A Homeowner's Defense Against the Foreclosure Lawsuit

Foreclosure - A Homeowner's Defense Against the Foreclosure Lawsuit

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This is the second record in a series examining discrete normal issues of relating to foreclosures and the legal environment. Homeowners often avoid going to the preliminary foreclosure default hearing, which makes it very easy on the bank to win a case and strike for home from foreclosure to eviction. Being aware of some of these legal issues, though, can encourage foreclosure victims to make it to the hearing and present their side of the story, which may corollary in a great resolution to the qoute than a sheriff sale. Although these issues may not be come up at all, or the homeowners will find some solution exterior of the courts, being aware of these aspects of the foreclosure process can allow them to put together more backup plans if the bank does pursue the default straight through the county court system.

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Foreclosure

The previous record discussed what elements of a case that the lender would need to prove in order to win a judgment against the homeowners. These included proving there was a legally binding contract, the lender performed as agreed under the terms of the contract, the homeowners breached some part of the agreement, and the breach caused the mortgage business to suffer actual damages. The lender must prove all of these elements in order to win; if they can not prove one of them, there is no case. For example, if the bank shows all things else but can not prove that they own the paperwork for the loan, due to it being passed nearby from lender to lender, sold to hedge funds, speculation firms, and then sold to the foreclosing bank, but the loan papers are not clear, there may be no judgment awarded.

Of course, if the homeowners do not show up to the foreclosure hearing, the bank will often be awarded a default judgment, with the judge naturally assuming that the bank's case is sound. If the homeowners are made aware of their right to defend against the lawsuit, and naturally waive that right by not answering the complaint or showing up to court, the judge will assume that silence equals consent and the lender will win.

But, for homeowners making their own defense or hiring an attorney of their own to defend them, it is foremost to be aware of safe bet techniques that can be used to write back the foreclosure. The first step should be for the homeowners to recognize in the lender's complaint the exact legal claims being made. Obviously, the most coarse one in a foreclosure lawsuit will be breach of contract, specifically in regards to the mortgage loan. But without reading the complaint, homeowners can not be sure if any other claims are made, or if the bank has failed to make any claim at all. Identifying the claim will help the foreclosure victims begin to understand exactly what they are defending against.

Then, the homeowners may want to figure out the exact elements of each claim made against them. My first record on this branch explains the exact elements that would ordinarily need to be proved in a breach of contract case, although every case will be somewhat unique. But, as stated earlier, the bank will need to show that a legally binding contract existed between it and the homeowners, that the lender did all things as agreed, the homeowners failed to perform as agreed and breached the contract, and the lender suffered actual damages as a result. Although this may seem quite straightforward in theory, mortgage companies (and all creditors) are notoriously bad at record keeping and attorneys are not always known for competence when their shaky legal claims are challenged. Homeowners who can recognize exactly what needs to be proven can often in effect poke holes in the case and originate a sense of doubt over one or more element, depending on how approved the bank has been.

The next step may be for the foreclosure victims to recognize each fact that the bank may use to prove their case. Some of these items may be the original mortgage paperwork, any assignments of mortgage showing who owns the loan at the present time, mortgage payment records showing the missed payments, and so on. Because the lender is great as a debt accumulator under the Fair Debt variety Practices Act, it is quite cheap for homeowners to request exact validation of the debt. If the bank has not kept very clear transfer records, or there is doubt of who exactly owns the loan, there may be no case against the homeowners. For example, suppose the bank can not clearly show the loan was transferred to it. The homeowners may be in danger of being sued by a dissimilar lender who in effect does own the paperwork, or maybe they have been making on time payments to a dissimilar lender who has the right to collect. The bank that can not show it owns the loan can not prove it has the legal right to try and derive payment for the loan.

This is one conjecture why homeowners may want to put together documents that they have received that can disprove the lender's claims, as well as evidence that proves the claims the homeowners will make. As long as any one element of the mortgage company's lawsuit is defeated, there can be no judgment against the homeowners for foreclosure. If the bank's transfer documents are far dissimilar from the foreclosure victims' own information, there may be doubt that a legally binding contract exists between the bank and owners. Although this may just wish more documents to be produced by the bank, rather than the whole case being thrown out, it will show the lender and their attorneys that not every homeowner is willing to be pushed nearby and intimidated by an unfamiliar court system.

Admittedly, it will be very difficult for homeowners to get the foreclosure lawsuit thoroughly thrown out of court, leaving the bank with no other alternative than to write off the loan or start over and try to prove their case some other way. This happens in only a very small number of cases. But, homeowners with some knowledge of the foreclosure process in the court system, and the normal theories of what the bank must do and how it can be defeated, will be in a much stronger position to come to a resolution that does not involve losing the home. Judges can order the parties to reconsider settlement ideas straight through mediation or arbitration, but homeowners too fearful even to show up at court will lose their opportunities for such alternatives to foreclosure. Even when homeowners are represented by an attorney, having a background understanding of the legal process will make the sense easier to comprehend.

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