What is a Foreclosure Defense?

Foreclosure defense touches on many areas of the law.  So many, that there are generally more defenses available to you to fight foreclosure than other kinds of lawsuits.  State law and federal law both provide substantial consumer protections for someone facing foreclosure. While it is unlikely that you will win a free home from litigation, wining on enough claims to reduce your balance is possible. 

Beyond mortgage and general real estate law, the laws that come into play with foreclosure defense include those surrounding contracts and contract formation, tort law, civil procedure, some constitutional law, and even criminal law. Foreclosure defenses can arise from any aspect of the loan transaction, from the initial sales process, to loan disclosure failure, loan closing, post-closing, servicing, pre-foreclosure, foreclosure, and even to the post foreclosure property sale. Defenses can arise from both statutory law and common law, and involve state and federal law. Finally, defenses can take the form of passive blocks that prevent the bank taking your home, or they could take the form of very aggressive claims directed as a lawsuit directly at the bank. You need an attorney who can work within these laws and is familiar with mortgage regulations – someone like Troy Doucet and Doucet & Associates Co., L.P.A.

It is important to find an attorney familiar with this area of the law, or who can at least can identify rescindable errors under The Truth in Lending Act (TILA), and someone with a working knowledge of how note and mortgages transfer under the Uniform Commercial Code (UCC). TILA is the federal law that provides one of the greatest foreclosure defenses to homeowners, and the UCC is the uniform state law that affects one of the most common issues facing those in foreclosure: whether or not the lender has standing to foreclose. Each can generate substantial defenses for the consumer in, or facing, foreclosure. There are multiple additional defenses that can provide substantial defenses to foreclosure, and having an attorney familiar with locating foreclosure defenses is important. Remember, each individual foreclosure situation is different and each requires an independent legal evaluation.

Troy Doucet has been working around the mortgage industry since starting as a loan officer for a lender in 2000. He owned a mortgage firm for several years before law school, audits loans, assists foreclosure defense attorneys nationwide, published two books on laws surrounding mortgage law, and primarily practices in foreclosure defense since graduating from Capital University Law School in Columbus, Ohio, magna cum laude. If you would like to speak with Troy Doucet about your case, please contact him at (614) 944-5219 or online.

In the unlikely event that your lender files foreclosure in federal court, these timelines will be different. If you are a tenant living in a property being foreclosed, you may have other rights. A link under the “Resources” page offers tenants additional information if the property owner is facing foreclosure.

Finally, you should NOT move out of your house until this process is complete. You remain the owner until the confirmation of sale, which means you retain ownership and liability for the property until the process is done. Thus, you should maintain the property and keep home owners insurance in place. The best way to accomplish that is usually by remaining in it (which also enables you to save money.

If you are facing a foreclosure lawsuit and have been served a “complaint,” you have 28 days in Ohio to answer that lawsuit or face a default judgment. It is incredibly important that you take action with the court before the 28 days is up to answer the foreclosure lawsuit. Delaying your filing an answer could mean you automatically lose the house, even if you are still working directly with your mortgage servicer.

We highly recommend you speak to an attorney before you are served with the foreclosure lawsuit – or immediately upon signing for service. Time is of the essence, and getting solid information from qualified counsel can be the difference between saving your home and losing it to a default judgment. Call us for a brief consultation, there is little to lose in reaching out to talk to one of our foreclosure attorneys before deciding how you want to proceed. Call us today for your consultation at (614) 944-5219.

It is unfortunate that we cannot trust what our banks tell us in today’s day in age. However, it is wise to “trust but verify” when talking to your mortgage company. If it is promising something is right around the corner while it files a lawsuit against you, that should be a red flag something is wrong. Albert Einstein said the definition of “Insanity” is doing the same thing over and over yet expecting a different result. Now may be the time to try something different by contacting one of our attorneys at (614) 944-5219.

We regularly receive phone calls regularly from homeowners that failed to answer the foreclosure lawsuit because their mortgage company told them a resolution was right around the corner. Many of these homeowners complain that they were tricked by false promises of loan modifications or short sales, being dragged along by promises that a resolution was days away, before finding out too late that their home was sold from under them. It is much easier for an attorney to fight a foreclosure if a default judgment has not yet been entered against you, so at least explore your options with qualified counsel.

If you have been served a foreclosure lawsuit, you must take action or answer within 28 days, or potentially face a default judgment against you. It is our experience that many judges are not receptive to allowing late foreclosure answers, meaning it is better to answer than to ask the court to reopen the case later. If you have been served a foreclosure lawsuit, call us immediately at (614) 944-5219.