It used to be that a foreclosure was pushed through the court system and basically given a rubber stamp of approval. That’s quickly changing, as not every foreclosure is conducted according to the law. Some lenders are unethical in their proceedings and do not follow proper protocol. When this happens, an attorney can sometimes help you stop foreclosure from continuing.
Some valid defenses to foreclosure exist under the law, and one of the most common ones is that the terms of the loan are unconscionable. This means that they are so unfairly balanced that they shock the conscious of an ordinary person. Some of the criteria that can be used to determine whether or not the terms are unconscionable include uncovering exceptionally high interest rates and hidden fees that would make it practically impossible to pay the note as required.
If the lender fails to follow the right protocol, this could also be a bar to foreclosure. For example, if a formal complaint was never filed, this could bar your creditor from making any further moves. Having a judge rule in your favor on issues of procedure will not necessarily stop the foreclosure process, but instead it will require that the other party begin again from scratch in most cases.
Service members on active duty have some level of protection available under the Service member’s Civil Relief Act. This act requires lenders to conduct their proceedings in court, and you may also request that foreclosure actions be deferred until after your period of active duty ends by petitioning the court in writing.
Lenders can sometimes be prohibited from foreclosing because they do not have legal standing to take this action. One of the primary requirements is that lien holders assert their rights to enforce the terms of the mortgage. When the mortgage has been bought and sold numerous times, this can sometimes be difficult for the lender to do, and this could effectively buy the homeowner a bit of time to get his or her finances in order again.
Foreclosures are not automatically imposed just because you are behind on your mortgage payment. You still have rights under the law, and I will help you exercise them in a court of law. If you are facing foreclosure, contact us for assistance.