Affirmative Defenses to Foreclosure Lawsuits in Florida

Florida - Affirmative Defenses to Foreclosure Lawsuits in Florida

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Under Florida law, a homeowner's answer to a foreclosure complaint may consist of the affirmative defense that the plaintiff lacks legal standing to gain a judgment of foreclosure.

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Because many plaintiffs have no direct relationship with the primary lender, they are sometimes unable to produce the primary loan and assignment documents that are required of plaintiffs who ask judgments of foreclosure. Because many loans were oftentimes bought and sold by discrete loan servicers during the past some years, the loan and assignment documents have, in some instances, been misplaced.  This presents an opening for homeowners who are trying to stop a foreclosure sale.

The following is an example of how the "standing" defense may be asserted as an affirmative defense in a homeowners answer to foreclosure:

Plaintiff lacks standing to open this action. My primary mortgage was with _______ . This is not the same entity that commenced the instant action. Plaintiff has failed to furnish the original, or certified copies of, the note and mortgage and all relevant assignment(s). In Florida, only the owner and possessor of the mortgage and the note have standing to open a foreclosure action.
 
The "legal standing" defense is just one of some affirmative defenses that homeowners should think when responding to a foreclosure complaint. Other affirmative defenses that a homeowner should think include; (a) violation of the Truth in Lending Act; (b) Fair Debt range Practices Act violations; (c) incorrect notice or assistance of process; and (d) lost payments.

A homeowner should carefully communicate the lender's complaint.  Under the Florida Rules of Civil Procedure, a plaintiff seeking a judgment of foreclosure is required to attach a copy of the Note to its complaint.  A  Florida homeowner who is served with a foreclosure complaint without a a copy of the Note should enounce this as a defense. This may stop the foreclosure performance until the lender can furnish a copy of the note. In foreclosure actions, any delay in the proceedings can be useful because it gives the homeowner an added opening to find alternatives to foreclosure, along with a short sale or loan modification. 

In virtually all circumstances, it is useful for a homeowner to file an answer when served with a foreclosure summons and complaint.  Failing to answer a foreclosure complaint may supervene in the forfeiture of the legal defenses that are described above.

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