Ohio Foreclosure Defense Lawyer
Few people can afford to buy a home outright with cash on hand. Instead, they borrow the money they need from a bank or mortgage company. The bank takes a security interest in the money they lend through a mortgage on the property. If the borrower fails to make timely payments to repay the loan, the lender can foreclose on the loan, meaning they kick the owners out of the home and sell the property for whatever they can get for it. If that amount is not enough to cover the amount owed, the bank can still go after the (former) homeowner for the amount of the deficiency, garnishing their wages or taking other steps to collect the debt.
This all sounds pretty bleak, but foreclosures don’t always play out this way. Sometimes, the lender wrongfully forecloses – they’ve made a mistake somewhere along the line and shouldn’t be allowed to foreclose. A foreclosure defense attorney will have the knowledge and skills needed to fight wrongful foreclosures and help homeowners keep their homes. If you are facing foreclosure, you might have valid defenses in your favor that can keep the foreclosure from happening. The first step is contacting the attorneys at Kohl & Cook for a free consultation to determine what rights and options you may have in this complicated area of the law. Don’t lose your home to a foreclosure that shouldn’t happen or doesn’t have to happen. Call our experienced Ohio foreclosure defense lawyers today.
Home loans involve the possession of two important legal instruments: the mortgage and the note. The mortgage is the lien on the property; it is also known as a deed of trust. The note is the instrument that shows the debt that is secured by the mortgage; it is commonly called a promissory note. A party starting a foreclosure action in Ohio county court must be the holder of both the note and the mortgage with the right to enforce both instruments. As soon as home loans are issued, however, the debt instruments are often sold. In fact, they are often sold many times over. Sometimes the loans are securitized, which means they are chopped into pieces, combined with other loans, and sold on the market as investment vehicles. If the plaintiff can’t produce the note in court or otherwise prove they have legal standing and a right to foreclose on the property, a savvy foreclosure defense lawyer can get the foreclosure action dismissed.
Statute of Limitations
Every legal claim has a time limit known as a statute of limitations. If the action isn’t filed within the applicable statute of limitations, the person being sued can raise the statute of limitations as a defense and get the judge to dismiss the case. In Ohio, the statute of limitations for foreclosure actions is six years for claims that accrue on or after June 14, 2021. Separately, property liens expire 21 years after the mortgage has matured or become due. These time limits can work in the homeowner’s favor and keep an untimely foreclosure action from proceeding.
Courts don’t have the jurisdiction to hear cases filed outside the statute of limitations; judges interpret these provisions strictly and will dismiss a case if it is untimely. However, the statute of limitations is an affirmative defense, which means it is waived if not properly raised in court by the homeowner. The statute of limitations can also present complicated legal questions such as the date on which the clock started running. The skilled and knowledgeable foreclosure defense attorneys at Kohl & Cook will be sure to raise this defense appropriately whenever it is applicable. If effective, the result is that the foreclosure proceeding will be dismissed.
Inaccurate Amount Due
If you are in default on your mortgage, the lender is required to provide you with notice of the default, including the overdue amount and the amount needed to reinstate the loan. Sometimes the bank makes an error and overstates this amount. Had they told you the correct amount, you would have been able to make the payment and get yourself current. When the lender’s mistake is responsible for a foreclosure that could have been avoided, then justice requires they not be allowed to foreclose.
Prior Material Breach
In contract law, if one party is in material breach of the contract, it excuses the other party of their obligation to perform. In order words, if the bank materially breached their contract with you, your obligation to pay the mortgage might be excused, and they don’t have the right to foreclose. Proving that the breach is material is a key and complicated component of this defense, requiring the help of skilled and knowledgeable Ohio foreclosure defense attorneys.
Contact Kohl & Cook Today
Above are just some of the defenses you might have against foreclosure, and you may have other options available as well besides fighting a wrongful foreclosure in court. The first step is talking to an experienced attorney who can advise you of your options and plot a course with the best strategy in your individual case. Kohl & Cook is the law firm you need to help you keep your home. Call our experienced Ohio foreclosure defense lawyers today for a free consultation.