If you have been unfairly denied a loan modification or if your lender has brought a foreclosure action against you, the Orange County real estate lawyers at Oak Tree Law may be able to defend you, to obtain a loan modification, to get you more time to remain in your home, to prevent foreclosure or even help you to gain some compensation.
Trusted Los Angeles Real Estate Lawyers
The Los Angeles mortgage litigation attorneys at Oaktree Law know when legal action is appropriate. We can help you to enforce your rights and hold lending institutions accountable under state and federal mortgage laws and will exhaust every defense to save your home. At a minimum, these defenses will place you in a better position in negotiations with the lender, and they may force the lender to start the foreclosure process over.
This can provide you with additional time to catch up on arrears or pursue options such as loan modification, short sale or bankruptcy. Look to our highly-acclaimed and experienced legal professionals to help which dealing with mortgage or foreclosure matters.
Defenses against foreclosure actions
Just because your lender has begun an action for foreclosure doesn’t mean that you will automatically lose your home. There are several reasons why a lender’s action for foreclosure against you might be dismissed.
Lack of Standing
In most states, a loan servicer must be named on the mortgage in order to bring a foreclosure lawsuit. If the loan servicer’s name was not on the mortgage before the lawsuit was filed, the case may be dismissed.
In that case, the court would rule that the institution bringing the suit (known as the plaintiff) does not have a legitimate interest in the case because they were not named on the mortgage between the borrower and the lender. This is called a lack of standing and it is the most effective defenses against foreclosure.
Possession of the Note
A mortgage loan is also known as a note. Possession of the original note may be the most well-known defense. Whether the plaintiff is the original lender or not, you should always demand an inspection of the note. The original document is the only one that can be enforced against a borrower.
If the mortgage has been sold to another party, endorsements must be reflected on the original document. This endorsement must either name the plaintiff as the new payee or specify that whomever holds the original note is the payee. The note must also have been delivered to the new payee. Without meeting these conditions, your foreclosure may be overturned.
Another defense against foreclosure arises when lenders improperly apply payments towards interest instead of principal. This defense is known as setoff. If the terms of your loan were violated in this manner, monetary claims by the plaintiff may be thrown out.
Failure to Provide Notice
Lenders are required to supply certain notices by closing, including the Notice of Right to Cancel. If everyone with an interest in the loan does not receive two copies of this notice, there has been a violation. That violation may permit you up to three years to rescind (withdraw) the loan.
Constructive Contract and Promissory Estoppel
When you and the lender agreed to work towards a permanent modification, if you made timely payments (and if you have statements that reflect them) a written contract is not required. The bank’s failure to modify your loan may be a breach of contract and a valid defense to foreclosure.
Contact us or call 800-535-1627 to talk with real estate litigation lawyer in Los Angeles & Orange County. In the right circumstances, lenders can be forced to negotiate fairly with homeowners that deserve a loan modification.