This infographic was created to counter the common misconception that defending a foreclosure aciton is merely delaying the inevitable. To the contrary, it can be incredibly beneficial to homeowners to mount a full defense. That being said, the vast majority of foreclosure cases will not result in a "Free House." Nothing in this infographic is intended to provide legal advice to homeowners facing foreclosure. Every foreclosure case is different, and the only way to be truly informed about your legal options is to speak with a lawyer.
Failure to Reform: The legal description of a property in a mortgage is what determines the collateral securing a homeowner's promise to pay the bank back what was borrowed. Unlike a street address, a legal description will often contain incomprehensible metes and bounds descriptions of a property which are sometimes miscopied onto a mortgage document. When this happens, the bank must bring a claim to reform the mortgage. If the bank fails to prove this claim, the final judgment of foreclosure will describe the wrong property and will likely result in a money judgment, dischargeable through bankruptcy. See Losner v. HSBC Bank, 190 So.3d 360 (Fla. 4th DCA 2016).
Res Judicata: If the bank has foreclosed on you before and their action was involuntarily dismissed, it is likely that there is at least a portion of your loan that the bank can no longer collect. Much like "Double Jeopardy," the bank only has one chance to collect past due payments. If they try and fail, the past due amounts could be uncollectible under the civil doctrine of Res Judicata.
Statute of Limitations: The statute of limitations to enforce a breach of contract in Florida is typically five years. However in Bartram v. U.S. Bank, N.A., the Florida Supreme Court recently held that each defaulted mortgage payment re-triggers the statute of limitations to bring an action to enforce a promissory note. While this may mean that a bank can re-foreclose on a default date within five years, it also means that what the bank can collect will be limited to payments due within the five year time frame. The statute of limitations may also limit a bank's ability to reform an incorrect legal description.
Important Disclaimer: Nothing in this infographic is intended to advise you on your particular legal matter, and does not establish an attorney-client relationship. This infographic provides general information about certain defenses in foreclosure actions in the State of Florida, but you must contact a lawyer to learn about the defenses available in your case.
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