The Florida Villager - September 2013 September 2013 | Page 23

LEGALLY SPEAKING
Tips for Beating the Bank in Foreclosure Proceedings

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BY OMAR J. ARCIA, ESQ., FORECLOSURE DEFENSE AND BANKRUPTCY PROTECTION ATTORNEY

rom December 2007 to present, South Florida has experienced a 400 percent increase in foreclosure filings, and more than one fourth of all mortgages in the United States right now are at least 60 days past due. In view of these staggering statistics, most homeowners simply give up the fight for their home before it even begins. However, a foreclosure lawsuit is just like any other lawsuit – the lender must prove its entire case before it can obtain a judgment. Just because you’ve been served with foreclosure papers does not mean you have to leave your home! The legal foreclosure process can take two years or more if the borrower is able to identify and present valid defenses to the foreclosure. Here are some suggestions on how to use foreclosure proceedings to your advantage, and possibly “beat the bank.”

First of all, perform a detailed audit of your loan transaction through a qualified mortgage auditing firm. A forensic audit often reveals serious violations of Federal and State laws committed by the same lenders that initiate foreclosure proceedings. An audit may also reveal fatal flaws in the transfer of your mortgage. Using the results of your forensic audit, and assuming you have identified violations of law in connection with your loan, you should file a counterclaim against your lender for those same violations. In other words, sue your lender within the same proceedings as a means to gain negotiating leverage and improve your mortgage terms. In some cases, borrowers have been able to obtain a cancellation of the mortgage altogether by taking the offensive in a foreclosure proceeding. Most foreclosure proceedings are not initiated by the original lender, but rather by a party who claims to “own and hold” the Note securing payment of the loan. Surprisingly, many of these third parties don’t actually have possession of the original note, or the right to enforce the obligation. The Note is a negotiable instrument, like a bank check. Do you know any bank that will cash a “copy” of any check? Likewise, no Court will decide a foreclosure proceeding based upon a “copy” of your Note. If you demand the original Note, and the lender is unable to produce it, a foreclosure judgment cannot legally be obtained.

CONDUCT A FORENSIC AUDIT OF YOUR LOAN

FILE A COUNTERCLAIM AGAINST YOUR LENDER

DEMAND THE ORIGINAL NOTE

CHALLENGE YOUR LENDER’S RIGHT TO BRING THE FORECLOSURE PROCEEDING

In most cases, your original lender did not formally assign or endorse the Note to the new entity. Florida law only permits an action to be presented by the “real party in interest.” If you never signed an agreement with the party that filed the foreclosure, you can challenge their right to file the foreclosure proceedings altogether. Judges will not hesitate to dismiss a foreclosure proceeding initiated by a company that has no legal right to bring the action. The Arcia Law Firm is privileged to successfully represent dozens of homeowners in our community with mortgage fraud, foreclosure defense and bankruptcy cases. Detailed explanations of different options available to homeowners are also discussed in a new DVD developed by the Arcia Law Firm entitled “Fight For Your Home.” If you mention that you heard about the DVD through this magazine, you will receive a complimentary copy during your free consultation to discuss your case in detail with a member of our qualified legal team.

If you are struggling to make your monthly mortgage payments, if you are in the middle of a frustrating loan modification process, if you just received a foreclosure summons, or if you don’t know a reputable mortgage audit firm in your area, please contact the Arcia Law Firm at 1-800-770-7102 or www.arcialawfirm.com, and we will gladly point you in the right direction. To Advertise in The Florida Villager, Please call 786-505-1817 September 2013 | www.thefloridavillager.com 21