Foreclosure Solutions
Homeowners must understand a foreclosure lawsuit is simply a lawsuit between a bank and the homeowners. Homeowners have rights and banks have an extremely heavy burden to meet to be successful in a foreclosure lawsuit. When a homeowner is served with a Summons and Complaint, he or she must submit a written Answer to opposing counsel and file the Answer with the court. The homeowner should be asserting affirmative defenses and counterclaims against the financial institution in his or her Answer. The homeowner can use the foreclosure lawsuit to obtain leverage against the bank and put pressure on them to grant a mortgage modification.
The Answer
When served with the foreclosure Summons and Complaint, the homeowner has twenty days to respond if served personally, and thirty days to respond if served by any other means other than personal service. The homeowner can either submit an Answer or in certain circumstances, make a motion to dismiss the lawsuit right off the bat. It is important to remember that lending institutions and foreclosure legal action by them are extremely heavily regulated by State, Federal and local laws and regulations. Foreclosure defense attorneys utilize these regulations of financial institutions in developing defenses for homeowners. In addition to making a motion to dismiss, and submitting defenses, a homeowner can submit what are called affirmative defenses. These are technical legal challenges on substantive grounds with regard to issues related to the foreclosure lawsuit. Examples of affirmative defenses are: lack of standing, robo-signing, dual tracking, failure to document the loan, improper notice, improper service, fraud, loan modification issues and many other affirmative defenses.
Countersuits
Counterclaims can be brought against financial institutions seeking monetary damages. These countersuits can be based on allegations the financial institution caused injury to the homeowner. There are also statutory violations and statutory penalties which can be brought against the financial institution. Unique facts related to each homeowner’s situation can be molded into an appropriate Answer with affirmative defenses and countersuits against the bank.
Discovery
After the Summons and Complaint is served and an Answer is submitted, a lawsuit enters what is called the discovery phase. During this phase the attorneys for the homeowner can force the bank to turn over documents, bank records, underwriting records, and other information to help the homeowner with his or her defenses. If the bank’s attorneys refuse to comply with discovery demands, motions to dismiss the lawsuit can be made to the court.
Developing The Response To The Summons and Complaint In The Foreclosure Lawsuit
Some law firms who handle one or two foreclosures a year look at a research book and submit a standard response in their answer. This is a standardized document not tailored to the specific needs of the homeowner. Our law firm, which has represented hundreds of homeowners, does not use boiler plate responses. Each and every foreclosure lawsuit is analyzed and specific affirmative defenses and countersuits related to the circumstances in each and every case are submitted by our law office.
Foreclosure Settlement Conferences
New York State has mandatory foreclosure settlement conferences required to be attended by the attorney for the homeowner and counsel for the lender. At these settlement conferences both parties are expected to negotiate and act in good faith. Referees at these conferences try to motivate the financial institutions to grant the homeowner a mortgage modification. Even if the homeowner has been turned down several times before, he or she can still use the leverage of the mandatory foreclosure court conference to obtain a mortgage modification.
Motion for Summary Judgment By The Banks’ Lawyers
In almost every foreclosure lawsuit, at some point, the attorneys for the financial institution bring a motion for summary judgment. This motion basically states that there are no issues of fact involved in the case, no valid defenses and the bank should be entitled to a judgment of foreclosure without a trial or further hearing. This is where the affirmative defenses and discovery demands by the homeowner come into play. The affirmative defenses can be utilized to argue to the court what the bank has done wrong. The failure of the bank to provide necessary documents and other requested information by the lawyer for the homeowner can help to defeat the summary judgment motion.
Conclusion
Banks do not always win foreclosure lawsuits. The legal system is designed to see to it financial institutions don’t take advantage of homeowners. Our law firm’s single goal is to help homeowners fight the foreclosure, keep their home, and obtain mortgage modifications. We have been successfully representing homeowners for more than 45 years.
