Of all the steps in defending a
foreclosure in court, actually going to trial to argue and win a
case may seem the most stressful to the average homeowner. But
depending on how much care and preparation has gone into their
defense to the bank's positions and their own claims against the
lender, the trial may proceed much easier than they expect.
But in fact, most cases never even
get to the trial stage of the legal process and all of the
research and preparation serves to force the parties to
compromise and set up some sort of mutually beneficial
agreement. Lawsuits are either thrown out of court for one
reason or another, ruled in favor of one party by summary
judgment, or the plaintiff and defendant get together to work
out a solution like mortgage modification that does not involve
the court. This is almost always a better solution than the
judge would be able to rule on anyway.
It is worth remembering that
most of the work done by homeowners will be focused on shooting
down at least one element of the bank's case, and this is what
the defense will focus upon. In the case of foreclosure, this
will be a breach of (mortgage) contract case, and the bank will
have to prove four elements. These are the following:
- A legally binding contract
existed between the parties.
- The lender did everything
required under the contract.
- The borrowers failed to
meet the requirements of the contract.
- The borrowers' breach of
contract caused the bank actual damages.
In their initial complaint, the
bank does not have to state what the elements are of the
position they are relying upon. This leaves is up to the
homeowners to determine the elements and begin trying to
disprove each of them. But borrowers have a lot of material to
work with in disproving these elements of the case, and all they
have to do is create enough doubt in the judge's or jury's minds
to prevent a ruling in favor of the mortgage company.
There will be a lot of methods
homeowners may use to disprove the bank's positions, much of
which are beyond the scope of a single article. Impeaching
witnesses by pointing out bias, the impaired ability to observe
the facts, and prior inconsistent statements is a start in
knocking down any witnesses the bank brings. The bank may
attempt to bring in witnesses to convince the decision makers
that homeowners should lose their houses, despite any laws
violated by the bank in the first place or even a predatory
lending situation.
There are also numerous tools
that can be used in the courtroom that follow the standard
structure of a lawsuit. Homeowners should research how direct
examination, cross examination, exhibits, making and responding
to objections, witnesses and expert witnesses, opening
statements, and closing arguments will fit into their case.
Homeowners can use these tactics, as well as see them used
against the borrowers by the mortgage company, so it is
important to understand how they fit into the overall trial.
This is the part of the entire
legal defense to foreclosure process where homeowners may wish
to consult with an attorney, either to represent their case in
court or simply to provide an awareness of how the trial will
work. Both of these options will cost money, of course, but they
can help prevent a home from being sent to a quick foreclosure
because trial rules were not followed. The value of
high-quality, relevant legal advice simply can not be
overstated.
Homeowners, though, can try and
defend the case on their own and have been successful in the
past in doing so. Thus, there is simply no reason to become
stressful at the though of arguing a case in court designed to
stop foreclosure for good. After all, the case will most likely
be settled long before the trial, and homeowners who do defend
their foreclosure are much more likely to win or get a draw than
those who simply give up on saving their homes and allow the
bank to get a quick victory.
