K.I.S.S. FORECLOSURE DEFENSES

K.I.S.S. FORECLOSURE DEFENSES

I recall in grade school that one of my teachers would always say to "keep it simple stupid" and he called it the K.I.S.S. rule. Simply stated, the K.I.S.S. rule applies where you have unnecessarily over-complicated any type of undertaking. I remembered this rule when I was reviewing a foreclosure case where an owner had represented himself for several years before finally getting an attorney. The owner should be applauded for fighting off the bank for several years. However, upon review of the owner's defenses, I realized he had no idea what his actual defenses were. The owner simply took some defenses off of the internet from one of the foreclosure sites. Many of the defenses on those sites are outdated, i.e., most MERS defenses. Similarly, many of the defenses are too expensive for most clients to follow through on, i.e., deposing the robo-signers who assigned your mortgage in Miami or Texas. Simply stating these defenses in an Answer is one thing, but proving them in Court is another. Accordingly, I thought that I would illustrate some inexpensive and easily understood defenses that won't test the judge's patience.

Legal standing is a concept that asks: is the plaintiff the proper person to bring the lawsuit. In foreclosure cases, usually the holder of the note is the proper person to bring the lawsuit. However, the holder of the note is only the proper person to bring the lawsuit if the alleged holder was the holder of the note on the date the lawsuit was filed. If the plaintiff did not hold the note on the day the lawsuit was filed they lack standing and are not the proper person to bring the lawsuit. Lack of standing cannot be cured by becoming the holder subsequent to the date that the lawsuit is filed. Accordingly, if a bank lacks standing because the bank is not the holder of the note, then the bank has to start all over and re-file/re-serve the lawsuit again. Most notes that I see these days are indorsed in blank and are not dated. Therefore the date the bank became the holder of the note is almost always an issue.

In Florida, all residential foreclosure complaints must be verified. Verification means that the plaintiff or its authorized agent must sign the complaint under oath stating that the allegations in the complaint are true to the best of the verifier's knowledge. An issue often arises when the loan servicer verifies the complaint on behalf of the plaintiff bank. The servicer usually says that they are the "attorney in fact" for the bank and that the bank authorized the servicer to sign the verification. However, usually there is no evidence for this conclusion. The servicer is usually asking that the Court just take the servicer's word that the bank authorized the servicer to act on its behalf. One way to challenge this is to say that the complaint is not properly verified since the plaintiff bank did not verify the complaint and the servicer has not filed any power of attorney showing it is authorized to act on behalf of the bank.

Finally, there is the old standby defense of "failure to attach". All notes and contracts upon which an action is brought must be attached to the complaint. In foreclosure, this typically means that the note, mortgage, and possibly assignment of mortgage must be attached to the complaint. Often times one or all of these documents is not attached to the complaint. If this is the case you are likely entitled to a dismissal. Sometimes if you file a motion to dismiss for this reason, then you will see that the bank will file the missing document(s) with the court and pretend the failure to attach is cured. However, this is not the case. This is actually improper amendment of a complaint. The rule is clear that the documents upon which the action is brought must be attached to the complaint. Simply filing the mortgage that the bank should have attached to complaint as a stand alone document is not "attaching it to the complaint."

These are just a few simple and easy to prove defenses that are often more effective than arguing the more exotic defenses that make the news.