Affirmative Defenses to Foreclosure Lawsuits in Florida

Foreclosure - Affirmative Defenses to Foreclosure Lawsuits in Florida

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Under Florida law, a homeowner's write back to a foreclosure complaint may consist of the affirmative defense that the plaintiff lacks legal standing to get a judgment of foreclosure.

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Because many plaintiffs have no direct relationship with the traditional lender, they are sometimes unable to furnish the traditional loan and assignment documents that are required of plaintiffs who ask judgments of foreclosure. Because many loans were frequently bought and sold by discrete loan servicers while the past several years, the loan and assignment documents have, in some instances, been misplaced.  This presents an opportunity for homeowners who are trying to stop a foreclosure sale.

The following is an example of how the "standing" defense may be asserted as an affirmative defense in a homeowners write back to foreclosure:

Plaintiff lacks standing to activate this action. My traditional mortgage was with _______ . This is not the same entity that commenced the instant action. Plaintiff has failed to contribute the original, or certified copies of, the note and mortgage and all relevant assignment(s). In Florida, only the owner and possessor of the mortgage and the note have standing to activate a foreclosure action.
 
The "legal standing" defense is just one of several affirmative defenses that homeowners should reconsider when responding to a foreclosure complaint. Other affirmative defenses that a homeowner should reconsider include; (a) violation of the Truth in Lending Act; (b) Fair Debt collection Practices Act violations; (c) incorrect observation or aid of process; and (d) lost payments.

A homeowner should determined recite the lender's complaint.  Under the Florida Rules of Civil Procedure, a plaintiff seeking a judgment of foreclosure is required to attach a copy of the Note to its complaint.  A  Florida homeowner who is served with a foreclosure complaint without a a copy of the Note should articulate this as a defense. This may stop the foreclosure performance until the lender can contribute a copy of the note. In foreclosure actions, any delay in the proceedings can be useful because it gives the homeowner an supplementary opportunity to find alternatives to foreclosure, including a short sale or loan modification. 

In virtually all circumstances, it is useful for a homeowner to file an write back when served with a foreclosure summons and complaint.  Failing to write back a foreclosure complaint may effect in the forfeiture of the legal defenses that are described above.

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