Foreclosure Defense

Foreclosure is a legal action taken by a lender or bank to take back property from a borrower that is delinquent on payments. In the State of Florida, all foreclosures are Judicial foreclosures that are controlled by the courts and governed by a set of guidelines. Lenders must abide by a specific process that names actions and timelines.

If you fall behind on loan payments your lender may choose to begin foreclosure proceedings. Here is what you can expect.

  • You will initially be sent a Notice of Default. The letter usually asks you to bring your loan to a “current” status by a specific date. If you fail to respond or act on the request, your lender may choose to take legal action.
  • Your lender’s attorney(s) will file a Lis Pendens/Complaint with the court. This gives notice that legal action is in the works. You are officially being sued by your lender.
  • You will be notified of the action by way of a Summons/Service of Complaint that is personally served or served to a family member in your household who is at least 15 years of age. In some cases, the summons may be published in a local newspaper. You have 20 days to respond to the complaint by filing an Answer to the Complaint. By doing so, you will have a chance to state your case before a judge. However, if you do not respond, the lender may receive a default judgment.
  • Once you respond, a Motion for Summary Judgment/Trial will be filed on behalf of your lender. This indicates to the court that a trial is not necessary because you have not disputed any issues of fact. If the judge agrees, a judgment will be entered. If, however, the judge believes that facts have been disputed, he or she will set a date for trial.
  • With or without a trial, a date and time for the Sale of Property will be set. If the property is sold, the proceeds will go to the lender. If there are no bids on the property, title will be given to the lender who will then be able to sell it on the open market. In either case, you face eviction.
  • If the property is returned to the lender and the full amount remaining on the loan is not obtained through resale, the lender has the right to sue you for a Deficiency Judgment. With this action, the lender has the right to collect not only what you owe but also the foreclosure costs by garnishing wages or bank accounts, or by placing a levy upon any and all of your assets.

You DO have options. First, you can negotiate with your mortgage company to reinstate the mortgage. Second, you can file a Chapter 13 Bankruptcy. The first two options assume that you can afford your current monthly payment, and selling or refinancing your home may be impossible if you have little equity or even negative equity. Many homeowners, especially those with sub-prime mortgages, can no longer afford the mortgage payments, even if the mortgage was current. That makes a Chapter 13 bankruptcy impossible. A third option is to sell your home or attempt to refinance. Fourth, you can give up, and get out of your home.

With Parker & DuFresne, you have a fifth option… You can fight the foreclosure! While you are litigating the foreclosure case, you are not required to make your normal monthly mortgage payments. You may be able to modify your loan or force the lender to completely rewrite the terms of your note and mortgage, enabling you to keep your home. This may sound too good to be true, but you may actually have valuable defenses and counterclaims against your mortgage company that could actually prevent foreclosure and even require your lender to pay you damages.

Loan/Mortgage Modification

What is a loan/mortgage modification? It is an agreement negotiated between you and your lender that changes the original terms and conditions of the promissory note secured by your mortgage. The possible changes include temporarily suspending mortgage payments OR lowering monthly payments by reducing the mortgage interest rate, by increasing the loan duration, or by reducing the principal of the loan. These changes or modifications make the property affordable for the homeowner.

When a loan/mortgage modification is negotiated by a knowledgeable attorney, the process time and the risk for error are reduced. Perhaps even more important, the chances of your being a victim of unscrupulous scam artists are eliminated. The attorneys at Parker & DuFresne have experience working with lenders and homeowners to devise loan modification plans that work for all parties involved. They will review your financial situation and your mortgage before guiding you through the loan modification process and negotiating with your lender.

Fraud or Truth in Lending Act Violations

Your mortgage company may have filed an improper foreclosure lawsuit. Across the country, judges are punishing mortgage companies for incomplete record keeping and for violations of the Truth In Lending Act. You may be able to allege valid defenses including fraud and Truth In Lending Act violations.

Are you aware that your mortgage company is probably not the same company that actually loaned you the money to buy or refinance your home? If your current mortgage company is not your original lender, it probably has never read your mortgage. Your mortgage may require that the plaintiff accelerate (i.e. demand) the entire balance of the note. Your mortgage company may have failed to do that, which may entitle you the opportunity to cure the mortgage by paying the reinstatement amount. To determine if Fannie owns your loan, check here, and to determine if Freddie Mac owns your loan, check here.

How do you know if the mortgage company suing you has been properly assigned your note and mortgage? Does your foreclosure complaint even have copies of the note, mortgage and purported assignment attached? Most likely, these documents are not attached and may not even be in the possession of your mortgage company. Your mortgage company may be attempting to substitute your original note and/or mortgage with a purported copy. This is called a “Count to Establish Lost Documents." There are strict legal requirements to establish a lost note or mortgage, and your mortgage company may be unable to meet the requirements if challenged.

If you are facing foreclosure, it is in your best interest to contact the attorneys at Parker & DuFresne immediately for a free consultation. Chip Parker is a graduate of the prestigious Max Gardner's Bankruptcy Boot Camp, which has been featured in Business Week magazine and on ABC's Nightline. The attorneys of Parker & DuFresne are armed with the knowledge and resources to fight your mortgage company. They will meet with you to review your foreclosure complaint and discuss your options. Avoiding foreclosure so that you can keep your home is their ultimate goal. Call 904.733.7766 or complete the online consultation request at today.

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