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In Florida, foreclosure defenses (for residential foreclosures) can be categorized into three different arguments.  Those arguments focus upon either (1) the validity of the mortgage; (2) whether or not there has been a “default” under the law; and (3) if the lender had a legal right to accelerate the debt under the circumstances of the case.

South Palm Beach condominium lakeside

Florida condos are often the subject of foreclosure lawsuits.

1.  Attacking The Validity Of The Mortgage

Foreclosure defendants are entitled to use any contractual defense that pertains to their circumstances. These defenses include issues like fraud, the statute of limitations and standing.

Fraud

If the borrower can demonstrate that the home loan was based upon fraud on the part of the lender or its agents, then the foreclosure action should fail.  However, proving fraud is not easy to do because the elements of fraud must be proven with particularity.

A successful fraud defense allows the home owner to obtain rescission of the mortgage or alternatively, affirm the deal and ask for money damages.  See, Meyerson v. Boyce, 97 So. 2d 488 (Fla. Dist. Ct. App. 1957).

Bank Fails to Meet Deadline in the Statute of Limitations

Every civil action filed in Florida has a deadline.  If a foreclosure lawsuit is filed after the deadline has passed, then it is barred by operation of law.  This deadline is set in our “statute of limitations.”

Under Florida Statute 95.11(2)(c), all mortgage foreclosure lawsuits must be filed within five (5) years. If the bank files the foreclosure lawsuit after five years have passed, then the borrower can assert a limitations defense asking that the case be dismissed as a matter of law.

Under Florida Statute 95.031, the time starts to run when the last element constituting the cause of action occurs.  In foreclosure lawsuits, this can be when there was a first written demand for payment, see Ruhl v. Perry, 390 So.2d 353 (Fla. 1980) It may be the earlier of the date when acceleration clause is invoked or stated date of maturity. Smith v. Federal Deposit Ins. Corp., 61 F.3d 1552, 1561 (11th Cir. 1995).

Standing:  MERS Issue

In Florida, the Mortgage Electronic Registration Service, Inc. (MERS) was a notorious player in the rampant Foreclosure Fraud Crisis of the early 2000s.  See, e.g, Foreclosure Fraud Cases: Banks and Mortgage Servicers Have an Achilles Heel, Title Problems Related to MERS.

There are numerous issues for any foreclosure involving MERS.  For instance, it may well be that merely having MERS listed as a party on the mortgage as a “nominee” may be enough to defend against the foreclosure lawsuit.

Having MERS involved may in and of itself negate the standing of the lender attempting to foreclose on the defendant’s property.  Failure to have standing means the lender has no legal right to proceed with the cause of action.

2.  Has There Been A Legal Default?

Another collection of foreclosure defenses available to a borrower is determining whether or not there has been a legal default under the mortgage.

The entire loan package is investigated, reviewing paragraph by paragraph the closing documents and legal instruments to determine what obligations and promises were made by each side (the “covenants”).  The particular facts surrounding the inception of the loan as well as all of the mortgagor’s actions must be evaluated.  See, Spector v. Vent Vue Window Corporation, 115 So. 2d 570 (Fla. Dist. Ct. App. 1959).

Often, late payments are the basis of filing a foreclosure lawsuit.  This category of foreclosure defenses works to challenge the validity of that action.

Payment

There are times when the borrower has paid his or her monthly mortgage payments, but the lender does not accept or honor them.  If the lender proceeds to file a foreclosure lawsuit, the borrower has a valid foreclosure defense if he or she can demonstrate to the court that the borrower has met his or her pending obligations under the loan, insofar as they existed before the lender accelerated the debt.

The act of delivering a payment is sometimes called “tender,” and it can be a valid defense to a Florida foreclosure action.  For more, read Payment Defense to Foreclosure.

Bank Fails to Follow Federal Law Covering Home Loans

The home loan industry is heavily regulated, and many different federal laws have been passed by Congress not only to help borrowers get home loans but to oversee the actions of mortgage lenders.  The failure to follow any of these federal laws, rules, or regulations by the mortgage lender can become a valid foreclosure defense for the borrower in a Florida foreclosure lawsuit.  They include:

Home Ownership Equity Protection Act (HOEPA)

Here, if the first mortgage lien has an interest rate that is higher than an 8%, then it is a high rate loan covered by HOEPA.  Borrowers must get special disclosures for these kinds of mortgages.  The disclosures must be given at least 72 hours before closing on the loan.

Under the terms of HOEPA, if its provisions are not followed to the letter by the lender, then the borrower has a right to rescind the loan as well as a foreclosure defense.  (The state version of HOEPA, the Florida Fair Lending Act, is found in Florida Statutes 494.001 et seq.)

Real Estate Settlement Procedures Act (RESPA)

This federal law requires a specific and detailed closing statement form be completed by the lender as part of the closing.  If the detailed form is not complete, not correct, or not provided, then the borrower has specific legal remedies as defined in the statute.  See, Big Changes In Florida Real Estate Closings: The HUD-1 Settlement Form Replaced With TRID.

Home Affordable Modification Program (HAMP)

Under HAMP, lenders cannot file a foreclosure lawsuit (or take the next step in the foreclosure process) if the borrower is involved in a modification plan, or other loss mitigation procedure, as defined by the statute.  This law was passed as part of the Foreclosure Fraud bailout, to try and resolve the huge numbers of foreclosures that were being filed by lenders in Florida and elsewhere in the country.

Under the law, mortgages can be modified and mortgage payments are reduced to a ratio that corresponds to a borrower’s gross monthly income.  Foreclosure proceedings cannot continue once HAMP is in place.  To do so is to provide the borrower with a foreclosure defense defined by this Federal statute.

See:  HAMP Trial Period Plan Lawsuits: Borrowers Sue Banks for Failing to Do the Right Thing in TPP Loan Modification as Lenders Fail To Follow HAMP Requirements

3.  Was There A Legal Right To Accelerate The Debt?

The third category of foreclosure defenses is similar to the arguments against the legality of the default.  Here, longstanding principles of fairness (equity) are applied to the situation.

Over time, Florida courts have built legal principles consisting of equity defenses which apply both in standard contract cases as well as in foreclosure actions.  These include equitable estoppel, waiver, laches and unconscionability.  Here, the court will deny acceleration of the debt based upon equitable reasons.

For instance, if the facts show that there was reliance by the mortgagor on statements of acts of the mortgagee relative to the mortgage relationship, then there will not be a valid acceleration of the debt under equitable principles of estoppel and waiver.   See, Edelstein v. Peninsular Lumber Supply Co., 247 So. 2d 721 (Fla. Dist. Ct. App. 1971).

Unclean Hands Doctrine (Unconscionability)

In Florida, since mortgage foreclosure lawsuits are considered equitable proceedings, (See – Cross v. Federal Nat’l Mtg. Ass’n, 359 So.2d 464 (Fla. 4th DCA 1978)), one of the most common equitable defenses in Florida jurisprudence is the doctrine of “unclean hands.”  If the borrower (defendant) can provide admissible evidence that the lender (plaintiff) was involved in illegal or improper activity, which may or may not include fraud, then the action has been filed with “unclean hands.”

The defendant can successfully defend against a foreclosure action with an unclean hands defense.  See, e.g., Adam Smith Enterprises, Inc. v. Barnes, 539 So.2d 549 (Fla. 2d DCA 1989).

Procedural And Due Process Failures As A Valid Foreclosure Defense

In addition to the above substantive categories of defense in a residential foreclosure, the defendant may find a successful argument against the bank’s attempt to foreclose on their home based upon procedure and due process failures.

Foreclosure actions are lawsuits that must strictly comply with the procedural requirements established to protect the borrower against the bank.  Here, things like failure to give the requisite notice, or service of process, can result in the dismissal of the proceedings.  

Bank Failed to Provide Proper Legal Notice to Borrower

Under Florida law, statutes have been passed that contain very specific provisions on how the bank must give formal notice of default on the home loan.  For instance, there is a 30 day notice of default that must be given before the bank starts the foreclosure process.

Notice of default has to be given long before the lawsuit is filed. If the bank fails to meet that legal notice requirement, then the defendant can request that the foreclosure action be reversed or dismissed.  See, e.g., Rashid v. Newberry Fed. Sav. & Loan Assoc., 502 So. 2d 1316 (Fla. Dist. Ct. App. 1987), appeal after remand, 526 So.2d 772 (Fla. 3d DCA 1988).

Bank Fails To Provide Proper Service Of Process Of The Lawsuit

In a foreclosure action, the bank must follow all the legal formalities of any other civil plaintiff.  This includes meeting the procedural requirements for service of process upon the borrower as party defendant.

Under Rule 1.070 of the Florida Rules of Civil Procedure, the bank has 120 days to serve the borrower with a summons, and the time begins to run on the date that the lawsuit was filed with the clerk’s office.  The person who “serves” the borrower is called the “process server.”

This person has legal duties under Rule 1.070 and the Florida Statutes, including Florida Statutes 48.2048.031(5).  He or she must do things that include:

  • Provide copies of the filing documents to the borrower-defendant;
  • These copies must be true, correct, and complete;
  • The borrower-defendant must be told what the documents are (what they contain);
  • The server must give the borrower his official identification number as a process server in the State of Florida;
  • Not try and serve the documents on a Sunday;
  • Meet specific notice requirements if the borrower cannot be found and service is done by mail; and
  • The server must initial the copies given (“served”) to the borrower.

If these procedural requirements for service of process in a foreclosure lawsuit are not followed, then the defendant can move the court to “quash” the service and dismiss the entire case based upon defective or insufficient service of process.

What If The Bank Files A Procedurally Flawed Complaint?

It is surprising how often lenders, with their staff of attorneys as well as outside counsel, have failed to file a proper pleading in a foreclosure lawsuit.  First of all, as in any civil matter, the pleading rules of the Florida Rules of Procedure must be met.

Under Rule 1.130, the lender must attach both the mortgage and the promissory note to the pleading asserting its foreclosure cause of action (the “complaint”).  If either of these documents is not attached to the document, or if they are incomplete in anyway, then the procedural rules have not been met.

Moreover, the plaintiff must affirm (“verify”) that the foreclosure complaint is based upon facts “alleged therein” that are “true and correct.”  Failure to have a duly authorized representative of the lender-plaintiff sign the complaint “under penalty of perjury” means that the complaint fails to meet the procedural requirements.  See, Florida Rules of Procedure 1.115(e).

All other provisions of Florida Rule of Procedure 1.115 must also be met, as the specific procedural rule governing mortgage foreclosures in Florida.  These include requirements that the complaint must:

  • Contain affirmative allegations expressly made by the claimant at the time the proceeding is commenced that the claimant is the holder of the original note secured by the mortgage; or allege with specificity the factual basis by which the claimant is a person entitled to enforce the note under section 673.3011, Florida Statutes; and
  • If the claimant seeks to enforce a lost, destroyed, or stolen instrument, an affidavit executed under penalty of perjury must be attached to the claim for relief.

Any failure of the foreclosure complaint to meet the procedural requirements under the Florida Rules of Procedure provides the borrower with a valid foreclosure defense and grounds to seek dismissal of the case.

Read: Lost Notes in Florida Foreclosure Cases: Banks Must Prove Their Case With Valid Legal Documents

Bank Failed To Properly Assign The Mortgage Or Endorse The Note

If the mortgage has changed hands between financial institutions (one bank sells the loan to another), then there needs to be proper corresponding assignments of the mortgage and endorsements to the note (or the Allonge).

Failure to follow these basic legal concepts can give the borrower facing foreclosure the defense of “standing.”  Here, the plaintiff’s standing in the foreclosure lawsuit is challenged because the bank cannot provide the correct and complete documentation of its legal right to foreclose at the time that the foreclosure action was filed.

See, e.g., our past success using this foreclosure defense against Bank of America in “Florida Foreclosure Appeal on The Issue of Standing; Victory Against Bank of America.”

What Should You Do?

There are other foreclosure defenses that may apply to someone facing a foreclosure lawsuit here in Florida.  Each case is unique and each case must be analyzed according to its specific circumstances, including the background paperwork and everything filed in both the civil lawsuit records and the real estate records for the property itself.

A good piece of advice if you are dealing with a foreclosure in Florida, is to speak with an experienced Florida real estate lawyer to learn about your rights, including learning if any of the above foreclosure defenses apply to your loan. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

For more, read Ocwen Filing Bad Foreclosure Lawsuits: Is Ocwen Servicing Your Mortgage?

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Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

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