Breathing Room.
It may be that it seems like the world is swirling around you. One thing that a good lawyer can do for you is to make the lender prove his or her case. The lender, of course, would rather you bury your head in the sand so they can get you out of your house as quickly as possible. If you fail to act promptly, you could be out of your house before you have a chance to resolve your dilemma in manner that is in your best interest. By securing defense counsel, you ensure that the lender will have to prove their case and, if applicable, answer to any unscrupulous lender practices that may have put you on the road to foreclosure in the first place. This leveling of the playing field will also provide you with the added benefit of additional time in your home. During this time, we can advocate on your behalf with your lender for a solution that will keep you in your home -- or if you prefer, we can advocate with your lender that it allow you to put together a short sale. No matter the case, we will work toward the goal you have in mind.
What Your Lender Does Not Want You to Know: Eleven Possible Defenses and Counter-Claims.
What can we do for you in Court? The answer to that depends on the specific facts of your case. But here are eleven thing we can do if the facts exist to support them:
- Raise as a defense the lender's loss of the Original Note.
- Raise as a defense improper assignments of the Note from the original lender.
- Raise as a defense that the mortgage is not in default because the loan servicing entity failed to properly apply payments.
- Raise any violations of the Truth In Lending Act, 15 U.S.C. §§ 1601, et seq., if the loan is less than three years old. Common violations include collection of governmental fees that are not disbursed to the government, failing to include in the finance charge those fees incurred in the closing of the transaction, and failure to include in the finance charge under-the-table fees paid to the mortgage broker.
- Raise any violations of the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601 et. seq., and its implementing Regulation X, 24 C.F.R. Part 3500, issued by the Department of Housing and Urban Development. Some common violations for which there is a private cause of action for homeowners relate to failure to properly notice changes in loan servicing and properly applying loan during such a change, and failure to properly respond to inquiries relating to loan servicing. Another possible violation for which there is a private cause of action is the Act's prohibition of kick-backs and unearned fees. Other violations include the lender's failure to provide a good faith estimate and over-escrowing funds beyond the limits of the Act and Regulation. While there does not appear to be a private cause of action for these violations under the Act and Regulation, these violations may be able to be used to form a claim under the Florida Deceptive and Unfair Trade Practices Act, Chapter 501, Florida Statutes (see below).
- Raise any violations of the Fair Debt Collections Practice's Act, 15 U.S.C. §§ 1692. Common violations of the Act include attempts to add attorney fees or servicing expenses not authorized by law or contract and inaccurate credit reporting.
- Raise any violations of the Fair Housing Act (Title VIII) and 42 U.S.C. §§ 1981-2. A common violation of the Act is "reverse redlining" where minorities are granted credit on unfavorable terms because of their minority status.
- Raise any violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681. A common violation of the Act is the lender falsely responding to the credit bureaus in response to a borrower's claim that the information being reported is not accurate.
- Raise any violations of the Florida Deceptive and Unfair Trade Practices Act, Chapter 501, Florida Statutes. Common violations of the Act include addition of last minute fees and charges at closing, bait-and-switch tactics regarding interests rates and loan products, payment of yield spread payments to mortgage brokers, imposition of unauthorized charges, misrepresenting the annual percentage rate or finance charge, misrepresenting the terms or time during which closing must take place, over-escrowing, improperly allocating payments, interfering with the borrower's right to rescind, and making loans which cannot reasonably be expected to be repaid and are being made for the purpose of reselling the loan.
- Raise as a third-party claim a breach of fiduciary duty of the mortgage broker who engaged in predatory lending in your case and who accepted a "yield spread premium."
- Raise any equitable defenses (that is defenses based on the idea of doing what is just and right) and violation of the obligation of good faith and fair dealing.
