"Foreclosure Defense" - Time to Review Assumptions?

The issuance by the Third District Court of Appeals in Miami of the recent decision in Deutsche Bank Trust Company Americas, etc. v. Harry Beauvais, et al., Case No. 3D14-575, may be an appropriate time to review what actions a Miami homeowner that seeks to save their home from foreclosure should consider. If upheld, the Court's decision may indicate that some notions of "foreclosure defense" may be based on assumptions that are contrary to what the Court's appears to have ruled.   A homeowner seeking to save their home from foreclosure may be better served on directing his or her efforts towards the modification of their mortgage instead of  "winning" a foreclosure case.   For example, it appears that in most cases, arguments regarding statute of limitatations issues will not result in a "quiet title" judgment.

Present Modification Opportunities

If a homeowner seeks to save their home from foreclosure, focusing primarily on "foreclosure defense" is not likely to be the solution.   The federal government, the mortgage lenders, and the general economic climate, present good opportunities to modify your mortgage that may not exist in years to come.  For many, the after-tax benefit cost of paying a modified mortgage payment may not be significantly more than paying for a "foreclosure defense".

Possible Rising Real Estate Price and Interest Rates 

A homeowner may be making a error in not taking the opportunity to modify their mortgage based on present real estate values and interest rates. Real estate prices and interest rates may be rise,  causing the new modification payment to be higher the longer a person waits to pursue a modification.

Also, if a person who has a first and second mortgage, it would be better to address their situation before there is a rise is in real estate prices. If the second mortgage is wholly "underwater", it may be avoidable in a bankruptcy case.  If real estate prices go up enough that the second mortgage is not wholly "underwater," the second mortgage could not be avoided at all.

"Winning" Foreclosure

There may not exist much of a thing as "winning" a foreclosure case. For many, simply getting a foreclosure case dismissed, "with" or "without" prejudice may not be much of a "win".  In most instances, a new foreclosure action may be filed on a new default almost immediately.

For example,  "winning" a foreclosure case by getting the case dismissed on a on rule of evidence, is not much of a "win" - it only means that the lender did not establish a sufficient evidentiary record at the trial. In most cases, the lender can simply file another case.

Statute of Limitations

Even if the statute of limitations has run to bring a foreclosure action on the mortgage note, generally the mortgage note remains valid and the mortgage and its liens remains valid. The continued validity of the mortgage and its lien is governed by the time period set forth in the statute of repose.

"Lost Mortgage Note"

Getting your foreclosure case dismissed on the grounds that the mortgage note is "lost" or the plaintiff cannot prove standing only effects a dismissal of the foreclosure case.  In most cases, this simply buys time until the lender refills another case. The mortgage note and mortgage lien remains valid.

Jordan E. Bublick - Miami Bankruptcy Lawyer - Kendall & Aventura Offices - (305) 891-4055 - www.bublicklaw.com