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Protecting Your Property through Foreclosure Defense

Posted on Feb 3, 2014 by in Bankruptcy | 0 comments

When you become delinquent in paying your mortgages (usually six months or more), your creditor may decide to put up your house for sale by employing state procedures – this is the legal process called foreclosure. A foreclosure may either be judicial or non-judicial.

Judicial foreclosure requires the lender or the mortgagee to file a court case for the foreclosure to start. Since a judicial foreclosure procedure normally takes several months, loaner gets the chance to raise a legal defense in order to save his/her property. With the help of a highly-knowledgeable lawyer you can study the circumstances that can affect the court case filed against you and follow it with the best defense that can work in your favor. Some of the most frequently used foreclosure defenses employed in the past include:

  • Unconscionable mortgage term: this is a case where in the conditions surrounding the mortgage are so unfair, enough to “shock the conscience of the judge.”
  • Servicemember on Active Duty: if, while on active duty, a Servicemembers’ property has been applied for foreclosure by the lender, the Servicemember can request the court, in writing, for a postponement of the foreclosure proceeding. This is part of their protection provided by the Servicemembers Civil Relief Act (SCRA).
  • State Procedures were not observed by Foreclosing party: defending against a foreclosure is acceptable, especially if the foreclosing party failed to follow procedures required by the state, such as serving the loaner a notice of default.
  • Ownership of Mortgage cannot be proven by the Foreclosing Party: the party who made the foreclosure usually encounters difficulty in presenting ownership of mortgage. This is especially true when the mortgage has passed from one owner to another after having been purchased by different companies.
  • A serious mistake was committed by the Mortgage Servicer:  A juridical foreclosure may challenge based on the following mistakes by the mortgage servicer:
    • The payment you made was credited to the wrong loaner.
    • Imposition of too much fees or collection of fees not approved by either owner or lender.
    • Stating an amount much higher than what you are supposed to pay.
  • Unfair Lending Practices were employed by original lender: if lenders violated any law mandated either by the state or federal government which was intended to protect borrowers from unlawful lending practices, then their the foreclosure they filed can be challenged by loaners or owners of property. The two federal mandates that prohibit unfair lending practices are the Home Ownership and Equity Protection Act (HOEPA) and the Truth in Lending Act (TILA).

In order to avoid foreclosure, bankruptcy may be a viable option. For more information, contact the Cincinnati Bankruptcy Attorney today.

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