This is the second article in a series examining various general issues of relating to foreclosures and the legal environment. Homeowners often avoid going to the initial foreclosure default hearing, which makes it very easy on the bank to win a case and proceed from foreclosure to eviction. Being aware of some of these legal issues, though, can encourage foreclosure victims to make it to the hearing and present their side of the story, which may result in a better resolution to the problem than a sheriff sale. Although these issues may not be come up at all, or the homeowners will find some solution outside of the courts, being aware of these aspects of the foreclosure process can allow them to put together more backup plans if the bank does pursue the default through the county court system.

The previous article discussed what elements of a case that the lender would need to prove in order to win a judgment against the homeowners. These included proving there was a legally binding contract, the lender performed as agreed under the terms of the contract, the homeowners breached some part of the agreement, and the breach caused the mortgage company to suffer actual damages. The lender must prove all of these elements in order to win; if they can not prove one of them, there is no case. For example, if the bank shows everything else but can not prove that they own the paperwork for the loan, due to it being passed around from lender to lender, sold to hedge funds, investment firms, and then sold to the foreclosing bank, but the loan papers are not clear, there may be no judgment awarded.

Of course, if the homeowners do not show up to the foreclosure hearing, the bank will often be awarded a default judgment, with the judge simply assuming that the bank's case is sound. If the homeowners are made aware of their right to defend against the lawsuit, and simply waive that right by not answering the complaint or showing up to court, the judge will assume that silence equals consent and the lender will win.

But, for homeowners making their own defense or hiring an attorney of their own to defend them, it is important to be aware of certain techniques that can be used to answer the foreclosure. The first step should be for the homeowners to identify in the lender's complaint the specific legal claims being made. Obviously, the most common one in a foreclosure lawsuit will be breach of contract, specifically in regards to the mortgage loan. But without reading the complaint, homeowners can not be sure if any other claims are made, or if the bank has failed to make any claim at all. Identifying the claim will help the foreclosure victims begin to understand exactly what they are defending against.

Then, the homeowners may want to figure out the exact elements of each claim made against them. My first article on this subject explains the specific elements that would generally need to be proved in a breach of contract case, although every case will be somewhat unique. But, as stated earlier, the bank will need to show that a legally binding contract existed between it and the homeowners, that the lender did everything as agreed, the homeowners failed to perform as agreed and breached the contract, and the lender suffered actual damages as a result. Although this may seem quite simple in theory, mortgage companies (and all creditors) are notoriously bad at record keeping and attorneys are not always known for competence when their shaky legal claims are challenged. Homeowners who can identify exactly what needs to be proven can often easily poke holes in the case and create a sense of doubt over one or more element, depending on how thorough the bank has been.

The next step may be for the foreclosure victims to identify each fact that the bank may use to prove their case. Some of these items may be the original mortgage paperwork, any assignments of mortgage showing who owns the loan at the present time, mortgage payment records showing the missed payments, and so on. Because the lender is qualified as a debt collector under the Fair Debt Collection Practices Act, it is quite reasonable for homeowners to request specific validation of the debt. If the bank has not kept very clear transfer records, or there is doubt of who exactly owns the loan, there may be no case against the homeowners. For example, suppose the bank can not clearly show the loan was transferred to it. The homeowners may be in danger of being sued by a different lender who actually does own the paperwork, or possibly they have been making on time payments to a different lender who has the right to collect. The bank that can not show it owns the loan can not prove it has the legal right to try and collect payment for the loan.

This is one reason why homeowners may want to put together documents that they have received that can disprove the lender's claims, as well as evidence that proves the claims the homeowners will make. As long as any one element of the mortgage company's lawsuit is defeated, there can be no judgment against the homeowners for foreclosure. If the bank's transfer documents are far different from the foreclosure victims' own information, there may be doubt that a legally binding contract exists between the bank and owners. Although this may just require more documents to be produced by the bank, rather than the whole case being thrown out, it will show the lender and their attorneys that not every homeowner is willing to be pushed around and intimidated by an unfamiliar court system.

Admittedly, it will be very difficult for homeowners to get the foreclosure lawsuit completely thrown out of court, leaving the bank with no other alternative than to write off the loan or start over and try to prove their case some other way. This happens in only a very small number of cases. But, homeowners with some knowledge of the foreclosure process in the court system, and the general theories of what the bank must do and how it can be defeated, will be in a much stronger position to come to a resolution that does not involve losing the home. Judges can order the parties to consider settlement ideas through mediation or arbitration, but homeowners too fearful even to show up at court will lose their opportunities for such alternatives to foreclosure. Even when homeowners are represented by an attorney, having a background understanding of the legal process will make the experience easier to comprehend.

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