Homeowner 101 − Basic Primer on Foreclosure Defense

by Ken Kappel on May 26, 2011

We didn’t start the fire, yet, we’re trying help folks understand the foreclosure process.  We are definitely not advocating the use of the firm offering the article which follows, and we are not attorneys, and, do not offer legal advice.  Here in this Magazine Style Web / Blog, and in our book, we give you information, which becomes knowledge, and therefore the courage to confront your lender, and never walk away or strategically default.  If you read our book and this entire blog, let us know, and this summer we’ll give you the opportunity to do that (let us know) and we’ll provide “tools” you can use to take it to the bankers.

Don’t Walk Away
Meanwhile, sit tight don’t leave your home.  Do your reading, do your homework.  We say 20 hours and 20 bucks. The “money” to buy the book. The “hours,” 10 to read the book, and 10 to read the entire blog, will bring you to speed.  Enable you to understand how to defend your home and family, against the avaricious financial predators who have created financial lending fraud. We want you to Repudiate Predatory (Fraudulent) Housing Debt.  So, don’t walk away or strategically default, get yourself up to speed − do your homework, prepare to become a professional client − always a great thing to be.  One more thing, this applies to folks living in states with a Judicial Foreclosure process.  Though it’s good for all folks, including those that live in Non-Judicial Foreclosure states to understand the fundamentals in foreclosure defense.

The article we’re presenting strictly for information purposes is from the Evansville Real Estate Group, and is titled: “The Litigation Method – Defending a House from Foreclosure

To the article

“The following is a fundamental introduction to how disputes are litigated in the the courtroom. Homeowners dealing with the loss of their property by foreclosure might benefit from realizing the basics of the procedure before attempting to save their houses on their own or talk to legal counsel. If the borrowers determine to hire an attorney, being aware of how the court case will proceed can give much-needed peace of mind and assist the owners maintain on top of the process of preventing a sheriff sale.”

“The first step would be to answer the summons. Once the bank hires its local law firm, the attorneys will get to work creating the foreclosure lawsuit. Then, the paperwork is filed with the county court, with a copy of the suit becoming served on the homeowners, who are summoned to court to answer the allegations. If they do not file an answer or appear in court, the bank will win the case by default.”

“The answer to the lawsuit ought to include as a lot of of the following elements as are relevant to the borrowers’ situation. Essentially the most essential point is to deny any and all of the allegations that the lender makes in its lawsuit, too as demanding strict proof of the claims raised by the bank. Then, general defenses really should be included. General defenses are claims that the bank should be conscious of, which includes any offsets. Affirmative defenses then follow, which incorporate claims of the homeowners that the bank may not be aware of, including an expired statute of limitations or unclean hands. Also, the homeowners can then incorporate counterclaims against the bank, which might incorporate violations of the Fair Debt Collection Practices Act or Fair Credit Reporting Act, for example. Finally, the borrowers could wish to consist of a request to the court that they’re given a period of time to prepare for the next stage, discovery.”

“Discovery is the process where the plaintiff (the bank) as well as the defendant (the homeowners) may well attempt to get information from every other that will aid them in their case. This can incorporate interrogatories, taking depositions, and having the other side produce documents. The first reason for discovery would be to examine the case that the bank may possibly present against the homeowners; the second reason would be to far better define the disputes between the two parties and learn if you will discover any issues on which every side agrees. When the bank and the borrowers both agree on a truth, their agreement is known as a stipulation and might be included in legal filings with the court.”

“Again, homeowners should examine this brief description here and decide which discovery procedures to use against the bank. Proposing admissions indicates asking the bank to stipulate a fact. Certainly, if the bank is asking the homeowners to stipulate that they owe a particular amount of income and deserve to lose their house, the owners can refuse to agree. Thus, borrowers may possibly not desire to agree to any of the bank’s stipulations, although proposing their own to the bank. Interrogatories are questions which are designed to obtain distinct statements of reality from the bank, and it really is crucial to word these cautiously and not allow the bank to wiggle away from creating vital admissions or object to how they are put.”

“Demanding the production of documents is often a process utilized in discovery which will be extremely important for homeowners in create the note defenses. These requests could be as broad as the homeowners want, as the bank may have pages of relevant documents that can be produced. Even such items as internal emails, notes on a borrower’s mortgage account, and bank procedures can be requested.”

“After serving discovery documents on the bank, the borrowers may well must file any sort of motions with the court. Filing motions is fundamentally a request that the court do some thing for the homeowners so as to move the case along. The major point to bear in mind here is that the owners ought to incorporate a copy of an executed motion that the court would use with the homeowner’s own motion. This gives the court an effortless method to sign off on a pre-made order that the homeowners want accomplished if their motion is granted.”

“Some of the far more common varieties of motions incorporate the following. A Motion and Order to Compel forces the bank the produce documents that have been requested but have not yet been produced. If the lender ignores the discovery demands, the borrowers can file a Motion and Order to Compel. If the bank continues to ignore the borrowers, a Motion and Order to Preclude is usually filed, which would exclude any evidence from trial that could have been revealed in discovery. Certainly, this can destroy the entire case the bank has prepared. Finally, a Motion for Summary Judgment may well be used if you will find no problems of law or reality that are being disputed. It truly is used when one side basically demands that the court problem a judgment against an additional side; this is quite typical when banks attempt to ignore all the homeowners’ claims and file a Motion for Summary Judgment to circumvent the court method and move straight to the sale of the household.”

“To conclude this overview, when a bank has its attorneys file a motion, the homeowners could have their own attorneys file an opposition to the bank’s claims and state the reason why the motion ought to not be allowed. All of this could seem to be both a gross oversimplification of the court process, as well as completely over the head of numerous average homeowners. On the other hand, having a simple knowledge of how the courts work can support borrowers to defend their houses additional successfully than if they didn’t take the time to learn….”

Ken here.  We are not lawyers, do not offer legal advice and present this article simply as information.

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