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|Posted: Thu Dec 04, 2008 2:01 am GMT Post subject: Top 3 Affirmative Defenses.
|1. Failure to Give Notice
Most mortgages require the sending of a Notice of Default prior to the acceleration of the
loan. According to the case of Yelen v. Bankers Trust Co., the failure to give such notice
is a defense to acceleration and foreclosure. Citing case law such as this in your
Affirmative Defenses is very helpful in legitimizing your case, as all Affirmative
Defenses should be specifically pled. This means that you shouldn’t just use vague
defenses such as, “the bank didn’t do the right thing.” Instead, you should state exactly
what it was that they did wrong and why or how that wrongdoing affects their ability to
seek foreclosure against you.
2. Lack of Consideration
Lack of Consideration is most effectively used as a defense when you have taken out a
loan, using your home as collateral, but the loan money was not disbursed by the lender
in accordance with the terms of its loan commitment, either in whole or in part. If the
bank that loaned you the money did not follow through on their promise to you, then you
shouldn’t be forced to follow through on your promise to them since no valid contract
was ever created. If it was the mortgage broker who misled you, instead of the bank, you
may still be able to use this defense; however you must also prove that an agency
relationship existed between the mortgage broker and the current holder of the Note and
3. Accord and Satisfaction (a.k.a. Payment)
Payment is the best defense to any foreclosure action, but it becomes much more
effective when you can actually prove that payments were made. Copies of canceled
checks are always of help and should be attached to you answer and labeled as Exhibits.
A foreclosure claim must be discharged if the person against whom the claim is asserted
can prove that payment was made to the lender and accepted by the lender with no
dispute. If the bank has continued to accept your payments, they don’t have the right to
foreclose on your home for not paying.
That's one tip, I was wondering if i could get your feedback. Im putting together a new course for homeowner's call "How to Stop Foreclosure NOW,"
I really love you feedback on whats your #1 question is related to foreclosure as a homeowner.
To say "thank you" for helping me out, you'll get a copy of new course before we release in into the market.(should be ready in a few weeks). This course will sell for between $79-$99, but ill share it with you for free just for giving me feedback.
Its quick and only takes 1 minute. You can type your question here:
hxxp://homelock.blinkweb.com (just change "hxxp" to "http")
Thanks in advance
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