Signs You Need a Lawyer Involved with Foreclosure
In some circumstances, you might just want to let your house go. While you should retain an attorney in that situation, it is not always necessary. However, in certain circumstances, you should absolutely retain an attorney. You do have defenses against foreclosure in some cases, so not all is lost.
Defenses Against Foreclosure
A defense against foreclosure is an error on someone else’s part. Three of the main defenses include:
- The bank or other entity or person holding your mortgage (the servicer) cannot prove it owns your loan. This may often happen if the servicer did not file the proper paperwork. You usually see this when the loan has been sold by one bank to another. The parties may not have filed an assignment or other necessary documents.
- The servicer did not follow the proper procedures in filing the foreclosure. Florida statutes state how a party files a foreclosure lawsuit. One of the requirements is filing a lis pendens. Another requirement is that the servicer must notify you in writing of the foreclosure, even if that notice is published in a local newspaper. If you can show that these and other procedures were not followed, you have a defense to foreclosure.
- The servicer made an error with your account. If the servicer made a serious error with your account, including not applying funds where they belong or not crediting payments to your account, you may have a defense against the foreclosure. Additionally, if the servicer charged unreasonable fees, you may have a defense.
If you believe any of these situations apply to you, you need to retain a foreclosure attorney to help you defend your position in court. Always keep excellent documentation of mortgage payments and other fees you may have been charged.
Active Military Protections
Active servicemembers have some extra rights afforded to them under the Servicemembers Civil Relief Act (SCRA). You have several rights under the complex SCRA. If you feel that you may be exempt from foreclosure under the SCRA, contact a foreclosure attorney who is extremely familiar with this Act. One of the defenses includes the timing of the foreclosure. If you took a mortgage before you went on active duty, the servicer must have a waiver from you or a court order to file a foreclosure action.
A short sale is when you sell your home for less than what is owed and the bank/servicer agrees to take that amount and consider the mortgage paid in full. If you decide to sell your house “short,” you should also contact an attorney before you agree to this sale. Short sales could have tax and other financial ramifications.
If you are in the process of a loan modification, but the bank is stalling or trying to get you to modify a loan but filing foreclosure at the same time (“dual tracking”), the bank or servicer may be in violation of federal laws. In some cases, it may be in violation of state laws.
When to Contact an Attorney
Always contact an attorney right away. You need to address the issue before the foreclosure process is finished. While you may be able to get some restitution after the foreclosure case is closed, it is more difficult and sometimes not possible. Always be proactive when dealing with financial matters, especially foreclosure.
In some cases, you may also be able to save your home by filing bankruptcy. Once you file bankruptcy, an “automatic stay” goes into place. This means that foreclosure action may not continue until the bankruptcy is completed or dismissed. In some cases, if you are able to file Chapter 13, you might be able to save your home. When you do file bankruptcy and intend to save your home, you must be able to pay the full monthly payment on time every month. The arrearages are figured into the Chapter 13 bankruptcy plan.
Contact Yardley Law
If you have been contacted regarding a foreclosure, contact Yardley law for a consultation.