Facing a mortgage foreclosure lawsuit can be overwhelming, but receiving foreclosure papers does not necessarily mean the case is automatically decided. In Florida, homeowners may be able to raise legal defenses depending on the facts of their mortgage, payment history, the documents involved, and the actions of the mortgage holder or servicer.
So, what are common defenses to mortgage foreclosure in Florida? Potential defenses can include challenging the plaintiff’s standing or right to enforce the note, identifying errors in the amount claimed, disputing whether required conditions were satisfied, and raising issues concerning the foreclosure documents or servicing of the loan.
Every foreclosure case is different, and whether a particular defense applies depends on the evidence and circumstances of the case.
1. The Plaintiff Cannot Establish Its Right to Enforce the Note
One issue that can arise in a Florida foreclosure case is whether the party bringing the lawsuit has the legal right to enforce the promissory note.
Florida law requires a foreclosure complaint involving certain residential properties to state facts showing that the plaintiff is the holder of the original note or otherwise has the legal right to enforce it. If another party has been delegated authority to bring the foreclosure, the complaint must identify the authority supporting that action.
This can make the ownership and enforcement history of the mortgage documents an important part of a foreclosure case.
A homeowner should not assume that the name appearing on a mortgage statement automatically answers every question about who has the right to enforce the note. The actual documents and applicable law need to be reviewed.
2. Errors in the Amount Claimed
Another potential defense involves inaccuracies in the amount the lender claims is owed.
A foreclosure complaint may include amounts for:
- Unpaid principal
- Interest
- Late charges
- Escrow
- Insurance
- Property-related expenses
- Attorney fees
- Other permitted costs
If the homeowner believes the amount claimed is incorrect, the underlying account history and supporting documents may need to be reviewed.
For example, a borrower may dispute whether payments were properly credited or whether certain charges were authorized under the loan documents.
An error in the amount owed does not automatically defeat a foreclosure case, but discrepancies can become relevant to the claims and damages being asserted.
3. The Lender or Servicer Failed to Follow Required Procedures
Mortgage foreclosure cases involve procedural requirements. Depending on the circumstances, a homeowner may be able to raise an issue if the mortgage holder or servicer failed to comply with an applicable contractual or legal requirement before filing the lawsuit.
The specific requirements depend on the mortgage documents, applicable statutes, servicing rules, and facts of the case.
This is why homeowners should review the foreclosure complaint together with the mortgage, promissory note, payment records, notices, and other relevant documents.
4. Disputes Concerning Default or Payment History
A foreclosure generally involves an allegation that the borrower failed to comply with the mortgage agreement.
If the borrower disputes the alleged default, payment history can become an important issue.
For example, a homeowner may have evidence showing that:
- A payment was made but not properly credited.
- The lender’s records contain an accounting error.
- The borrower entered into a payment arrangement.
- A modification or other agreement changed the payment obligations.
- The amount claimed as past due is disputed.
Documents such as bank statements, canceled checks, payment confirmations, mortgage statements, and correspondence with the servicer can help establish the payment history.
5. Issues With the Original or Lost Note
Florida law contains specific requirements concerning lost, destroyed, or stolen mortgage notes.
Florida Statutes § 702.11 addresses protections associated with enforcement of lost, destroyed, or stolen notes.
Florida law also addresses what a foreclosure complaint must allege when the plaintiff claims to be entitled to enforce a note.
This does not mean that a missing original note automatically prevents foreclosure. Instead, the circumstances surrounding the note and the plaintiff’s legal authority to enforce it may need to be established according to applicable law.
6. Defenses Based on the Mortgage Agreement
The mortgage and promissory note are important documents in a foreclosure lawsuit because they establish the contractual obligations between the parties.
A homeowner may need to examine whether the lender’s allegations are consistent with the actual terms of those documents.
Potential issues can involve:
- Payment requirements
- Default provisions
- Acceleration provisions
- Notice requirements
- Fees and charges
- Modification agreements
- Other contractual conditions
The precise language of the documents matters. A defense that applies in one foreclosure case may not apply in another.
7. Problems With the Foreclosure Complaint
Florida law establishes specific requirements for foreclosure complaints involving residential property. For example, Florida Statutes § 702.015 requires certain complaints to contain allegations concerning the plaintiff’s status as the holder of the original note or the factual basis for being entitled to enforce it.
If a homeowner believes the complaint does not properly establish the required facts or contains other legal or factual deficiencies, those issues may need to be addressed through the appropriate court procedure.
This is one reason why ignoring foreclosure paperwork can create additional problems. A homeowner should carefully review the complaint and deadlines for responding.
8. Servicing or Loan Modification Issues
Communication between a homeowner and mortgage servicer can sometimes create important factual issues.
For example, a borrower may have applied for a loan modification, forbearance, repayment plan, or another form of loss mitigation before or during the foreclosure process.
Relevant documentation may include:
- Modification applications
- Approval or denial letters
- Emails
- Servicer correspondence
- Payment agreements
- Account statements
- Records of telephone communications
Whether these circumstances create a legal defense depends on the specific facts and applicable law.
Can a Foreclosure Defense Stop the Foreclosure?
A foreclosure defense does not automatically stop every foreclosure.
The outcome depends on the specific defense, the evidence supporting it, the lender’s response, the court’s decisions, and the procedural stage of the case.
Florida law also provides courts with authority to set aside a foreclosure decree before the foreclosure sale in certain circumstances. Florida Statutes § 702.07 states that a circuit court may rescind, vacate, and set aside a foreclosure decree before the sale has actually occurred, subject to the circumstances described by law.
Because foreclosure cases are highly fact-specific, homeowners should avoid relying on a general internet checklist as a substitute for reviewing their individual case.
What Should You Do If You Receive Foreclosure Papers in Florida?
If you receive a foreclosure complaint, summons, or other court documents, do not ignore them.
Consider taking these steps:
- Read the foreclosure complaint carefully.
Identify the lender or plaintiff, the amount claimed, and the allegations concerning the alleged default. - Gather your mortgage documents.
Locate the promissory note, mortgage, modification agreements, and relevant correspondence. - Review your payment records.
Bank statements, payment confirmations, and mortgage statements may help identify discrepancies. - Check the court deadlines.
A foreclosure lawsuit involves procedural deadlines. Missing a deadline can affect your ability to respond. - Consider obtaining legal advice.
A Florida foreclosure attorney can review the specific allegations and documents and explain potential defenses or other available options.
For Orlando homeowners dealing with a foreclosure lawsuit or mortgage default, consumerrightsorlando provides information and legal assistance concerning consumer and mortgage-related matters.
FAQs
What is the most common defense to foreclosure in Florida?
There is no single defense that applies to every Florida foreclosure case. Potential issues can include the plaintiff’s right to enforce the note, disputed payment records, inaccurate amounts owed, procedural issues, contractual requirements, and other case-specific circumstances.
Can I fight a foreclosure if I really owe the mortgage?
Potentially. Owing money on a mortgage does not necessarily eliminate every possible defense. A case can involve separate questions concerning the amount owed, enforcement of the note, required procedures, contractual terms, and other legal issues.
However, a homeowner should not raise a defense simply because it sounds applicable online. The facts and documents of the individual case matter.
Can errors in mortgage payments be used as a foreclosure defense?
Potentially. If a homeowner has evidence that payments were incorrectly credited or that the lender’s accounting is inaccurate, those records may be relevant to the foreclosure case.
Does Florida require foreclosure to go through court?
Florida generally uses a judicial foreclosure process. Florida Statutes Chapter 702 governs mortgage foreclosure proceedings, and Florida law provides that mortgages are foreclosed in equity.
Should I hire a foreclosure attorney?
If you have received a foreclosure lawsuit or are facing significant mortgage default issues, obtaining advice from a qualified Florida foreclosure attorney can help you understand the allegations, deadlines, potential defenses, and available options based on your circumstances.
Final Thoughts
Common defenses to mortgage foreclosure in Florida can involve standing or the right to enforce the note, disputed payment histories, incorrect amounts owed, procedural requirements, mortgage terms, loan modification issues, and problems with foreclosure documentation.
However, there is no universal defense that guarantees a foreclosure case will be dismissed. Florida foreclosure law is fact-specific, and the strength of any defense depends on the documents and evidence available in the individual case.
If you are facing foreclosure in Orlando or elsewhere in Florida, reviewing the foreclosure complaint and mortgage records promptly can help you understand what is being claimed and what legal options may be available.