Last Update: 10/10/20
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.
The caveat here is that most of these defenses are considered affirmative defenses, which means if a homeowner fails to properly raise them in their answer to a mortgage foreclosure action they may waive their right to use these defenses. For example, if a homeowner doesn’t raise an affirmative in their answer and thereafter asserts it in response to a summary judgment motion brought by the bank then the homeowner may not be able to raise the defense at the hearing (however, a homeowner can always seek to amend their answer to raise an affirmative defense – but don’t wait until the hearing to do so).
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, cancellation, release, incorrect legal description, among others.
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 homeowner 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. However, be aware there are issues related to this 5-year statute of limitations, like the one raised in the Bartram case.
Also, please note, under Florida Statute 95.031, the SOL 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 or it may be the earlier of the date when the acceleration clause is invoked or stated date of maturity. Smith v. Federal Deposit Ins. Corp., 61 F.3d 1552, 1561 (11th Cir. 1995).
Bank Fails to Follow State And 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 federal statutory foreclosure defense for the borrower in a Florida foreclosure lawsuit. Some of the applicable programs here include the Federal Truth In Lending (TILA), which allows for recission, as well as:
Home Ownership Equity Protection Act (HOEPA):
Here, if the first mortgage lien has a high interest rate (the threshold amount varies depending on the loan amount) 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 defense and has a right to rescind the loan. (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 specific documents to be delivered to a borrower as part of the closing and after closing. If these documents are not correct, or not provided, then the borrower has specific legal remedies as defined in the statute.
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 mortgage should be reviewed, paragraph by paragraph to determine what obligations and promises were made by each side (the “covenants”). The particular facts surrounding the mortgagor’s (borrower) actions must be evaluated to determine if the security of the bank has been impaired.
Oftentimes, borrowers engage in technical defaults, like quit claiming an interest in the property to a family member, or they make late payments. Unfortunately, these technical defaults become the basis for some foreclosure lawsuits on the theory that the bank’s interest is being impaired.
There are times when the borrower has paid his or her monthly mortgage payments late, but the lender still accepts the payments. If the lender proceeds to file a foreclosure lawsuit, the borrower can raise this fact as an equitable estoppel defense if 1) he or she raises the defense in its answer and 2) can prove to the court that the bank has accepted the late payments. For more, read Payment Defense to Foreclosure.
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).
A homeowner can “tender” payment to the bank as a way of defending against a Florida foreclosure lawsuit. Essentially, tender means to pay the bank the amount that is due and bring the account current. The amount due can vary depending on if the bank has filed foreclosure (thus, incurring attorney fees, costs, and additional interest expenses) or if it has accelerated the loan.
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 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).
For more here, see: Conditions a Bank Must Satisfy Before Filing a Foreclosure in Florida
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 a 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 48.20, 48.031(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 any way, 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 more issues that can be raised to defend a Florida foreclosure lawsuit, like usury and duress. Each case is unique and each case must be analyzed according to its specific circumstances. However, a homeowner should know that Florida foreclosure law is constantly evolving resulting in some defenses no longer being available or some becoming more difficult to assert.
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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