Foreclosure Defenses
When a 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:
The 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.
Once a 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:
The 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.
Failure of 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.
Once the 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 related defenses.
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.
