Foreclosure Defense

Being behind on payments is a financial status, but an active foreclosure is a legal status. A foreclosure defense attorney intervenes the moment the lender asserts its right to accelerate the debt. At this stage, the "breach letter" or "notice of intent to accelerate" must be forensically reviewed for compliance with the terms of the original Deed of Trust. Small errors in the timing or content of these notices can be grounds for an immediate motion to dismiss.

In a foreclosure defense context, the timeline is everything. A Notice of Default (NoD) is the lender's opening move in the litigation. A Notice of Sale (NoS) is the endgame. Defending the case during the NoD phase allows for "discovery," where we can force the bank to produce the original note and the history of assignments. Waiting until the NoS phase limits our options to emergency injunctions or bankruptcy filings, often bypassing the chance to challenge the bank’s standing entirely.

To foreclose, a lender must prove they are the "Holder in Due Course" of the original promissory note. In many cases, the original note was lost or never properly transferred between the various entities that owned the mortgage trust. If there is a "gap" in the assignment history, the lender lacks "standing" to sue. We conduct a clinical audit of the county recorder's records to identify these gaps, moving to dismiss the case when the lender cannot prove a continuous, legal chain of ownership.

The Mortgage Electronic Registration Systems (MERS) was created to facilitate the rapid trading of mortgages, but it frequently results in assignments that are legally invalid. We look for evidence of "robo-signing," where bank employees sign thousands of assignments without personal knowledge of the facts. If an assignment was recorded after the foreclosure was initiated or by an entity that had already dissolved, we weaponize these defects to invalidate the foreclosure action.

Servicers frequently make catastrophic errors in how they apply payments, especially when a homeowner is in a "trial modification" or a "forbearance" period. We investigate the "suspense account," where many servicers hide payments instead of applying them to the principal and interest. If the servicer incorrectly calculated the escrow balance or applied late fees in violation of the contract, we utilize these errors as an affirmative defense to the foreclosure.

Under the Real Estate Settlement Procedures Act (RESPA) and the Consumer Financial Protection Bureau (CFPB) rules, lenders are strictly prohibited from "dual tracking." This occurs when a lender proceeds with a foreclosure while a complete loan modification application is still under review. If a lender files a "Notice of Sale" while you are in active negotiations, they have committed a federal violation that can stop the foreclosure and potentially entitle you to damages.

In states like New York, Florida, or Illinois, the lender must file a lawsuit to foreclose. This is an inherently defensive environment for the homeowner. We file an "Answer" to the complaint, asserting "Affirmative Defenses" such as the statute of limitations or the lender's failure to provide a "Notice of Default" as required by the contract. This forces the bank into a long, expensive discovery process that often leads to a favorable settlement or dismissal.

In states like California, Texas, or Arizona, the lender does not need a court order to foreclose. To defend the home, we must take the "offensive" by filing our own lawsuit against the lender and the trustee. We seek a Temporary Restraining Order (TRO) and a Preliminary Injunction to stop the sale. This "wrongful foreclosure" litigation puts the burden of proof back on the lender to justify their right to sell your property in the absence of judicial oversight.

Chapter 13 bankruptcy is the gold standard for foreclosure defense for those who wish to keep their homes. It allows you to "cure" the total amount of your mortgage arrears over a three to five-year payment plan. As long as you make your plan payments, the lender is legally prohibited from foreclosing. We use the Chapter 13 process to audit the lender's "Proof of Claim," often finding that the

The choice of bankruptcy chapter depends on your primary objective:

• Chapter 13: Use this to cure a default and stay in the home long-term.
• Chapter 7: Use this as a tactical delay. A Chapter 7 filing stops the sale immediately (via the Automatic Stay), providing several months to negotiate a "short sale" or "deed in lieu" without the pressure of an imminent eviction.

Under RESPA, we issue a "Qualified Written Request" (QWR) or a "Request for Information" (RFI) to the servicer. This federal tool forces the bank to provide a full "Life of Loan" accounting history. If the bank fails to respond or provides inaccurate data, we use that failure as evidence of a "Servicing Violation" that can derail their entire foreclosure case.

In high-stakes foreclosure defense, we take depositions of the bank’s "Corporate Witnesses." These individuals are often poorly prepared and lack actual knowledge of how your loan was handled. By exposing their incompetence and the automated, unverified nature of their record-keeping, we create the "triable issues of fact" necessary to survive a "Motion for Summary Judgment" and move the case toward a trial.

In many states, if your home sells for less than you owe, the bank can sue you for the difference. This is a "Deficiency Judgment." A primary goal of our foreclosure defense is to ensure that any exit strategy, such as a short sale or deed in lieu, includes a "full waiver of deficiency." We ensure that when you walk away, you walk away with zero remaining liability to the bank.

If saving the home is no longer the goal, we utilize "Cash for Keys" negotiations or "Consensual Foreclosures." This allows the homeowner to vacate the property on their own terms, often receiving a relocation incentive from the bank in exchange for a smooth transition and a waiver of all legal claims. This protects your record from the catastrophic impact of a "Forcible Entry and Detainer" (eviction) action.