Fight Foreclosure

If a foreclosure action is started against you, you will, no doubt, receive numerous letters from mortgage brokers and real estate real estate "investors" offering to "help" you with your problem. They will offer to buy your house -- at a discount. They will offer to refinance your existing mortgage. Perhaps they will suggest that you file for bankruptcy. What we are asking is whether or not you want to FIGHT THE FORECLOSURE.

What we mean by FIGHT THE FORECLOSURE is simply that once you are served with the foreclosure complaint you have a short period of time (usually just 20 days) to serve an answer on the bank's attorney and to file it with the court. The complaint will outline who is suing you, why they are suing you, and for how much money. It will state who owns the mortgage (they are frequently sold from company to company) and how they came to own it.

Your answer must claim whatever defenses you have to the foreclosure, but your defenses may have little to do with the amount you’re behind in mortgage payments. For example, it could be that the wrong bank is suing you. Obviously, the bank seeking payment of your mortgage should be the bank that owns your loan. If not, there may be dire legal consequences if you pay the wrong bank and the right bank later seeks payment.. Moreover, with the subprime mortgage crisis and the questionable transactions between banks that resulted, having the wrong party sue for foreclosure of the mortgage is, unfortunately, too common. There is nothing wrong with fighting an illegal foreclosure.

Claiming that the wrong bank is suing you is only one of several possible defenses that might apply to your case. Every fact and claim made in the complaint may be challenged, so the complaint must be analyzed from beginning to end and every defense that may be raised should be raised. That is why you need to work with an experienced attorney, one who is familiar with the foreclosure process and what the law requires from the bank for it to succeed in the action.

What could you gain from fighting the foreclosure? To understand what you would gain, you need to look at your options. Once the foreclosure process begins, it can conclude in basically one of three ways: First, the homeowner can find a buyer for the property and move. Second, the existing mortgage can be modified with the current bank or refinanced with another bank and the foreclosure action discontinued. Third, the homeowner can do nothing, thus defaulting in the action. The foreclosure action will proceed to a judgment of foreclosure and sale, after which the property will be sold at auction and the homeowner evicted from his property. If he had any equity in the property, that probably will be eliminated at the auction.

So, to answer the question, by fighting the foreclosure, you gain two key advantages. First, if you decide that selling the property is your best option, you gain the advantage of time - time to sell the property at a price that will cover the amount due on your mortgage, and perhaps even get back the equity that has built up in the property. Or, if you decide first to try to negotiate a modification of the mortgage with your current lender, fighting the foreclosure can put you in a better negotiating position. If you answer the complaint, you will not be in default in the action and at the mercy of the bank, which would go into the negotiations "holding all the cards."

There is also a fourth possible outcome to a foreclosure action. That is, that the action is so funda-mentally defective that the court dismisses it. While rare, there have even been cases where the mortgage itself was canceled.

If you wish to explore the possibility of fighting foreclosure by putting in a legal defense to a complaint you have already received, or if you are behind in your mortgage payments and expect to be sued soon , simply call this office (516) 522-2575 for a free consultation. Or, if you have any questions, you may e-mail our office at ssilverberg@silverlaw.us .