Winning Defenses to Foreclosure Take Center Stage

Omar J Arcia AttorneyBy Omar J. Arcia, Esq.
Foreclosure Defense and Consumer Bankruptcy Attorney


            In the quickly changing landscape of foreclosure cases in Florida, at least two new defenses are being accepted by courts in favor of homeowners. If these defenses are presented with the appropriate cases to a judge, it should result in a dismissal or final judgment in favor of the borrower. The key is knowing when and how to present these defenses in your case.


            The first defense is one we have previously mentioned in other articles; statute of limitations. The laws that set deadlines by when lawsuits must be filed are called statutes of limitations. Different deadlines exist for different types of lawsuits, and they vary by state. In Florida, there is a five (5) year statute of limitations to file a foreclosure case. A lender that filed a previous foreclosure case which was dismissed for any reason, CANNOT re-file another foreclosure case using the same date of non-payment, if the new lawsuit is filed more than 5 years after the date you stopped paying the mortgage. A key to a judgment in favor of the homeowner in the new action is proving that the default date on the old and new lawsuits are identical.


            Another winning defense is based on the language of the notice of default and acceleration sent by the lender prior to the foreclosure. This is also commonly referred to as the “demand letter.” If the demand letter you received prior to a foreclosure indicates that you should “file a court action” in order to assert your defenses to acceleration and default, then it contradicts the language of your mortgage. Florida is a judicial foreclosure state, unlike the majority of states in the U.S. This means that a lender seeking to foreclose in Florida must first sue the homeowner in order to obtain title to the property after non-payment of the mortgage. A homeowner is, therefore, not required to file a court action in Florida to assert defenses to foreclosure. However, many lenders drafted their demand letters incorrectly by using language that is only appropriate to non-judicial states.   Florida homeowners in foreclosure can use this mistake to their benefit.


            The attorneys at the Arcia Law Firm are privileged to successfully represent hundreds of homeowners in our community. We have foreclosure defense, loan modification and bankruptcy departments all within the same office, and we will gladly refer you to dozens of satisfied clients so you can be confident in your decision to hire our Firm. If you are struggling to make your monthly mortgage payments, if you are in the middle of a frustrating loan modification process, or if you just received a foreclosure summons, contact the Arcia Law Firm today at 954-437-9066 to schedule a free personal consultation with Omar Arcia, or visit to schedule your appointment online.


            Detailed explanations of different options available to homeowners are also discussed in a unique DVD developed by the Arcia Law Firm entitled “Fight For Your Home.” If you mention that you heard about the DVD through this blog post, you will receive a complimentary copy during your free consultation to discuss your case in detail with a member of our highly experienced legal team.

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