When a mortgage borrower is facing foreclosure, there are certain steps the mortgage lender has to take in order to begin the foreclosure process. These steps are usually outlined in the mortgage documents a borrower signs when taking on the mortgage. In some foreclosure cases, the mortgage lenders do not follow the outlined steps, which sometimes cause the mortgage borrower to suffer by losing some legal rights. However, in some cases the mortgage lender’s failure to follow requirements of a legal contract before starting the foreclosure process can be used as a defense to the foreclosure by the mortgage borrower.
General Notice Requirements
In Florida, most residential mortgage agreements have language, often contained in paragraph 22, which is geared towards protecting the rights of the mortgage borrower by requiring the mortgage lender to provide notice to the mortgage borrower before taking foreclosure action. Under the notice requirements, the mortgage lender is often required to provide the mortgage borrower with a written notice that specifies the following:
- The mortgage borrower’s default on the mortgage;
- What the mortgage borrower must do to cure the default;
- A date, generally not less than 30 days from the date notice of the default is given, by which the mortgage borrower must fix the default;
- That the mortgage borrower’s failure to fix the default by the date specified may result in the mortgage lender requiring all the money due on the mortgage immediately (acceleration), foreclosing and selling the property; and,
- That the mortgage borrower has the right to reinstate the loan after acceleration and the right to several defenses in a foreclosure case.
In the past, the mortgage lender was required to strictly comply with providing the mortgage borrower the information outlined above, in order to then successfully begin a foreclosure action. However, more recently, Florida courts have weakened the standard the mortgage lender has been held to, and required that the mortgage lender only substantially comply with the notice requirements of paragraph 22. For example, this generally means that the mortgage borrower has a weaker defense if the mortgage lender provided notice, but only 28 days within which to fix any default. Unless the mortgage borrower can prove to the court that the extra two days would have made a difference in terms of fixing their default, then the mortgage lender’s failure to provide the two days is immaterial.
Other Defenses Available
While the courts may have weakened the mortgage borrower’s defenses by changing to a substantial compliance versus a strict compliance approach, a mortgage borrower may still have several other defenses available in a foreclosure action. Some common defenses include showing that the mortgage lender bringing the foreclosure action is not the lender holding the note to the mortgage, or that the mortgage lender sent the required notice to the wrong address without the mortgage borrower’s knowledge.
Contact An Experienced North Miami Foreclosure Attorney
If you are facing foreclosure, it is important to seek an experienced foreclosure defense attorney to protect your interests. Contact the North Miami foreclosure attorneys at Charlip Law Group, L.C. for a consultation on your case.