Your lender just served you with a foreclosure complaint. So, what next? You have a right to answer it and fight it. You can usually stop foreclosures using affirmative defenses in your response. However, you can stay in your home longer and with any luck beat your foreclosure using these affirmative defenses,

What Are Affirmative Defenses?

An affirmative defenses in a foreclosure case are facts that defeats the consequences the lender’s claim. For example, your lender will charge that you haven’t been paying your mortgage. Thus, they believe they are entitled to foreclose because of that. An affirmative defense wouldn’t deny that. Although, depending on the case, the answer probably would. Therefore, your answer would basically say that it doesn’t matter for some reason. An example of this would explaining why the plaintiff doesn’t have the right to foreclose.

There are many different affirmative defenses. You can also write your own response to the complaint. However, you should retain an experienced attorney do it. They will know which affirmative defenses are relevant for your case. 

Some Common Affirmative Defenses Used In Judicial Foreclosures Include:

Lack of Standing

Your lender must prove that they are the ones legally entitled to foreclose on you. That, in legal terminology, is called standing. Lender errors, improper or incomplete documentation, or fraud may cause them to have a hard time proving their standing. Most judicial foreclosure states require the plaintiff to own and hold the mortgage and note at the time they sue. If their documents don’t show that they did, they can’t take your property.

Foreclosure Defense Network and our lawyers also routinely include lack of standing as a affirmative defense when answering foreclosure complaints.

Second Affirmative Defense

Standing. Plaintiff lacks standing to prosecute the Complaint. At the time Plaintiff filed the Complaint, Plaintiff was not entitled to enforce the Mortgage and Note.

Failure of Condition Precedent

If the plaintiff fails to comply with the requirements in the mortgage contract, such as to serve the defendant with a notice of default or intent to accelerate as stated in the mortgage contract, they may have to start the process over.

Unfair Lending Practices

If your lender deceived you or failed to disclose required information, you may be able to challenge the foreclosure because. The federal Truth In Lending Act (TILA) requires lenders to disclose the annual percentage rate and payment schedule. They are also required to disclose other information about the loan. Additionally, lenders who violate TILA face stiff penalties and fines.

Not The Real Party In Interest

When a mortgage agreement drawn up, the homeowner is required to sign a promissory note. This details how the loan is going to be paid back. Whoever is assigned the note and mortgage is the one with the right to foreclose. However, problems arise when the mortgage and note are assigned to servicers or MBS trustees. Usually, the right documentation or original note get lost in shuffle. Therefore, if the ownership of your mortgage isn’t clear, you may be able delay foreclosure.

Unclean Hands

Unclean hands is when:

“The defendant argues that the plaintiff is not entitled to obtain an equitable remedy because the plaintiff is acting unethically or has acted in bad faith with respect to the subject of the complaint —that is, with “unclean hands.”

The defendant has the burden of proof to show the plaintiff is not acting in good faith. The doctrine is often stated as “those seeking equity must do equity” or “equity must come with clean hands”.”

An unclean hands defense could also be used if you can proven that the lender caused the default. Therefore, they are not entitled to an equitable remedy. An example of unclean hands could be if your loan servicer doesn’t properly apply your mortgage payments to your loan.

Other affirmative defenses also include: 

• Unfair lending practices.
• Failure to state a cause of action.
• Unconscionable terms.
• Foreclosing on an active service member.
• Failure to properly invoke the court’s subject matter jurisdiction.
• Verification of complaint.
• Statutes of limitations.
• Contributory negligence.
• Assumption of risk.
• Failure to mitigate damages.

You also have rights under the law that can help you fight foreclosure. However, they won’t help you if you don’t know what they are and how to use them. Again, it would be best to have an experienced attorney help you respond to a foreclosure complaint.

Call us at 1.888.214.6377 to learn more.