foreclosure proceeding is filed in Ohio, the homeowner has certain procedural
and substantive rights. If the mortgage
company violates any of these rights, the homeowner will have defenses against
the mortgage company for violation of his/her rights.
procedural defenses are typically related to the mechanics of how a legal case
flows, including the steps the mortgage company has to take to process a
foreclosure case. Procedural law adheres to due process-the legal rights owed
to a person in a civil action.
Under the terms
of the mortgage documents, the mortgage
company may be required to notify you of the default under the mortgage note
before it can call the mortgage note due – this is called the “acceleration”
notice. The mortgage document may also
allow you a certain time after the notice of default to bring the loan current
by paying the arrears – this is called the “curing” of default. A careful review of the mortgage note and
document is essential to determine what steps the mortgage company must take
prior to foreclosure, and whether the mortgage company has complied.
foreclosure complaint is filed, you must receive a copy of the summons and
complaint for foreclosure. The summons is a document produced by the court and
provides instructions as to when and where to file a response and establishes
deadlines for how the case will proceed in the court system. In Ohio, you have
28 days to file a response or answer to the foreclosure complaint to avoid a
judgment by default. The complaint sets out the claim of the mortgage lender
and contains elements relating to the mortgage, mortgage note, default, the amount
owed, the interest on the mortgage note, default information, the last payment
made and what the mortgage company wants from the court. Copies of the mortgage
and the note must be attached to the complaint. The complaint must be served on
all persons or entities that might have an interest in the real estate. There may also be local court rules requiring
additional documents to be filed with the Court, such as a title search.
substantive defenses are typically related to the written or statutory law
which governs the relationship of the mortgage company and the homeowner. It
relates to the elements of the foreclosure action and whether or not the
mortgage company has the right to proceed and whether the homeowner has the right to raise certain
defenses based on said law.
the mortgage company to provide you with the notices stated in the Procedural
Defenses will provide you with a defense to the foreclosure complaint so that
you can seek the dismissal of the foreclosure complaint.
If you have
a HUD-insured FHA loan, the mortgage lender may be required to work with you on
a resolution prior to filing the foreclosure complaint. The steps to explore
alternatives to foreclosure are commonly known as loss mitigation and include
loan modification, forbearance or partial forbearance, or deed-in-lieu of
foreclosure. If the lender fails to comply with these requirements before
filing the foreclosure complaint, the homeowner can raise this as a defense and
seek the dismissal of the foreclosure complaint.
foreclosure complaint is filed, you may raise defenses associated with
insufficient paperwork, payment disputes, mistake, fraud, misrepresentation,
unfair lending or debtor collection practices, violations of Ohio consumer
laws, violations of your right of redemption or right to reinstate and other
If your loan
allows for reinstatement, you may seek assistance from Ohio’s program called
“Restoring Stability.” http://www.savethedream.ohio.gov/.
The within statements are general in nature and this
information is not intended as a substitute for legal advice regarding your
specific case, nor is an attorney-client relationship established between Mina
Nami Khorrami, LLC and any person reading this information. Mina Nami Khorrami
is an experienced bankruptcy and debt attorney based in Columbus, Ohio.