Foreclosure Litigation: How Lenders and Borrowers Resolve Disputes

Judicial foreclosure is a civil lawsuit in which the lender alleges default under the mortgage and seeks a foreclosure judgment. The borrower has typically 20 to 30 days after service to file an answer asserting defenses and counterclaims. A borrower who fails to answer faces a default judgment, which accelerates the foreclosure and eliminates the right to contest the lender's claim.

Foreclosure law counsel advises on the judicial foreclosure litigation process, identifies standing and procedural defects that can defeat the lender's claim, and advises on the strategic decisions available from service of the complaint through judgment.

A borrower stops a non-judicial foreclosure trustee sale by filing a foreclosure dispute court action supported by a lis pendens. A temporary restraining order in a foreclosure case must show a legal defect in the lender's process. Robo-signing and chain of title defects are the strongest grounds for injunctive relief against a non-judicial sale.

Real estate civil lawsuit counsel prepares the foreclosure dispute court action and TRO application to halt a non-judicial sale, advises on the wrongful foreclosure litigation standards for injunctive relief, and advises on damages when a sale is completed in violation of statutory requirements.

RESPA requires servicers to respond to qualified written requests and comply with loss mitigation requirements before advancing a foreclosure. TILA rescission in a foreclosure dispute voids the mortgage entirely, leaving the lender with only an unsecured claim. The CFPB's dual tracking prohibition bars a servicer from advancing a foreclosure while a complete loss mitigation application is pending.

Real estate dispute resolution counsel asserts RESPA and TILA claims as affirmative defenses in mortgage foreclosure lawsuits, advises on the CFPB dual tracking prohibition and private right of action, and advises on the TILA rescission remedy and its effect on the lender's security interest.

A lender who sends a defective notice of default or accelerates prematurely has not triggered its foreclosure rights. A default judgment in a foreclosure case is subject to vacation on a showing of excusable neglect, meritorious defense, and timely motion. A borrower who was not properly served with the foreclosure complaint can move to vacate the default judgment even after it is entered.

Default judgment counsel moves to vacate foreclosure default judgments on grounds of improper service and excusable neglect, advises on the conditions precedent to acceleration, and advises on notice of default defects that can defeat or delay the foreclosure.

Chain of title defects and MERS assignments are a primary litigation issue in securitized mortgage foreclosure cases. Robo-signing produced unverified foreclosure affidavits, and a borrower who establishes robo-signing can defeat the evidentiary basis of the lender's claim. A foreclosure judgment obtained on robo-signed documents is subject to vacation as fraud on the court.

Title fraud counsel challenges the chain of title in foreclosure lawsuits involving MERS assignments and robo-signed documents, advises on the standing requirements under the Uniform Commercial Code, and advises on the motion practice to exclude robo-signed affidavits from the foreclosure record.

The first mortgage holder's lien is senior to all subordinate liens, including second mortgages, judgment liens, and HOA assessment liens. A deficiency judgment is entered when the foreclosure sale price is less than the amount owed. Anti-deficiency statutes in most non-judicial states limit or prohibit deficiency judgments, and surplus funds from the sale belong to the borrower after senior lienholders are paid.

Property liens counsel advises on lien priority disputes in foreclosure litigation, challenges deficiency judgments based on anti-deficiency statutes, and pursues surplus fund claims for borrowers whose properties sold above the mortgage balance.

The most powerful foreclosure litigation defense is that the lender lacks standing to enforce the note. A foreclosing entity that cannot show a properly endorsed chain of endorsements, or that cannot produce the original note, may lack standing to enforce the instrument. A lender who cures a standing defect after filing does not establish standing retroactively.

Collateral mortgage counsel challenges the foreclosing entity's standing to enforce the note under the Uniform Commercial Code, advises on the endorsement chain and original note requirements, and advises on the dismissal standard for lack of standing in foreclosure litigation.

A statutory redemption right allows a borrower to reclaim the property by paying the outstanding amount within the redemption period. A foreclosure sale conducted without strict statutory compliance is voidable on multiple grounds. Post-judgment strategy in a foreclosure case requires immediate analysis of the redemption period, the purchaser's ability to obtain possession, and any remaining defenses that can delay or challenge the final outcome.

Commercial real estate finance counsel advises on statutory redemption rights and the exercise deadline, challenges defective foreclosure sales based on inadequate notice and procedural noncompliance, and advises on post-judgment strategy in commercial foreclosure cases.