Foreclosure Defense Law
Contrary to what most think, foreclosure defense is an extremely complex area of the law for lawyers to practice. While banks would have you believe that foreclosure comes down to a simple issue of the borrower not being able to make payments, there are actually multiple things that could stand in the way of the bank taking your home – things the bank did wrong. Those things come from statutory violations of important mortgage disclosure laws, to servicing abuse, to not delivering on promises.
Evaluating a foreclosure case requires considering a number of different areas of the law. This means a foreclosure case can become fairly complex quickly, and may require a substantial amount of time to litigate. Some statutory consumer protection statutes offer small amounts of damages (like RESPA), so a foreclosure defense case may require bringing multiple small violations in one lawsuit. Prosecuting all these small claims sometimes means substantial time, energy, and resources are needed to litigate the case. The good news for you is that because foreclosure defense touches on so many areas of the law, there are generally more defenses available to you to fight foreclosure. While it is unlikely that you will win a free home from litigation, wining on enough claims to reduce your principal balance may be possible and sometimes likely. The number of venues for foreclosure defense also means a greater likelihood that the bank will be required to pay your attorneys’ fees and costs, saving you money, and enabling you to hire exceptionally qualified counsel.
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.
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. He recently launched a website for attorneys to evaluate over 20 legal defenses to foreclosure, point-by-point, at http://www.checklistforeclosure.com. If you would like to speak with Troy Doucet about your case, please contact him today either by phone at 614.944.5219 or by using our easy online form.
Here is a Franklin County, Ohio foreclosure timeline modified from the Franklin County, Ohio’s Homeowner Helpline website, located at http://www.franklincountyohio.gov/commissioners/homeowner-helpline/foreclosure-timeline.cfm. 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.
First 30-90 Days
Owner is behind in mortgage payments.
30 Days Before the Lender Files Foreclosure
Lender mails you a letter indicating you are in default and that you have thirty days to respond or foreclosure will begin. If the lender does not mail you this letter, you may have a defense to foreclosure.
30 Days Later
Legal proceedings begin when bank files a complaint in court (foreclosure lawsuit).
1-14 Days Later
You are served a copy of the lawsuit by registered mail or by personal courier.
Within 28 Daysof Service
You have 28 days from the receipt of the foreclosure lawsuit (complaint) to respond or file an answer.
You should contact a foreclosure defense attorney immediately! Attorneys need some lead time to draw up the responsive paperwork, so don’t wait until last minute to call a foreclosure attorney. You might have foreclosure defenses that run out under statutes of limitation, so you should not delay, especially if your mortgage was a refinance that closed in the last three years.
You can request foreclosure mediation and for an extension of time to file an answer to the foreclosure lawsuit in some counties instead of responding with an answer. In Franklin County, Ohio, this will enable you an additional 120 days (as of 11/2010) to respond and forces your lender to talk with you in mediation. They will not be able to continue with the foreclosure action until mediation is complete. A free form to make this foreclosure mediation request is at http://www.franklincountyohio.gov/commissioners/homeowner-helpline/assets/pdf/request-for-mediation.pdf.
Within 5-30 Days, if You Do Not Answer or Request Mediation
The mortgage company attorney files a motion for default judgment if you do not respond.
The court can immediately render a default judgment decision and issue a decree.
After obtaining a judgment against you, the bank’s attorney files a legal form known as a “praecipe” with the clerk of courts ordering the sale of the property.
Within 3 Days
Within 3 days of filing the praecipe, the clerk delivers it to sheriff.
During the Next 3-7 Months (depending on the County)
An appraisal of the property is ordered and completed.
A sale date is set.
Sale is advertised in the Daily Reporter for 5 weeks.
Day of Sale
Your property is auctioned at the county courthouse, with the starting bid usually equaling two-thirds of the value of the appraisal done by the sheriff (tax sales start lower).
Sheriff will auction property to highest bidder.
Sales occur every Friday morning at 9 AM, in Franklin County, Ohio. The property sales information will be available online at http://www.sheriff.franklin.oh.us/.
Within 30 to 60 Days of Sale
A Confirmation of Sale is issued by the court, which orders a sheriff’s deed be prepared and given to the new owner, who will next file a right to file for writ of possession.
7-30 days after confirmation of sale
The Sheriff’s deed is issued.
New owner files for writ of possession.
Sheriff will give you 7 – 14 days to move out of your home – this may be extended for hardship by contacting your County’s sheriff’s office.