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Defending Against a Mortgage Foreclosure Lawsuit

If you are behind in your mortgage payments and are receiving threatening phone calls and letters from the lender, you are not alone. With Florida’s volatile real estate market, coupled with the COVID-19 pandemic, mortgage foreclosures by lenders have risen substantially.

Florida is a judicial foreclosure state. That means lenders must file a summons and complaint in court and serve copies on the homeowner. However, lenders are required to take several steps prior to the initiation of a foreclosure suit.

Federal mortgage servicing laws require that the lender contact the homeowner to discuss “loss mitigation” options no later than 36 days after a missed payment and no less than 36 days after each subsequent missed payment. The lender must contact the homeowner in writing no more than 45 days after a missed payment about loss mitigation options. If the lender fails to take those steps or cannot prove to the court’s satisfaction those steps were completed, the foreclosure suit may fail.

There are also rigorous documentary requirements to be met. The lender must be prepared to prove the chain of ownership by which it acquired the mortgage. If the mortgage is more than a few years old, it likely has been bought and sold several times by institutional mortgage brokers and/or financial institutions. If any records of prior owners are incomplete, the homeowner may challenge the current lender’s standing to sue.

The lender must introduce in court the original mortgage note, the complete payment history of the homeowner and correspondence from the lender to the homeowner advising that there were missing mortgage payments and that the lender was in default on the mortgage loan. If, for any reason, the lender cannot produce these items, the homeowner may be able to have the suit dismissed.

A homeowner defending against a foreclosure suit may remain in the home while the suit is pending. A vigorous defense to the foreclosure action may give the lender the incentive to settle with the homeowner. Such a settlement could be in the form of a mortgage modification in which monthly payments are reduced to a level the homeowner can afford, or a deed in lieu of foreclosure whereby the homeowner transfers the property to the lender but avoids the future costs and time involved in an extended litigation.

Clay Parker, Esq. is an experienced foreclosure defense attorney representing Central Florida homeowners and businesses. Please call 407-216-2504 or contact us online to schedule an appointment at our Orlando office.

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    108 Hillcrest Street
    Orlando, Florida 32801
    Phone: 407-894-8440
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"My job is to maximize the economic outcome in a legal setting, while advancing your legal rights and cause." Attorney H. Clay Parker IV