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GRAZI & GIANINO, LLP

ATTORNEYS AT LAW

STUART, FLORIDA


In many cases, regardless of the option the owner elects to pursue, some form of foreclosure defense will be necessary. One of the most common sets of facts is that the homeowner starts to get into financial trouble and seeks help from their lender to reduce payments until they can recover from the hardship.  The lender advises that it cannot even speak to them about a modification or others type of payment reduction until the owner is 90 days delinquent.  The owner then stops paying, causing damage to their credit, just to have the conversation with their bank. Unfortunately, the bank does not tell the owner that when their account goes 90 days delinquent, several automatic processes begin that may cause the process to get more complicated or even impossible. Many times the owner will find out that a payment reduction is not possible and when they ask to be reinstated, the bank has added several costly fees which must be repaid in full before the bank will agree to reinstate the loan. The owner then cannot make the full payment and the loan gets sent to foreclosure.


It is important to know that the bank is not able to act in the litigation without involving its attorneys. Another common problem is that the bank will tell the owner in foreclosure "not to worry about the foreclosure" while they are in loan modification talks. The owner will then not respond to important court deadlines and documents.  The bank’s attorneys (who most of the time does not get the message to hold off on the litigation) will continue the process.  Several times this has resulted in the properties being subject to foreclosure judgments and sometimes even sold before the owner finally seeks counsel.


One of the greatest rights of our country is the individual's right to due process and a fair hearing. This provides protection for all parties involved in any lawsuit. While the examples above can be overcome by an attorney, it is not guaranteed that the courts will agree and set aside judgments and sales. The reality is that the further along the process the more difficult it becomes to undo the problems caused by not taking the appropriate actions at the appropriate times.


There are many defenses available to homeowners, and all owners have the right to a defense. Simple nonpayment is no longer the bank’s biggest weapon against defenses. The lender’s haste to loan money during the real estate boom is coming back to haunt them now, as it has resulted in lost or faulty paperwork, lost Notes, etc.  Home ownership is not only the “American Dream,” it is usually an individual’s biggest investment and most expensive asset, however, it can also be that same person’s biggest liability. It should, therefore, be treated as such and given the most care to be protected so that the dreams of the homeowner do not become nightmares.