One of the most important things for a homeowner to understand is that if you have been served with a summons for foreclosure, you are being sued. As in a game of tennis, once the ball is served, the other player must react and return the ball or lose the game for sure! In civil court, the party that brings the lawsuit is the Plaintiff and the person being sued is the Defendant. In a foreclosure case, the lender or bank is the Plaintiff and the homeowner is the primary Defendant. South Florida foreclosure defense attorney John M. Howe is an experienced business litigator and is prepared to put those skills to work for you.
In this situation, the Plaintiff has the burden of proof. This means that when a foreclosure case is defended, the lender must prove every element of its case by preponderance of the evidence. To prove its case, the bank must come forward with admissible evidence to prove that:
Foreclosure is when a lender utilizes the courts to obtain forced sale of real property because the borrower defaulted by failing to meet the repayment terms contained in the loan agreement and promissory note.
Banks are generally not in the business of buying and selling residential real estate. The bank does want your house. The bank wants your money or somebody’s money to reduce the outstanding balance on their non-performing loan.
Banks often make mistakes, and more and more have been caught cutting corners and fabricating necessary documents. By now, most Americans know that lenders made foolish loans to people they knew would not have sufficient income to repay the loans once the short term “teaser rate” was over or once the A.R.M. (adjustable rate mortgage) adjusted. Greedy lenders hoped that prices would keep going up forever so that if the homeowner could not pay the mortgage they could easily re-take and sell the property, payoff the loan, and make a loan to the new buyer.
Our firm, The Law Office of John M. Howe knows that most of the cases that the lenders win are done so by default. By the simple act of filing an answer, a default can often be avoided. In cases where the Plaintiff does not obtain a default there are only two ways for the bank to prevail:
Most Americans do not know about the mistakes banks make in the process of selling loans from bank to bank. In many cases the bank or mortgage broker was in such a hurry to sell the loan that proper sale or transfer formalities were not followed. In other cases the mortgage was bought and sold multiple times and as it was transferred from bank to bank it ended up in a collateralized mortgage trust and the original note was lost. Now, because the lender has lost the note, it lacks the critical evidence needed to prove its case. To make matters worse for the lender, many banks and mortgage brokers who previously owned the note (and might have it in their files) have closed or merged with other banks.
Homeowners might think they face a huge financial institution with unlimited wealth, but the truth is that the bank is only as strong as its weakest link. Florida banks have tens of thousands of foreclosure cases pending in court. In 2008, over 40,000 cases were filed in Miami-Dade alone. In 2009, there will be over 100,000 foreclosure cases filed in the tri-county area of Dade, Broward and Palm Beach counties. In Collier, Lee, and St. Lucie counties, the percent of homes in foreclosure and the ratio of foreclosure cases filed per local judge is even higher. The law firms that represent the banks have been overwhelmed with cases and have had to hire dozens of attorneys, many of whom have little experience in litigation. The enormous case loads being handled by the bank’s attorneys mean it is difficult for the attorney to devote a substantial amount of time to any one case. As such, bank lawyers often focus their attention on their easy cases against unrepresented homeowners in an attempt to pick the “low hanging fruit.”
To find out your options for defending your home from foreclosure, contact the Law Office of John M. Howe by filling out our online form or by calling us at 561-296-7772 or toll-free at 866-930-2938.
We are committed to fighting your fight, protecting your rights and the rights of your family to ensure that you receive justice and nothing less.