Run, do not walk, to a lawyer who specialized in foreclosure defense. If these mistakes are as severe as you suggest, you may well be entitled to relief. He certainly can file a counterclaim--it doesn't require a new and different suit.
Don't try this on your own: that would be the equivalent of do-it-yourself heart surgery!
I would have to agree with my colleague. You need to consult with foreclosure defense attorneys. It may benefit you to consult with a few attorneys and find the one right for you. Keep in mind that sometimes procrastination can your hurt your case. Good luck!
The asking of and answering general questions does not establish an attorney-client relationship. Please consult with an actual attorney in your local area before deciding on a course of action.
You don't say when this occurred, but I would imagine it was done between 2005 and 2008 - a period of time when homes were valued artificially high in order to qualify them for additional financing. These loans were then packaged up by the lenders to sell on the market as MBS (mortgage-backed securities). Any home appraisal has to use other homes to establish a value for the home being appraised. They use homes that have recently sold or are on the market, but the homes are supposed to be similar to the one being appraised. Where they cannot find a similar home, they must add or subtract value to accommodate the differences. One of the problems you have here is that your dad probably already used the money and doesn't have it to pay back, correct? I think you should speak with a foreclosure defense attorney before your period for filing an answer (and counter-claim) expires. They don't give you very long to do this, so make an appointment right away. When you hire an attorney, they will most likely have to request an expansion of time to file a proper answer. Good luck.
My answer is of a general nature and should not be construed to be legal advice nor creating an attorney-client relationship. Carol Johnson Law Firm, P.A. practices in the area of Wills, Trusts, and Estates, Disability - with a particular focus on providing Special Needs Trusts for disabled children and adults.
From the facts you describe, you likely have a basis for a counterclaim as well as numeras affirmative defenses to the bank's suit against you. If the suit has already been going on and this has not been addressed, then your attorney can file a Motion for Leave to Amend Answer and File Counterclaim, and provided the motion is convincing, the judge will allow it, and you can proceed forward against the bank with a counterclaim. This has many advantages in the overall law suit to foreclosure because it applies much more pressure against the bank to work out a loan modification. It can also form the basis for initiating a settlement dialogue where the bank agrees to not issue a 1099 on the basis the foreclosure suit is dropped as part of a global settlement and mutually agreeable language to credit bureaus indicating you and bank had cross claims that have been resolved etc. Any competent foreclosure defense attorney can help you with this.
This is not intended as legal advice nor does it form an attorney-client relationship. It is merely some suggestions to point you in the right direction since the legal world can be confusing and complex to navigate. Give me a call at 727-674-5310 if you want to set up a free consultation.
If that is intact what has occurred, you must go to foreclosure attorneys that has been fighting the banks. banks have committed fraud against homeowners. There are rules and law that protect you.
There are many moving parts to this type of situation. You need to bring all your closing docs with you to the attorney; any correspondence that form the bank to your dad. And let the attorney start representing youth the bank. When they see a foreclosure defense attorney is representing someone with foreclosure, you have a higher likely hood for them to play ball and your dad not lose his house.