was incorrect in stating that all parties to this action are properly before this Court. Again, depending on the laws of your state, the lender might also be entitled to a deficiency judgment. And keep in mind that affirmative defenses probably aren't going to keep you out of foreclosure forever.
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