Common Defenses in a Foreclosure Case

A defense is a reason why the plaintiff should not win the case. You tell the Court your defenses when you Answer the Summons and Complaint or when you ask the Court to Vacate a Default Judgment. You must then prove your defenses in Court. If you prove your defenses then the plaintiff will lose and you will win the case.

Below are examples of defenses to a foreclosure case. Read the explanations carefully to see if any of them apply to you.

Everyone’s case is different. Some of the defenses may apply to you and most may not. You can also tell the Court a defense that is not listed below.

 

Common Defenses

Lack of standing to sue
Use this defense when you do not think the plaintiff is the legal owner of your mortgage.

Improper service of the Summons and Complaint
Use this defense if the plaintiff did not deliver the papers to you the right way. Read How are Legal Papers Delivered.

Partial or full payment
This defense is used when you have paid all or part of the money that the plaintiff is suing you for. The amount of the debt listed in the Complaint is wrong.

“Help for Homeowners in Foreclosure” notice was not served with the Summons and Complaint
Use this defense if you didn’t get this notice with the Summons and Complaint. The notice most be printed in bold large type on colored paper.

90-day pre-foreclosure notice was not done the right way
Use this defense if you did not get this notice at all, if you did not get two copies of this notice, or if the plaintiff started the case before the 90 days was up. Make sure to say what was wrong. The law says that the plaintiff must send you a 90-day notice along with a list of five housing counselor agencies in your area to call for help. See 90 Day Pre-Foreclosure Notice.

An active servicemember is an owner of the property and on the mortgage
Use this defense when you or someone in your home is on active military duty. You should also contact the JAG Corp. to get an attorney. There are special rights for servicemembers and you may be able to get a stay of the foreclosure.

Homeowner’s mental disability or incompetence
Use this defense if the homeowner was not mentally competent at the time he or she signed the mortgage loan. You should also ask the Court to appoint a Guardian Ad Litem for the homeowner.

The mortgage loan is illegal because the closing or sales process or the mortgage loan terms were unfair
Use this defense when something fraudulent or unfair happened during the loan process. Make sure to say all the reasons why you think the mortgage loan is illegal. What you say depends on what happened to you. There can be many different reasons for this, like, the broker lied and told you that you would get a better deal on your mortgage then you got, or the interest rate is much higher than you qualified for.