366 Kinderkamack Road
Westwood, N.J. 07675

Phone: (201) 664-8855
Fax: (201) 666-8589

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Mortgage Foreclosure Defense

Homeowners facing foreclosure need to educate themselves in order to put up the best defense available to them. The following is provided for informational purposes only. Everyone in foreclosure should hire an attorney to represent them in the proceeding.

What is a mortgage?
A mortgage is an interest in real property (your home) that a homeowner gives to a lender as security for a loan. When you go to the bank to get a loan for your house, you give the bank a mortgage, or an interest in your property, that they keep as collateral in case you are unable to pay the loan back. If you default on the loan, the bank may force the sale of your home via a foreclosure action in order to recover the principal and interest remaining due on the loan.

What is foreclosure?
Foreclosure is a process by which the mortgagor's (the homeowner's) interest in the property is terminated. The mortgagee, or bank in most cases, applies to the court for a judicial sale and the property is sold to satisfy the loan.

What rights do I have in foreclosure?
This is the 64 thousand dollar question for homeowners.The answer is as follows: you have the right to force the bank to prove that they have the right to sell your home right out from under you.This may seem like a simple question and an overly simple answer; however, asking the bank to prove that they can sell your home has the potential to create an extraordinarily complicated legal battle that homeowners can leverage to their benefit.

Why should I fight the foreclosure if I owe the money? What do I have to gain?
Many homeowners think that just because they took out a loan and signed a mortgage, that is the end of the analysis.They feel that "I borrowed the money, so they can take my house." There is much more to the situation than this. What most people don't know is that there was a systematic and broad based fraud committed against the homeowners by mortgage brokers and lenders alike. In many cases, lenders authorized illegal fees on behalf of brokers. In other cases, lenders encouraged brokers to falsify documents and otherwise put homeowners into loan products that were entirely unsuitable for them. The existence of any of these circumstances in conjunction with your loan may dramatically change your foreclosure case.

The consumer credit laws are extraordinarily strong in the context of refinancing transactions.The Truth in Lending Act (15 USC § 1601, et seq.), the Real Estate Settlement Procedures Act (12 U.S.C § 2601 et seq.), The New Jersey Fair Foreclosure Act, and the New Jersey Consumer Fraud Act all provide strict rules and powerful penalties for lenders who violate these laws.

By pressing your rights against the bank, it may be possible for you to recapture equity in your home. If your lender violated the law when closing your transaction, you may have the right to rescind the transaction. If you are able to rescind, the bank will be forced to tear up the mortgage and the bank will have to sue you outside of foreclosure to recover the loan proceeds. In some cases, if the bank's violations were egregious enough, the court will tear up the note as well as the mortgage. Although this is an extraordinary remedy, it has happened in at least one Federal District Court case in New Jersey. Otherwise, the court may award damages to you that may be used as a set-off against the amount of money you owe on the note. Last, and certainly not least, if you are able to prevail on a counterclaim against your lender, the court may require the lender to pay your attorney's fees.

Depending on the violations present in your closing, you may be able to secure tremendous leverage against your lender that you can use to your benefit to negotiate a new loan with the lender. Therefore, it is of paramount importance that every homeowner facing foreclosure investigates their loan closing to determine if their rights were violated. If you are victorious, you may be able to prevent the foreclosure altogether.

So what should I do?
Contact an attorney and investigate your loan!  The lawyers at Denbeaux & Denbeaux stand ready to act on your behalf to keep you in your house as long as possible and fight the fraud committed by lenders and brokers. Call us at 201-664-8855, or click above on "Contact Us" to tell us your siutation.

The law firm of Denbeaux & Denbeaux defends homeowners by engaging in the prosecution of the rights of homeowners against predatory, illegal and unfair lending practices and foreclosures. Over the years, our experience and success has paid off for homeowners throughout New Jersey: banks have conceded, judges have time and time again ruled in our favor, and homeowners have won. New Jersey has some of the strongest homeowner and consumer protection laws in the United States; Denbeaux & Denbeaux has the case-tested experience to put those laws to work for you. If you are (or are about to be),in foreclosure, please contact one of our attorneys to see whether you have the right to halt the proceeding.

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