Affirmative Defenses to Foreclosure Lawsuits in Florida

Florida - Affirmative Defenses to Foreclosure Lawsuits in Florida

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Under Florida law, a homeowner's reply to a foreclosure complaint may consist of the affirmative defense that the plaintiff lacks legal standing to obtain a judgment of foreclosure.

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Because many plaintiffs have no direct relationship with the primary lender, they are sometimes unable to furnish the primary loan and assignment documents that are required of plaintiffs who request judgments of foreclosure. Because many loans were often bought and sold by discrete loan servicers while the past some years, the loan and assignment documents have, in some instances, been misplaced.  This presents an opportunity for homeowners who are trying to stop a foreclosure sale.

The following is an example of how the "standing" defense may be asserted as an affirmative defense in a homeowners reply to foreclosure:

Plaintiff lacks standing to start this action. My primary mortgage was with _______ . This is not the same entity that commenced the instant action. Plaintiff has failed to supply the original, or certified copies of, the note and mortgage and all relevant assignment(s). In Florida, only the owner and owner of the mortgage and the note have standing to start a foreclosure action.
 
The "legal standing" defense is just one of some affirmative defenses that homeowners should consider when responding to a foreclosure complaint. Other affirmative defenses that a homeowner should consider include; (a) violation of the Truth in Lending Act; (b) Fair Debt collection Practices Act violations; (c) incorrect notice or assistance of process; and (d) lost payments.

A homeowner should thought about delineate the lender's complaint.  Under the Florida Rules of Civil Procedure, a plaintiff seeking a judgment of foreclosure is required to attach a copy of the Note to its complaint.  A  Florida homeowner who is served with a foreclosure complaint without a a copy of the Note should allege this as a defense. This may stop the foreclosure performance until the lender can supply a copy of the note. In foreclosure actions, any delay in the proceedings can be useful because it gives the homeowner an supplementary opportunity to find alternatives to foreclosure, along with a short sale or loan modification. 

In virtually all circumstances, it is useful for a homeowner to file an reply when served with a foreclosure summons and complaint.  Failing to reply a foreclosure complaint may consequent in the forfeiture of the legal defenses that are described above.

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