A foreclosure action is a civil lawsuit. The lender or bank is the Plaintiff and homeowner/borrower is the primary Defendant. The Plaintiff has the burden of proof.
When a foreclosure case is defended, the lender must prove every element with admissible evidence to prove that the homeowner executed the original mortgage and note and that each time ownership of the mortgage was transferred all legal formalities were complied with and the note was properly assigned and recorded. The lender may also have to prove that proper disclosures were made to the homeowner/borrower prior to the real estate closing where the loan documents were signed.
Although a homeowner enters foreclosure due to lack of payment, it does not mean they are powerless to take on the large banks. Banks make mistakes all the time. Since the real estate crash many banking giants/lending institutions (Countrywide, Wachovia, Washington Mutual, Lehman Brothers, Fannie Mae, and Freddie Mac) have gone bankrupt, were taken over by the government, or taken over by the FDIC and sold to other banks. Throughout the process of selling the loans from one bank to another, proper formalities with respect to the sale and transfer of the loan were not complied with.
Lenders and mortgage brokers created a “bubble” controlling the real estate market and assumed market prices would continue going up. They would offer Americans loans that they knew the borrower was not qualified to obtain and did not have sufficient income to repay. Once the A.R.M (adjustable rate mortgage) adjusted, the homeowner was unable to make their monthly payment thus causing the homeowner default. More often than not the mortgage brokers were more concerned with commission then the best interest of the homeowner.
The banks have thousands of foreclosure cases pending in Miami-Dade, Broward and Palm Beach counties. The law firms representing the banks have such an enormous case load that the attorney handling your case for the bank cannot devote much time specifically to your case. This is a benefit to homeowner who has retained an experienced foreclosure defense attorney. The banks typically focus their attention on the unrepresented homeowners.
For questions about real estate law in South Florida, please contact The Hershey Law Firm, P.A at (954) 303-9468 in Fort Lauderdale to schedule your free consultation.