What is Wrongful Foreclosure?
Don’t Lose Your Home, Fight for it!
Even if a foreclosure has already taken place, you may still have legal options to hold the lender accountable for a wrongful foreclosure. For example, you may be able to sue to set aside a foreclosure that has already occurred, may be able to file a counterclaim in the detainer action after foreclosure or may even be able to set aside the foreclosure through thebankruptcy process if you file after foreclosure.
At our Nashville firm, we recognize the distinct difference between wrongful foreclosure and foreclosure defense. Foreclosure defense involves actions taken to avoid foreclosure in the first place. Wrongful foreclosure refers to litigation between the borrower and lender after the foreclosure has already taken place. We represent homeowners in these proceedings throughout the Nashville area of Tennessee, using our knowledge and skill to properly assert their rights as we seek to stop foreclosure in the first place or seek legal recourse after the fact. By contacting Attorney Cain, you can find out what rights and options you have in these matters.
Setting Aside a Foreclosure
Should you choose to move forward with a lawsuit against your lender for wrongfully foreclosing on your property, the burden of proof will lie on your shoulders. You will need to prove that there are valid grounds to set aside the foreclosure, and these are limited to “some evidence of irregularity, misconduct, fraud, or unfairness on the part of the trustee or the mortgagee that caused or contributed to an inadequate price.” If a third party has already purchased the property, this does not mean that you will be able to get the property back – even if you win your case against the lender. You will be limited to seeking financial damages.
Examples of wrongful foreclosure include: a breach of contract, failing to apply payments to an account, continuing with foreclosure after a person has filed for Chapter 7 or Chapter 13bankruptcy, changing the interest amount without notification, or accepting a partial payment but continuing with the foreclosure.
Filing a Counterclaim
In some cases, a Nashville foreclosure may be challenged by filing a counterclaim when the lender or other new owner of the property seeks possession by a “detainer” action. The burden of proof will lie on the new owner in these cases, meaning it may be helpful for the homeowner to challenge the case from every angle. For example, the lender or new owner may be required to show specific proof that you defaulted on your mortgage and that the foreclosure was conducted properly. If they cannot meet the burden of proof, you may be able to remain in possession even though foreclosure has already occurred.
Filing Bankruptcy after Foreclosure
It may also be possible to set aside a foreclosure through the bankruptcy process, by asserting procedural or substantive grounds. Examples of procedural grounds may include: failure to give personal notice, failure to give notice as required by the deed of trust or defects in the foreclosure sale. Examples of substantive grounds may include: refusal to provide a payoff amount or allow full payment to avoid foreclosure, the borrower was in military service at the time of the foreclosure or fraud on the part of the lender.
Helping You Hold Onto Your Hard-Earned Money
Make sure you discuss your legal options with an experienced attorney if you have been the victim of a wrongful foreclosure. You have options, and by reviewing these with you we can determine how best to approach your case. We can also help if you have fallen behind on your mortgage payments or have recently been threatened with foreclosure, taking preventative action to save your home or perhaps work out an alternative, such as a short sale or deed in lieu.
People can get into a financial bind for many reasons, including a divorce, unanticipated medical expenses, and making too many purchases using high interest credit cards. Our firm knows the anxiety that can result from too many debts, especially when money problems lead to the loss of your home. We will review your entire financial situation, and discuss your debt relief options, including filing for bankruptcy, loan modification and debt consolidation. Our legal team will develop a comprehensive plan to help protect your assets and create a brighter financial future. So contact attorney Cain at Cain & Associates, PLLC today.