In some cases defending the foreclosure action may be worthwhile. There are many defenses that can be raised but the most common include unconscionable terms, inadequate service or other procedural errors, the foreclosing party cannot prove it owns the mortgage, mortgage servicer made a significant mistake, or there were unfair lending practices. While it is not common for the defense of foreclosure to result in the mortgage being dismissed, a successful defense can compel the lender to work out a loan modification rather than go through the protracted process of foreclosing .

 

Judicial Foreclosure refers to a foreclosure action that occurs in the courts through civil lawsuits or judicial foreclosure orders. Initiating the defense of this type of foreclosure simply requires responding to the Summons & Complaint putting forth your defenses to the action. The burden of proof in this type of lawsuit is on the foreclosing part (the lender) who will have to prove that the foreclosure is legal irrespective of whether you defend the foreclosure or not, although without a defense, the foreclosure will usually go through.

To defend this type of foreclosure it is necessary to answer the summons and complaint. In most states, if you don't answer in the appropriate time allotted then you cannot assert your defenses later.



Non-Judicial Foreclosure takes place outside the courts and there is no automatic way to initiate the defense of the foreclosure. To put forth your defenses you the homeowner will have to file a lawsuit and you will have the burden of proof that the foreclosure should not be allowed. This is a significant difference when compared to defending a judicial foreclosure and makes it a much more time consuming, and expensive process.


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National Association of Consumer Advocates Law QA Verified Foreclosure Defense American Bar Association Foreclosure Defense National Association of Consumer Bankruptcy Attorneys Foreclosure Defense Nassau County Bar Association Foreclosure Defense New york State Bar Association Foreclosure Defense Suffolk County Bar Association

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