Challenging the Foreclosure Process

There are several things that you can do if you are facing a
foreclosure.

You can successfully challenge the foreclosure by:

  • Suing to Enjoin Foreclosure before It Occurs
  • Suing to Set Aside a Foreclosure that Has Already Taken Place
  • Filing for Bankruptcy

Obtain an Injunction from the Court

In certain states, you can obtain an injunction by filing a complaint in
a court. You will need an attorney to do this. The process is made more
arduous by a requirement that you give five days’ notice to the lender
before seeking to enjoin the foreclosure.

Show Immediate & Irreparable Injury, Loss, or Damage

You must show an immediate and irreparable injury, loss or damage or that
the acts or omissions of your lender will tend to render the final judgment
ineffectual. You may be required to give a bond in such sum as the court
deems proper.

Sue & Set Aside a Foreclosure

You can sue and set aside a foreclosure that has already taken place. But
you must provide evidence of irregularity, misconduct, fraud, or unfairness
on the part of the trustee or the lender that caused or contributed to
an inadequate price. The burden of proof is on you. Damages are the only
remedy. You cannot prevent a third-party purchaser from keeping your house
even if he is aware of your claim against the lender and even if he believes
your claim to be valid. Defenses like the absence of a delinquency or
violations by the lender of federal or state commercial law may not be raised.

Foreclosure can also be challenged by a counterclaim when the lender or
other new owner of the property seeks possession by a “detainer” action.

Question Everything Because the Burdon of Proof is On Them

Not every new owner is successful in obtaining possession. It may overlook
the proof that is necessary to show that it the foreclosure was conducted
properly and that it was entitled to foreclose. You may and should contest
every assertion made by the new owner, even if you do not have a lawyer.
The new owner has the burden of proof. If it fails to meet that burden,
the court may conclude that you are entitled to remain in possession even
though you no longer own the home.

Filing Bankruptcy before foreclosure occurs is the generally the shortest
and simplest procedure. A bankruptcy filing automatically prevents foreclosure
temporarily and sometimes permanently. You get the opportunity to cure
a default in your payments by paying the delinquent amount in installments
over a reasonable period. You must file before the foreclosure sale takes
place, a time that usually is only 20 or so days after the foreclosure
process starts with a letter to you or a notice in a newspaper.

You can file for bankruptcy after foreclosure and set aside the foreclosure.
Even you do you not succeed in setting aside foreclosure, bankruptcy will
discharge all or part of a deficiency judgment against you for any amount
still due after the foreclosure occurs.

For additional information regarding foreclosures, please don’t hesitate to
contact a Dallas foreclosure attorney from Allmand Law Firm, PLLC today!

By | 2017-12-13T02:16:34+00:00 September 24th, 2008|Foreclosures|Comments Off on Challenging the Foreclosure Process