As I stated in my previous article, you have a limited number of options when you are served with a foreclosure on your home. For many, the best option may be to fight the foreclosure. “How is this possible?,” you may ask. “How can I fight my huge mortgage company with all of its tall building lawyers?”
The truth of the matter is that, despite the millions of dollars spent by the mortgage servicing industry on sophisticated software to process loans, record keeping tends to be sloppy and full of errors. Moreover, the largest mortgage companies hire law firms that do nothing but file foreclosures, and the work goes to the firm that bids the cheapest price per case. It’s not that these lawyers are stupid. More accurately, their volume case load prevents them from effectively litigating contested cases, and their client, the mortgage servicer, does little to assist in the prosecution of the foreclosure case.
Are you aware that your mortgage company is probably not the same company that actually loaned you the money to buy or refinance your home? How do you know if this mortgage company has been properly assigned your note and mortgage? The alleged assignment may be legally insufficient. Does your foreclosure complaint even have copies of the note, mortgage and assignment attached? Most likely, these documents are not attached, and may not even be in the possession of your mortgage company. On October 31, 2007, a federal district judge in Ohio dismissed fourteen (14) foreclosure cases filed by Deutsche Bank for this very reason.
Your mortgage company may be attempting to substitute your original note and/or mortgage with a copy. This is called a “Count to Establish Lost Documents.” There are strict legal requirements to establish a lost note or mortgage, and your mortgage company may be unable to meet the requirements if challenged.
Your mortgage company may have inflated the balance due by charging junk fees, such as a Broker Price Opinion (BPO), property inspections, force placed insurance and other “property preservation expenses.” Additionally, your mortgage company may have placed your payments into a “suspense account” and charged you late fees as if payments were never made.
The bottom line is that your mortgage company may have filed an improper foreclosure lawsuit. You may have valuable defenses and counterclaims against your mortgage company that could actually prevent foreclosure and even require your mortgage servicing company to pay you damages. You may even be able to force your lender to completely rewrite the terms of your note and mortgage, enabling you to keep your home.
Don’t sit on your rights! You have or will be served a copy of the foreclosure complaint by a process server. You typically have only 20 days to respond to the mortgage company’s complaint, so you need to see an attorney immediately if you wish to defend against the foreclosure!
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Last modified: October 22, 2012