September 29, 2014

Homeowner Rights in a Miami Foreclosure Proceeding

stressed over bankruptcyFrom the moment a foreclosure action is first filed, the homeowner is entitled to a series of statutory and contractual protections.

While the courts recognize the right of banks to repossess or sell property when the homeowner defaults on scheduled payments, there are strict rules for how the lender can go about it. If the bank steps outside these bounds, it’s possible your Miami foreclosure lawyer may use this as a defense to argue against the bank foreclosing on your home.

Among some of the rights to which you are entitled:

  • A written notice of default;
  • The grant of a limited period of time in which to cure the default and pay all amounts, including interest, penalties, attorneys’ fees and other costs (called a “notice of acceleration”);
  • The right to due process through the court system. The bank cannot simply force you from your home without notice and without the opportunity to remedy the situation.

Still, there are sometimes exceptions. It’s important that homeowners not ignore bank communications. Even if you are in default, securing the services of an experienced foreclosure defense attorney may help you formulate an effective strategy to help you keep your home – or at least buy you more time.

In the recent case of Roman v. Wells Fargo, Florida’s Fifth District Court of Appeal rejected a homeowner’s assertion that his failure to receive written notice of default precluded a summary judgment in favor of the bank.

The homeowner argued that he never received a written notice of default from the bank, and he was therefore deprived of the opportunity to correct the default.

The problem for his case is that language of the mortgage contract requires only that the bank mail the notice to the homeowner. The bank is not otherwise responsible for ensuring the homeowner actually receives the notice.

The bank responded to the claim of lack of written notice by producing an affidavit showing that it did mail notice of the default to the address it had on file, as required by the mortgage contract language.

The court cited several previous cases from all over the country – Jackson v. Wells Fargo Home Mortg, (Alabama, 2014), Coleman v. BAC Servicing (Alabama, 2012), Deutsche Bank Nat’l Trust Co. v. Seplowitz (Connecticut , 2007), Ne. Savings F.A. v. Scherban (Connecticut, 1996) and Griffin v. Bierman (Maryland, 2008) – all basically holding that mailing a notice was sufficient to meet the notice requirement. Further, those cases held that actual receipt of notice is not necessary unless the mortgage contract requires it. Failure to receive notice does not give rise to a genuine issue of material fact that would preclude a court from granting summary judgment in favor of the bank. Most mortgage contracts don’t contain a provision requiring the borrower actually receive the notice of default in order for it to be deemed legally sufficient.

However, this is only one requirement of many held by the lender. In your case, there could well be other grounds on which your foreclosure lawyer can assert an effective defense.

The Neustein Law Group PA, Miami foreclosure attorneys, can be reached at (305) 531-2525.