Common Foreclosure Defenses


As home owners are now engaging counsel to fight foreclosure, the number of defenses has also increased.  Now, defenses include a combination of common law, federal law, state law, and a number of regulations.  While there are over 50 different "defenses to foreclosure," the purpose of this article is to list the most common and most recent.

Invalid Affidavit

As many are aware by now, many Banks are reexamining their Affidavit processes.  Affidavits issued by "robot" have been ruled to be false statements of fact.  Because of this, several foreclosures have been dismissed with damages, including attorney fees, awarded to the home owner.

Unconscionable Mortgage Terms

This defense focuses on the fairness of the Mortgage.  To be able to assert this defense, the conditions and terms of the mortgage and or note must "shock the conscious of the Judge."  The defense is fact and case specific.

Service Member on Active Duty

If you are a Service Member on active duty, you are covered under the Servicemembers Civil Relief Act (SCRA).  If a foreclosure is initiated while you are on active duty, you are automatically eligible for a nine month postponement/continuance of the matter if requested in writing.

Failure to follow State Procedural Guidelines

Banks and their attorneys must follow state specific rules and court procedures in order to prevail in foreclosure.  One example, as indicated above is a false, misleading or inaccurate affidavit of fact.  Others include service of process and Notice.

Mistake and/or Error

Loan servicers make mistakes quite often when servicing a loan.  Mistakes may include posting a payment to the wrong account, failing to disburse escrows, overstating the amount needed to reinstate a loan, promising a refinance or modification if you go into default first, or adding excessive fees.

Failure to Prove who owns the Mortgage

In some courts, the inability to prove ownership of the mortgage will result in the dismissal of the action.  The Butler County Court of Common Pleas, in a recent case dismissed a foreclosure because the Plaintiff Bank could not prove they owned the mortgage at the time the Lawsuit was filed.

Failure to Follow State Licensing Law

Ohio, like all states, has a law that governs the those engaged in the lending business.  These businesses must folllow these rules and be properly registered in order to file a lawsuit to collect a debt.  Lenders that fail to follow the act are subject to both civil and cirminal penalties.

Consumer Protection Acts

Consumers are protected under both Federal and State consumer protection laws.  These laws govern the activities and behaviors with the goal of protecting the consumer.  Violations of these acts may serve as a partial or total defense.

Contact a Foreclosure Defense Attorney Today

If you are dealing with a commercial or residential foreclosure, you owe it to yourself to try to assert a defense. You have the best chance of being successful with this process if you hire an attorney to help. Contact a lawyer at Dever Legal Services by e-mail or by calling 877-464-5297.


DIY Foreclosure Defense


Sometimes knowledge is the best medicine.  Dever Law Firm now offers its' legal Treatise and internal training manuals to the Public.  These are the outlines and procedural manuals we use to train our attorneys and staff.

Contact Us for more information.