Affirmative Defenses and Procedure
You Can Stop Foreclosure and Put the Lender on the Defense.
You’ve been laid off from work, lost your job, had a medical problem, or your Mortgage Interest rate has adjusted to an amount you can’t possibly pay. You just can’t make the payments so you don’t. Then…
You’ve receive that dreaded Notice of Default from your Mortgage Servicer. What should you do?
Today, and in the coming weeks, we are going to lay out a basic plan of attack, to help you keep your home.
First, we recommend making a Mortgage Foreclosure Defense Book, where you will keep all documents, letters, notices, and notes and logs of your conversations. We suggest a ring binder, with a set of index tabs that you can buy from any office supply store for a couple of bucks. You should label these index tabs like this:
- Searches – On Line and at the Courthouse
- Copies of Mortgage and Deed
- Official Records
- Correspondence with Lender
- Correspondence with others
- Mortgage Payments
- Expenses charged by your Servicer
- Court Pleadings
1. Determine you legal status. What do we mean by that? You should make sure where you really stand in the legal process. DO NOT RELY ON WHAT YOUR SERVICER TELLS YOU, THEY LIE. Your first step should be to the check the Clerk of the Courts records for any law suits or other documents that may have been filed against you. Sounds daunting and embarrassing, doesn’t it. Well it’s not; it’s really easy, and private.
- Almost all Clerk offices in every state provide some type of on-line records check. Start by googling “Clerk of Court your county or parish your state”. Replace the words in italics with the name of the county or parish and state in which your home is located.
- Now there are two places you want to check here. First is the Clerk’s Court Records. This is a listing of all lawsuits filed in your county. You will want to search by your last name and first initial. This will bring up a listing of anyone who has either filed a suit by that name, or who has had a suit filed against them. Look for your name or your spouse’s name and make a note of anything appearing there. Print out the page or pages if you can. These pages are going to go into your Mortgage Foreclosure Defense Book. You are looking specifically for any documents called a “Complaint”, “Lis Pendens”, “Notice of Default”, “Notice of Sale” or other documents to that effect. If you can, go to those documents on line, and print them on your home computer. Place copies in the “Search” section, “Official Records” section, and “Court Pleadings” section. Place a post it note on each, noting that additional copies are in the other sections of your notebook. Why in three places? If you are in Court by yourself, or if your attorney should ask you for a copy of these documents, you need to be able to find the easily. Remember, Foreclosure proceedings move quickly, Judges will not let you look through piles of folders or paperwork for documents. They need to be at your fingertips, and you need to produce quickly when asked. This will make that job easier, when it’s needed.