Danielle Kelley, Attorneys at Law
Danielle Kelley, Attorneys at Law

Foreclosure Defense

Florida is a "judicial foreclosure state". What that means is that a lender cannot just take your home, but first must file a suit in Court and prove that they are entitled to. As a homeowner you have many rights and defenses that you may not even realize.

I've been trying to obtain a loan modification for some time and nothing seems to be working, what can I do?

The loan modification process for clients has often been an extremely stressful situation. Many find themselves resubmitting documents repeatedly only to have the lender lose them, decline modification, ask for more documentation, and have to start all over again and again. Right now, the Office of the Comptroller of the Currency (OCC) is establishing policies and procedures to force lenders to have single points of contact. That should come as a big relief to those clients who have been forced to work with various people in various states on loan modifications.


An important thing to remember is that you are seeking a modification through your loan servicer or lender. The person you are working with may not be the actual person who has your note and mortgage, but are merely servicing your loan. Many clients find themselves promised information by these servicers only to receive a foreclosure complaint at a later date. This is because the entity who holds and owns the note and mortgage is the one entitled to foreclose. For example, although Bank of America may be your servicer, Freddie Mac may own your note and mortgage and file for foreclosure, or Bank of America may do so on their behalf. You have potential defenses should this situation arise. The main point to remember is that with so many parties involved, simply applying for a loan modification may not keep a foreclosure action from being filed against you.

Our office is committed to reaching those single points of contact, finding out through proper legal letters under various acts such as the Real Estate Settlement Procedures Act (RESPA) who actually owns your note and mortgage and who is merely servicing your loan. That enables us to make sure we are communicating on all fronts to protect you from having to resubmit documentation over and over, and to ensure that we take all steps available to know if a foreclosure complaint is coming.


I have been served with a Foreclosure Complaint. What should I do?


The first step is not to panic. Many homeowners feels that once the receive the Complaint they no longer have a home. That is not the case. Often homeowners do not realize the rights and defenses they have and either choose to vacate the property or not answer the Complaint. It is best not to choose either of these options. The most important thing you can do is provide some type of Answer to the Complaint, and you have twenty days to do so. You can file what is called a "Motion for Additional Time" in order to find counsel, or gather information to respond to the Complaint. Unfortunately, at this time many clients are in foreclosure because they were told to stop making payments by the lender in order to obtain a loan modification, and there are strong defenses to this. Generally, our office responds to a Complaint in one of three ways:


Motion to Dismiss: there are rules of pleading in Florida that the Plaintiff in an action must abide by. Specifically to mortgage complaints, there must be a verification under oath. There are many other procedural grounds such as failure to state a cause of action, etc. that you may move to dismiss under. For example, if the Plaintiff does not actually hold and own the note and mortgage.


Answer and Affirmative Defenses: in this instance the Complaint is actually answered, and the allegations against you are either admitted or denied, or you state that you are without knowledge. In addition, providing affirmative defenses at this point is absolutely key. If you do not provide certain ones in this Answer they will be considered potentially waived by the Court, and that means you cannot bring them up at a later time. Our office is committed to a full examination of your case and providing you with every potential affirmative defense possible. For example, if you were told to stop paying in order to qualify for a loan modification we generally file defenses of Estoppel, Waiver, and Unclean Hands.


Counterclaims: in this instance you still Answer your Complaint and provide Affirmative Defenses, but you also countersue the lender for damages you have incurred. This can arise in many different situations including a client who was told to stop paying in order to obtain a loan modification, or other potential claims. Our office is committed to evaluating your case and advising you on what potential claims you may have against the lender. The Florida Attorney General accepted a settlement against the major lenders, but left open private causes of action by homeowners. So you are still entitled to file your claims and you are not bound by the settlement.


Do I have to wait to have a Foreclosure Complaint filed in order to take action?

Absolutely not. The law in this area right now is fluid and changing rapidly, but certain rights are already available to you such as letters to find out who has your note and mortgage, the right to have your attorney contact the servicer and work with them on your behalf, and other things that can be done to protect your interests.


Do you have questions or do you want to make an appointment in this area?

Call us at +1 850 459-6399 or use our contact form.


Danielle Kelley, Attorneys at Law



(850) 391-7707


(850) 807-2547






Or use our contact form.


Mailing Address

2910 Kerry Forest Parkway

Suite D4 #415

Tallahassee, Florida 32309

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