Posted on Friday, April 24, 2009
Lawyers are are pulling alot of old trick and some new ones out of their hats to delay residential foreclosures for homeowners. Here are a few more for you:
1. Wait until the last day to respond to a default notice before filing an notice of appearance.
2. File a motion to extedn the time alllowed to respond to each pleading...and then ask for more time.
3. A litany of affirmative defenses including TILA violations, failure of a condition precedent, deffective notice ot default and accelleration, failure to provide HUD notice (a notice required on certain government loans advising borrowers of a toll free number for assistance), estoppel, failure to apply payments correctly, setoffs and unclean hands.
4. And interesting line of defense is also developing around the practice of lender's counsel naming all unknown spouses, tenants and heirs as defendants in a foreclosure case. The puropse of doing this is of course to make sure that in case any such people exist, the foreclosure is not delayed for failure to name them and provide notice. We're seeing borrower's counsel raise the naming and service of process on those parties as incurring an unnecessary expense. The problme with that argument of course is that if lenders are required to first verify that such parties do not exist, doing do so - which may require actually sending someone to the property to inquire - may add even more to the cost.
As always, hiring a qualified attorney is essential in order to verify the applicability/correctness of any of the above to your own case.