Foreclosure Defense is the legal process that allows a Homeowner or Property owner to legally challenge a mortgage company/Lender’s efforts to foreclose on their home and property. The process typically involves hiring an Attorney who specializes in foreclosure defense to represent the homeowner in court.
Here are the basic steps involved in foreclosure defense:
1.) Initial Consultation: The initial step in the Foreclosure Defense process is for the homeowner(s), to meet and/or consult with a foreclosure defense attorney. During the initial consultation, the Attorney will review the loan documents such as the Note and Mortgage that are normally attached as exhibits to the Complaint/Lawsuit. Additionally, the Attorney will review and discuss the homeowner’s unique financial situation, to determine if they have equity and/or sufficient income to determine what foreclosure alternatives might be available such as reinstatement, payoff, modification, litigation, etc.
2.) Review of Loan Documents: The Attorney will review the homeowner’s loan documents such as the Note and Mortgage to determine whether there are any legal or procedural issues with the lender’s foreclosure complaint. This review may also include examining the HUD/Closing Statement, acceleration notice and other loan documents that may exist, such as an Assignment of Mortgage.
3.) Filing a Response to the Foreclosure Complaint: If the homeowner decides to contest/fight the foreclosure, their attorney will file a response (typically either a Motion to Dismiss or an Answer with Affirmative Defenses and any potential Counter Claims), to the foreclosure Complaint with the court. This response typically raises any legal or procedural defenses that the homeowner has against the foreclosure lawsuit.
4.) Discovery: After the response is filed or in conjunction with, the Attorneys for both the mortgage holder and the homeowner may request that the other party to the lawsuit answer questions (“interrogatories”), or provide document (“Request to Produce”) about the loan and/or their finance, the property, and other relevant information. This process is known as “Discovery” and it allows both sides to gather evidence to support their case.
5.) Negotiations: During the foreclosure defense process, the homeowner’s attorney may engage in negotiation with the lenders attorney in an attempt to reach a Settlement or Modification agreement that will allow the homeowner to keep their home.
6.) Pre-Trial Motions: Before the case goes to trial, the homeowner’s attorney may file motions with the court to challenge the lender’s evidence or seek dismissal of the case based on legal or procedural grounds. For example, the homeowner’s attorney may file a Motion in Limine seeking to prevent the lender’s attorney from being able to present evidence at trial.
7.) Trial: If the case goes to trial, first the Plaintiff/lender’s attorney will present their case and argue why the foreclosure case should proceed. After the Plaintiff presents their case in chief, the homeowner’s attorney will present their case to the court and argue why the foreclosure case should not proceed, based upon the specific facts of that case.
8.) Appeals: If either the Plaintiff/lender or the Defendant/homeowner loses at trial, they may be able to appeal the decision to a higher appeals court.