| If you are concerned about foreclosure, you need | | | | states began following the precedent. A |
| to know your rights and how the law applies. It is | | | | homeowner can now file a response stating that |
| not as simple as most people think. The | | | | the lender has failed to state a claim to the |
| information provided below will help you fight your | | | | mortgage. |
| foreclosure. | | | | In a judicial state, a homeowner has the right to |
| 1. Ask for the Promissory Note. | | | | state this claim before a judge. If the homeowner |
| As of February 12th 2010 an opinion was filed | | | | is able to prove that the lender did not follow the |
| with the The District Court of Appeal of Florida; | | | | correct foreclosure procedures, the case could be |
| Second District. The result of this opinion was that | | | | dismissed or postponed. |
| the lender must prove that it has a legal claim to | | | | 3. Your numbers make all the difference. |
| the mortgage and therefore the property. This | | | | Keeping detailed records of EVERYTHING can |
| can be the original promissory note identifying the | | | | make or break your deal. In the event that your |
| lender as the original note holder OR the original | | | | case goes before a judge, the best way to get |
| note identifying another lender as the original note | | | | your terms negotiated is to have detailed records |
| holder along with an "assignment of mortgage" if | | | | of every phone call, letter, email or any other |
| the original lender sold the note to another lender. | | | | form of communication to and from your lender. |
| The lender that is initiating the foreclosure must | | | | Before attempting to negotiate with your lender |
| establish entitlement to foreclose the mortgage. If | | | | (or going to court if you have reached that point), |
| the lender fails to present this, by law, the lender | | | | prepare yourself with accurate numbers that |
| cannot initiate foreclosure of the mortgage. | | | | make up your: |
| To avoid roughly seven pages of legal jargon, I | | | | *Gross income (Before taxes and deductions) |
| will give you the short answer to why the opinion | | | | *Household expenses (Take annual expenses and |
| was filed. | | | | divide by 12 to get a monthly average) |
| The lender provided a promissory note that listed | | | | *Debt and leisure expenses (If it is determined |
| a different lender as the mortgage holder and the | | | | that you CAN make your mortgagepayment but |
| assignment of mortgage form they attached to | | | | are doing a poor job of managing your money, |
| the promissory note was blank and not notarized. | | | | you are going to have an uphill battle) |
| Therefore, the court decision which originally sided | | | | The lender or judge needs to know that you |
| with the lender was reversed, proving that the | | | | have enough income to be able to afford a |
| homeowner is entitled to relief. | | | | monthly mortgage if they are going to attempt |
| If you are being foreclosed on ask for the note! | | | | to modify your loan. To the opposite side of that, |
| 2. Florida is a judicial state. | | | | they need to know what the monthly expenses |
| Prior to 2007, courts generally allowed | | | | are for your household. If the lender is able to |
| foreclosures to proceed even though the proper | | | | prove that you have enough income to pay the |
| paperwork required was absent; many times the | | | | mortgage but are choosing to pay your $700 car |
| lender filed an affidavit stating that the note was | | | | payment instead of your mortgage, do not be |
| lost. In October of 2007 a Cleveland judge halted | | | | surprised if the lender or judge asks which one is |
| the practice of allowing foreclosures to proceed in | | | | more important to you. |
| which the lender did not follow correct foreclosure | | | | For some, this will require some soul searching. |
| procedures in filing proper paperwork. By | | | | What sacrifices are you willing to make to keep |
| February of 2008, judges in several different | | | | your home? |