Asked over 3 years ago - Jacksonville, FLFlag
I received a summons and currently do not have a court date set. Originally I filed for an extension to seek leagal advise and the lawyer was unable to offer any assistance other than filing bankruptcy wich would allow me to pay more then the amount the bank worked out in intial review. I am unsure what my argument is. I aknowledge the debt and wish to continue to work with the lenders in liue of foreclosure.
The fact that the loss mitigation department says it is "working with you" does not mean anything at all. They may or may not do anything at all in terms of a change of terms, in most cases they do little or nothing. Clearly the fact that you are trying to do this did not stop them from starting foreclosure.
It sounds like what was discussed was a Chapter 13 bankruptcy, which clearly was not the answer for you. However, there may well be major issues and defenses which, if raised properly, could significantly change the balance of power and result in a better outcome. You do not have the option of working with the mortgage company "in lieu of foreclosure" - they made the call to start foreclosure and therefore you have nothing to say about it. If you do not defend, they will have all the marbles, and then when they either give you terms you can't afford or refuse to give you any, you will be completely defenseless.
What you need is an experienced foreclosure defense attorney or else you will leave yourself completely at the mercy of the mortgage company, which is a really bad place to be.
You need to speak with an attorney who also has a bankground in mortgage foreclosures and foreclosure defense not just bankruptcy. Bankruptcy as a remedy is the 800 pd gorilla of debt relief, however there may be other options. In certain circumstances a loan is subject to rescission because of Truth in Lending Violations or the failure to provide the required disclosures or notice of a right to rescind in a refinance situation.
There are instances when the party bringing the foreclosure action lacks legal standing to foreclose the mortgage. The mortgage may not have been assigned to them, or if the assignment is in favor of a trustee and their is a named benificiary of the trust, the documentation may be insufficient under Florida law. Florida has statutes that regulate land trusts or trusts involving interests in land.
If you are indigent or in substantial financial distress I would suggest contacting the local legal aid group. Furthermore the Florida Bar has a list of attorneys who have volunteered to assist defending foreclosures.
It sounds like the lender doesn't think that you're working with them, since they are now trying to foreclose. From your question it sounds like the debt is due and unpaid, you have no defenses, and can't work out a deal with the lender. Since you can't make the lender work with you if they don't want to, the only other optons are bankruptcy and allowing the property to be foreclosed.
The right hand does not know what the left is doing (or do they? We see this all the time in Bankruptcy). I recommend a lawyer right away, If you can't afford one and need some immedeate help...
The first thing you need to do when you get sued is file an Answer. The summons will tell you that you must “appear” by way of an Answer in 10, 20 or 30 days, “depending on the method of service.”
Many people think this means they have to go to Court and this is incorrect. 90% of all lawsuits end in Default Judgments because the defendant (person getting sued) did not file an Answer.
I recommend you go to the free form I have on my website at www.escapedebtnow.com . Print it out and fill it out as instructed. You must answer the numbered paragraphs on the Complaint by writing them into the appropriate lines in the Answer. The Answer will allow you to preserve your rights and will prohibit a default judgment (i.e. you did not show up) from being entered against you.
Mimic the paperwork you got when you got sued. Answer all the paragraphs of the Complaint by writing the numbers in lines 1, 2 or 3.
Almost 100% of attorneys will deny what is owed because they did not do the calculations and do not know what the basis for the number is…
When you file the Answer that is your “not guilty”. You have the right to make the person suing you (Plaintiff) prove their case, but you must also answer the complaint truthfully.
Make sure you fill in the name and address of the attorney suing you before you bring this paperwork to the Court. Mail it to the attorney suing you right away!
Disclaimer: This answer does not constitute legal advice. I am admitted in the States of New York, New Jersey and Massachusetts Only and make no attempt to opine on matters of law that are not relevant to those three States. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. Consult an attorney in your locale before you act on any of this advice. You should not rely on this advice alone and nothing in these communications creates an attorney client relationship. The opinions expressed herein are those of the author only and the fact that he has worked as an Assistant District Attorney; State Supreme Court Clerk; Special Assistant United States Attorney (Hawaii); Assistant Cornell University Counsel or Judge Advocate, United States Marine Corps should not be relied upon to assume that these statements reflect the policy of these organizations.
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