We are live in troubled times. Our economy is in chaos, unemployment is at an all-time high and we are experiencing the highest foreclosure rates since the Great Depression.
Many people are of the understanding that there is little you can do to defend against foreclosure. This is not true. I would first like to warn any person who is faced with a mortgage foreclosure to seek the advice of an attorney who is well versed in these issues.
When you are served, you will be served by a process server who is an employee or is contracted by the lender to serve you. He will tell you that all you need to do is write a letter in response to the summons/complaint within 20 days. This is a trap engineered by the attorney group that is representing the lender. Once you submit a letter, you waive all legal defenses and a summary judgment can immediately be brought against you and you will be removed from your home in the fastest possible time allowed under the law.
Also, do not vacate your home. In many cases people are being contacted shortly after a suit is filed and are told that the home will be sold on a certain date. This is not true. Only a court can set a date of sale. Remain in your home.
In order to protect yourself, a legal defense must be filed that raises all legal defenses within 20 days of the service of the complaint against you. Approximately 90 percent of all mortgages being foreclosed will be in a format such as follows:
"National Bank as Trustee for Home Loan Trust, 2005-FW2."
This will not be the lending institution that initially loaned you money and in all likelihood you will never have heard of this trust. It is my understanding that many of the foreclosure groups which initiate these foreclosures are paid at a higher rate to complete a foreclosure as quickly as possible as opposed to a foreclosure which will require more time to defend. As such, those foreclosures in which legal defenses are filed are not pursued as rapidly as are the ones when no answer is filed.
In many instances, foreclosures are filed prior to an assignment of the mortgage to the plaintiff. As such, the plaintiff does not have legal standing to file the complaint and the complaint should be dismissed and filed again. There are many other legal defenses that can be raised that are beyond the scope of this article.
Remember this — time is your friend. The benefits of a vigorous defense are numerous. By delaying the foreclosure, you will be able to set aside the money which can be used when seeking a reinstatement or, at worst, will be available to you for the purpose of acquiring another home.
Also, the persons who put up a vigorous defense have increased leverage and are more likely to have success at reinstatement in the future. Additionally, in most foreclosures, the plaintiff is seeking a money judgment that can be avoided as well. Again, if a foreclosure complaint is filed against you, please seek counsel.
This is Law Week and the Hernando Bar Association plans multiple activities in which the public can ask questions of attorneys.
• Ask a Lawyer, 9 a.m. to noon today in the County Commission chambers in the Hernando County Courthouse. This is an event in which a number of lawyers will be available to answer questions from the public regarding any legal issues.
• Hernando County Bar Association Golf Tournament on Thursday. This event will take place at the Brooksville Country Club to raise funds for a scholarship to be presented to local students who plan to pursue a career in the legal field. For information, call (352) 683-1963.
• A seminar on wills, trusts and estates will be 9 to 11 a.m. Friday at the commission chamber in the Hernando County Courthouse.
William B. Eppley is an attorney in Brooksville.