Get Ready - Foreclosures are heating Up.

The foreclosure world is about to heat up again. Get ready. For reasons I can only guess at the Florida courts are pushing through cases that have been languishing in legal limbo for months and some for years. If you thought that your case had been forgotten, abandoned, or put on the back burner, be aware that it may soon become active.

And, in Florida, if there has been no activity on a case for at least 10 months, the defendant may file a motion to dismiss based on lack of prosecution. Filing the motion may wake the sleeping giant, but the defendant doesn't have a lot to lose in filing.

We are hearing more and more from people in foreclosure because their modification did not go through. More and more homeowners are reporting that they were told they could not qualify for a mortgage modification unless they were behind on their payments. The struggling homeowner then falls behind, sometimes because of the suggestion of the loss mitigation worker - sometimes it just happened, then goes into their trial modification. The trial modification continues for three months. The homeowner dutifully pays the new amount and believes that all is well -- then the lender cancels the modification and begins foreclosure proceedings.  We have heard this scenario repeatedly.

If you are served with a foreclosure complaint be sure to answer it within the 20 day time period. Raise as many affirmative defenses as you can in your answer. Go ahead and raise the affirmative defenses even if they seem to contradict each other.

FIRST AFFIRMATIVE DEFENSE

Although Plaintiff seeks to avail itself of the acceleration remedies available in the Mortgage, Plaintiff has failed to fulfill the necessary requirements enumerated in Paragraph 22 for it to avail itself of the acceleration remedy. Among other requirements, Paragraph 22 requires the Plaintiff as Lender to give notice and an opportunity to cure to Defendant as Borrower, 30 days prior to applying the acceleration remedies and to the institution of any action based on a default of the Mortgage. Plaintiff fails to plead compliance with the notice requirements of Paragraph 22 of the Mortgage.

As the Plaintiff has not met the requirements necessary to bring an action under the
Acceleration Remedies Clause of Paragraph 22 of the Mortgage, this action should be dismissed.

SECOND AFFIRMATIVE DEFENSE

To the extent Plaintiff does not have in its possession the original Note executed by the Defendant, it should be estopped from initiating a foreclosure of the property until such time as the Plaintiff presents the original signed Note before this Court or otherwise shows that the debt in question is owned by Plaintiff.

THIRD AFFIRMATIVE DEFENSE

Plaintiff does not appear to be the proper party in interest in this matter. Defendant demands proof that the Plaintiff was the holder of the Mortgage and Note at the time of filing this action. Plaintiff alleges that it not the owner but is acting on behalf of the servicer. To that end, it appears as if the Plaintiff is not the proper party to maintain this suit. Assuming, for argument purposes only, that the Plaintiff is a true disclosed agent of the owner of the note, it can not sue on its own behalf, rather it can only sue in the representative capacity. See Schurkman v. Stolar, 347 So.2d 653 (Fla. 3d DCA 1977) (Agent lacks standing to sue for debt owed to others on his own behalf).

Based on the documents attached to the Complaint, it appears as if the Plaintiff lacks standing to maintain this action.

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There are many more possible affirmative defenses that you can raise in your answer. It is appropriate to raise as many as reasonably apply to your situation. If you do not raise a defense in your answer you may be prohibited from using that defense later on.

Research the issues. Research the procedures. No one but you is going to save your home from foreclosure. Consumers that can afford it, hire attorneys to fight the foreclosure. Others go pro se, with or without the help of a legal document preparer. Don't panic, don't hide, and don't become complacent.