My bank has started foreclosure proceedings on my house. The court filing indicates that they have the wrong legal address which they are asking the court to change. The document states 31 minutes 04 seconds west 133.86 feet when it should be 31 minutes 04 seconds east 133.86 feet. Can the bank foreclose if they issued the mortgage for the wrong legal address?
Chapter 7 Bankruptcy Attorney
You do not have a defense yet. Check the legal description on BOTH your mortgage and your deed. Are they the same? Which legal description is correct? You may need to to consult the county recorder and then a surveyor to determine which legal description is correct.
If the bank attached a copy of the mortgage to its complaint, with the correct legal description, then reciting an incorrect legal description elsewhere in the pleadings is not a defense. The bank should correct its pleading though.
If the bank actually has the wrong legal description on its mortgage, then it will have to amend its complaint to ask for "reform" of the mortgage deed to show the correct legal description intended by both parties at the time of signing.
Reformation is usually granted pretty freely if there are witnesses available as to the intent of the parties. You are an available witness and you are probably going to have to admit that you intended to mortgage your home. The alternative is that you intended to trick the bank, which clearly you did not intend.
If you file an answer and mention the incorrect legal description as a defense, it will probably get you some extra time in the home. Moreover, it evidences a general sloppiness in the mortgage foreclosure procedure. Maybe the bank has other errors in this foreclosure. If you don't file a timely answer, you will lose automatically.
You should be saving as much money as you can while you are not paying your mortgage. Money is power. It gives you the power to move with dignity if you have to, It gives you the power to possibly bid on a place to lease to own or land contract. And it gives you the power to get an attorney's advice about defending this foreclosure or a possible Chapter 7 or Chapter 13 bankruptcy.
Lots of attorneys do not charge for the initial consultation. You need a attorney now, and an attorney could save you many times the cost of their legal services. Save your money. Get a lawyer. That's what the fat cat cats do to stay fat. You should too. Good luck.
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Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.