Defending a Lawsuit Against Foreclosure

What Is A Foreclosure Lawsuit?

A foreclosure is a legal process that involves a lender approaching a court of law to seek an order to allow them recover the balance of a loan from a borrower who has not been able to either keep up with the repayment terms or to completely repay the debt, by selling off the assets used as collateral to obtain the loan.

A foreclosure lawsuit is not dissimilar to any other kind of lawsuit. The same way one can be sued for medical misdiagnosis, personal injury or even a breach of contract is the same way one can be sued for foreclosure.

Peradventure you are sued, you usually have between 20 and 30 days to answer in court or else, the plaintiff can get a default judgment against you. Once the judgment has been taking against you, the plaintiff can restrain your bank account, seize your asset or even garnish your wages. By this time, no trial would be necessary. This judgment thus allows the lender to sell off your asset to recover the said debt.

To prevent this from happening, it is always advisable to answer the foreclosure lawsuit.

This article will explain the things you need to understand when defending a foreclosure lawsuit and other related subjects.

What Happens If You Don’t Answer A Foreclosure Notice?

Not responding to a foreclosure lawsuit is very likely to work against you, as a default judgment will very likely be given against you. Meaning that the relief which the plaintiff sought will automatically be given to them. It is therefore in your best interest to respond to such notice as soon as possible, or at least within the specified timeframe given to respond to it.

Many people often find going to court or appearing before a judge somewhat scary, so if such applies to you, then you might consider retaining the services of a foreclosure lawyer or even a business attorney who specializes in real estate or property law.

Whatever the case, as part of the plaintiff’s lawsuit against you, they will usually present certain documents to back up their case against you. Such documents will usually consist of things like the contracts you signed when obtaining the mortgage, accountings of both missed payments and the payments you made, served notices, communications with you, declarations and so on.

As previously stated, if you don’t pitch up, the court will automatically rule against you via a default judgment. Similarly, even if you do pitch up but you are not able to provide any information contrary to what the lender provides, then the judge is also likely to accept the argument of the plaintiff and thus give the lender the right to foreclose on your property. If however, you provide evidence or information that contradicts what the plaintiff tenders before the court, then the court will have no choice but to provide a date for a proper hearing and possibly a trial afterward, to allow both parties to properly present both legal and factual arguments supporting and opposing the foreclosure.

Discovery and Trial

Before the trial date, there will be a process called “discovery” which involves both you and the foreclosing party requesting documents, facts and other important details from each other.

During the trial, the foreclosing party must offer proof of a right to foreclosure the property in question. You as the defendant will have to prove why the foreclosing party should not be allowed to foreclose on your asset. There may be witnesses who will be questioned and cross-examined.

At the end of the trial, the judge will either give an order for foreclosure or dismiss the case.

Causes of Actions for Wrongful Foreclosures

Wrongful foreclosure occurs when a lender starts a non-judicial foreclosure against a homeowner when the lender has no legal cause to do so. Non-judicial foreclosures contain a clause in the agreement which allows a lender to foreclose without filing any lawsuit.

Wrong foreclosures may be based on the inability to foreclose because of mistakes on the recorded paperwork which can be attributed as negligence or even fraud, void assignment of the deed of trust or even on statutory violations.

There are different causes of actions for a wrong foreclosure. Wrongful foreclosure actions may suggest that the amount which is stated in the notice of default as owing and due is incorrect due to the following points:

  • Misapplication of payments
  • A breach of contract
  • Incorrect adjustment in business rate
  • An incorrect tax impound account
  • Unfairness in business practices
  • Refusal to consider a loan of modification
  • Improper notice to the asset owner
  • The inability of the lender to discuss foreclosure alternatives with the borrower
  • The inability of the lender to provide payoff figures

Wrongful foreclosure usually occurs due to miscommunication between a lender and the borrower. This could be because of an incorrectly applied payment, a mistake in interest rate charges and inaccuracy in information communicated between the lender and borrower.

Common Foreclosure Defenses

There are different ways to save your assets from foreclosure. Some of these foreclosure defenses can be used to delay or stop the foreclosure process if the lender did not follow the proper state procedures for the foreclosure process.

Most foreclosure defenses do not completely stop the foreclosure process, however. Some defenses may delay or even restart the process. This in itself can potentially be advantageous as it can give you more time to try and get back on track with the repayment of the debt.

Some of these foreclosure defenses that can delay or stop the process are:

  • Statutory violation
  • A mistake in the mortgage service
  • Fraudulent conditions on the mortgage paperwork
  • Predatory lending
  • The inability of the lender to follow the proper foreclosure procedures
  • Issues with the promissory notice
  • Interest rates charges that violate the state or federal law

To discover if you have one or more foreclosure defenses and how to give those defenses in court, consider talking to a qualified foreclosure attorney who can advise you on what to do in your particular situation.

Conclusion

Whenever you receive a foreclosure summon, do not hesitate to answer the summon as ignoring it will be to your disadvantage. Consider employing a foreclosure attorney immediately.

foreclosure attorney will help in answering summons and pointing out the errors in the complaints made by your lender. Also, an attorney will help create foreclosure defense strategies while pursuing a permanent solution that will prevent the foreclosure such as a loan medication platform.

Bio

Michael Kay is a writer, entrepreneur, social media enthusiast, and blogger. He writes for various publications online and offline. He has also joined the team of content writers at Telligent Marketing LLC, a digital marketing agency that offers law firm SEO Services for law firms.

How To Find The Best Small Business Lawyer in New York

Most business owners often find lawyers through personal referrals, as this provides a kind of ‘social proof’ for them. But one should always be sure to ask the friend or colleague how they know the lawyer and what type of work he or she did for them in the past.

Haven said that, personal networks can be limited, thus, more and more business people are using online resources to find lawyers. While there are many directory sites online that provide a good resource for finding lawyers as well as providing a review or ratting of these lawyers, it is always a good idea to check how these reviews and ratings are generated. You can use a proprietary algorithm rather than actual client reviews. This is because, for many people, it is often easy to buy or fake a review. Keeping this in mind, there is also a rapidly increasing number of higher-quality resources online, which will help you to connect with a lawyer. But, just like with everything else, find out how they find and vet their lawyers.

Small Business Lawyer

Regardless of which sources you use to find a lawyer, it is often a good idea to communicate with multiple lawyers before arriving at a conclusion. Speaking to several of them will give you a sense of what you would like and what you don’t, the types of expertise different attorneys have and their views on whatever legal issue you are faced with.

Entrepreneurs and business people basically want to find out the one who is fit to be the ‘best’ lawyer for the tasks at hand. But so long as that lawyer is highly qualified in the field required, the right choice for you should be the one you can picture creating a long term relationship and striking a rapport with.

Getting a NYC small business lawyer through online means can sometimes be very tricky. You may encounter cases of fraud and be cheated out of your money or even end up losing your business. You always have to perform a thorough background analysis on every lawyer you are considering working with, to be sure of who exactly they are.

When deciding to work with an attorney, another thing to be sure to look at is the person’s basic qualities too. For example, do they have good recall ability? Are they apt as stated in their profile? Do they have the requisite knowledge in the specific business area you operate in? Do they have the critical thinking skills and multi-perspective thinking capability, and is he or she an articulate speaker? These are some of the things you need to try and observe when meeting with any prospective lawyer for your business.

In general, some of the things you should seek to know about any prospective lawyer include the following:

  • Years of practice
  • Typical client in terms of size and industry
  • Primary sectors of practice/ breakdown of work usually done
  • How often does he or she handle similar issues (it helps if it is very often)
  • Other lawyers in the firm and their field of expertise. Also, who will handle your case among them?
  • Types of fee arrangements available to you, whether flat, hourly, capped, contingency or any other. Is a retainer required?
  • What rate is there and if there are others working on your project, how much their rates will be.
  • How often your bills will be due and whether you can get to see what you are billed in real time. Can you pay them online?
  • About the project at hand. What is involved? How long it will take and the kind of information that will be required from you. The number of times the lawyer will need to meet with you.
  • Will you be the primary point of contact? What his or her typical response time to clients is.
  • How he or she likes to communicate with clients, e.g. phone, email, etc.
  • Why did he or she become a lawyer? And what he or she loves most about the practice.
  • His or her view about what things make a lawyer-client relationship work and what the challenges are.

And, perhaps, the most important question: can you speak to past clients of this lawyer?

Keep it in mind that a good connection with a lawyer can help you protect your business in long-term, so doing your part diligently will pay later.

Business Contracts

A business contract is a legally binding agreement between two or more parties. A contractual agreement may be made when the interested parties decide to engage in a transaction, including a purchase or sale, service delivery, property leasing, advertising, joint venture agreements, distribution, or selling of goods, etc. The business contract serves as a collateral to prevent any of the involving parties from cheating.

A business contract comes in different lengths based on the number of clauses entered into by the two parties. It can cover just a single paper or it might spread across several numbers of pages, and in some cases, become a booklet. Every business agreement is bound by legalities and comes with laid down duties. Generally, it’s a good practice to make sure that every business contract is entered into in the presence of lawyers from both sides.

The names and addresses of parties to a business contract are normally found on the first page of the contract. The first page could also house a short description of the jobs of signatories, as well as contain the date on which the contract was signed.

business contract

The part following the first page is referred to as the recitals, which features a brief explanation of the type of business the two parties are to agree on and usually covers not more than a paragraph. This part is followed by the specifications, where a detailed explanation of the business is given. This is the exact job portfolio and can span across several pages, with detailed explanations and descriptions.

Following the job portfolio is the payment. Here, there’s a clear statement of how the other party is to be remunerated. The amount can be stated, or in some cases, the determining parameters are stated. The sentence “Time is of the essence” would be added in case the carrying out of the job or contract hinges on time sensitivity. No matter the payment type or factors used, everything should be clearly spelled out in the contract.

All the above-mentioned points are crucial to the contract, however, that’s not all. There are a lot of legal issues to be added. The contract also contains the state jurisdiction that will be used if a dispute and legal suit arises. Additionally, the term of validity of the agreement is stated.

A business contract is a sensitive issue when it comes to business transactions. Before a final draft of the contract is reached, there are several discussions between the contracting parties, as well as their lawyers. In most cases, the contract agreement goes through a lot of deliberations, negotiations, and amendments, until all the parties are satisfied with the outcome before the contract is finally drawn. When all the parties mutually agree on the contents of the contract, then signatures are penned down. So far as the contract is a valid one, it is a general practice to ensure that each and every party to the contract has, in their possession, a copy of the agreement