Adequate Time to Remedy the Issue
Once a person fails to make payments on their mortgage for a property the lender’s notice cannot just order them to move out in the following three days. The reason why is that New Jersey has laws that require the lender to sue you and win the judicial battle before they can evict you. Nearly all such endeavors take between 120 and 180 days to complete. That means that foreclosure letters that fail to provide adequate time to remedy the issue will probably not be upheld in court. Unfortunately, the term “adequate” is quite subjective, and each state operates according to its estimate of how much time is necessary.
Ways to Defend Yourself Legally
While failing to make payments on your mortgage is a violation of your loan agreement, David Stanger reminds that you always have the right to defend yourself. Just like everyone is entitled to due process, regardless of what type of crimes they are being accused of, no bank can take away your right to argue your case.
As an example, with foreclosures, there are two types of defenses that you can evoke. The first one, which was mentioned briefly, is the technical defense that relies on the lender’s failure to meet the legal requirements when it comes to their responsibilities. More precisely, you would use this defense if the lender never sent you a foreclosure notice or failed to give you enough time to try and catch up on the payments.
The other alternative is to build a case based on the substantive defense that challenges how the lender behaved whilst entering into the loan agreement. This becomes applicable if you can prove that your lender committed fraud or that you actually made sufficient payments. Thus, you are basically attacking the terms of the loan itself, not the procedure that the lender used to start the foreclosure. Of course, when defending a foreclosure its best to hire appropriate legal counsel.
Negotiation Is Always an Option
Before venturing into a complex and tedious legal process, remember that you always have the right to try and negotiate with the lender. Just because you failed to make payments does not mean that they are thrilled to foreclose on you. In fact, according to David Stanger, companies are much happier to accept late payments and associated fees than they are to enter a foreclosure case. Doing so costs them a lot of money too, especially if the proceeding goes all the way to trial. That simply means that you should never rule out the option to try and find common ground. The best way to do so is to present your financial hardship and showcase all supporting documentation that gives your argument more credibility.
Although it is by no means a guarantee, helping the lender understand why you failed to make payments will make them more likely to work with you. This could lead to a change in the conditions such as increasing the length of the mortgage, thus, reducing your monthly payments. They could also stop the foreclosure effort and give you additional time to catch up before they turn the case over to the court. If you decide to not communicate with them at all, however, you might ruin your chances to do well in court as most judges frown upon non-responsiveness.
Seek Legal Representation
Since your lender will outsource the legal battle to a specialized law firm, you must also find someone who can help you gather the appropriate paperwork and argue your case well. Even though you may not like the added expenditure tied with lawyers during a time when you are going through a financial hardship, this is not something that you should sidestep. Trying to maneuver the legalities surrounding this process, even when you reside in a foreclosure-friendly area completely diminishes your chances of victory.
