"Foreclosure Defense" - New False Assumptions ?

The issuance of the Third District Court of Appeals 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 assumption that now appear false. A homeowner may be better served on directing his or her efforts towards the modification of their mortgage.

Present Modification Opportunities

If a homeowner seeks to save their home from foreclosure, solely focusing on "delaying foreclosure" is not likely to solve their proble.   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.

Costs

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 may be rising, causing the new modification payment to be higher.

If a person has a first and second mortgage, a rise is in real estate prices would not help. If their second mortgage is wholly "underwater", it maybe avoidable in bankruptcy. If real estate prices go up enough that the second mortgage is even $1 "above water," it 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 is not much of a "win".  In most instances, a new foreclosure action may be filed on a new default.

For example, "winning" a foreclosure case on a rule of "hearsay" or other rule of evidence, is not much of a "win" - it only means that the lender did not establish a sufficient evidentiary record - this time around.

Statute of Limitations

Even if the statute of limitations has run to bring a foreclosure action on the mortgage note, the mortgage note remains valid and the mortgage and its liens remains valid (until the mortgage statute of repose runs).

"Lost Mortgage Note"

Getting your foreclosure case dismissed on the grounds that the mortgage note is "lost" or the plaintiff cannot prove standing may only effects a dismissal of the foreclosure case.  Another foreclosure could be filed. The mortgage note and mortgage lien remains valid.

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