From your question, it seems that your foreclosure action is still pending. As such, even though it has been more than 5 years since you last made a payment, the lender's action is still viable. If the current foreclosure action is eventually dismissed, if the lender re-files the action, you can defend the new foreclosure based upon the fact that the action was filed beyond the 5 year statute of limitations for actions on a contract, which includes actions to collect on a promissory note.
Once the note is no longer enforceable, you can file an action to quiet title to have the lien from the mortgage removed from the property. However, title insurance underwriters are currently looking at quiet title judgments very carefully and may not insure title based upon a quiet title judgment if you decide to later sell the property.
Attorney Edwards has given you good advice. I would point out that a quiet title action is not something that you should do yourself. You should hire an experienced real estate lawyer in your area to represent you in the action. Pursuing a quiet title action as a plaintiff is much more difficult that defending yourself in a mortgage foreclosure action.
Disclaimer: This answer is provided for informational purposes only, does not constitute legal advice, and does not create an attorney-client relationship. Actual legal advice can only be provided after completing a comprehensive consultation in which all of the relevant facts are discussed and reviewed.
You have done will defending your home, but don't go filing a quiet title action for extra practice unless it is necessary. Let sleeping dogs lie. Besides if their is a mistake in the title somewhere, that is not your fault unless you actually wrote the deed and mortgage yourself. If you go filing a quiet title action that you make you liable instead of someone else and they get to collect their attorneys fees from you for making them work when they did not have to.
You should only file a quiet title action if you need to clear up the title. That is usually when two or more people are claming the same title to the property or their is a property line dispute or a deed or mortgage had typos or was assigned improperly or filed improperly at the county recorder or for example, someone approaches you and says that their great aunt deeded your house to them before they died or a will contest.
I agree emphatically with both attorneys. So long as the current case is pending, an action to quiet title would not resolve anything, and if you were to file it, the Plaintiff would no doubt move to consolidate it with the Action of Foreclosure.
An Action to Quiet Title would only be appropriate if five years had passed since the default and also if there was not pending at that time an action of foreclosure or an action to collect the debt.
If there has been no activity in the case for two years, why is the case not dismissed ? Have you been defending this lawsuit by yourself ? If so, that is likely a significant part of the problem - non-attorneys do not know how to defend lawsuits. You should consult an experienced foreclosure defense attorney to obtain specific advice regarding the defense potential of your case.
Depending on all the details, it may be possible to force a dismissal or to take the offensive, and it may very well be possible to put on a viable defense to foreclosure perhaps relating to issues you are not even aware of. However, while people are allowed to represent themselves in court, it is a huge mistake to try. In order to do this effectively, you should obtain the services of knowledgable
foreclosure litigation counsel. This is not something that even most attorneys know how to do. We have quite a few clients who are themselves attorneys, yet have come to us for help because they understand this, and realize that in order to have a chance against the "big guys" they need really qualified people to help them.
Doing this properly is very difficult and detailed work. It is a very specialized area of law which even most attorneys do not fully understand, and there are few if any consumers who would be able to put together any sort of viable defense. I am puzzled at why any non-attorney would think he or she could successfully handle a litigated matter without an attorney highly qualified in the area of law in question. This is comparable to doing delicate surgery yourself or a loved one if you are not a surgeon. The law is very complex, litigation rules and procedures are very complex, the strategic considerations are very complex, and the area of foreclosure litigation is something even most attorneys know nothing about as explained above. Every case is different, what might be possible in this situation would depend on the exact details and legal issues in your case. Only a really qualified foreclosure defense will know how to even figure out what those are. An attorney who really
understands how this works needs to hear all the details.
If you care how this turns out, I urge you to find an experienced attorney who is knowledgable about
foreclosure defense to represent you. I see pro se people in court all the time. It is sad and frustrating to me - they are lost, cannot possibly know enough to be effective, and of course, they get walked all over, even when their issues are "winnable".
Please note that the above is not intended as legal advice, it is for educational purposes only. No attorney-client relationship is created or is intended to be created hereby. You should contact a local attorney to discuss and to obtain legal advice.
I agree with Ms. Edwards, as long as the bank has "accelerated" the amount due. In other words, the bank must make a demand in the foreclosure action that the full balance of the note is due and payable. That is almost always the case.