What is a Lender’s Burden of Proof in Foreclosure?
Before lenders can foreclose on a home, they must file a lawsuit against the homeowner. Unless the homeowner does not respond to the lawsuit, lenders must also appear in court, argue their case, and refute arguments from the other side that they may not have the right to foreclose. When arguing their case, lenders have a burden of proof, meaning the burden is on them to show that they have a right to foreclose on the home. Below, our New Port Richey foreclosure lawyer outlines the challenges lenders face, as well as the important evidence they must present.
What is the Burden of Proof for Lenders in Foreclosure?
Many homeowners believe that if a lender has threatened them with foreclosure, it is only a matter of time before they must vacate the premises. This is not true. Not all foreclosure cases are open and shut. Before a lender can foreclosure, they have the burden of proof to show that they have legal standing to do so. Legal standing essentially means that the lender has the legal right to file a lawsuit against the homeowner and foreclose on the home.
It is not always easy for lenders to prove they have standing unless they provided the mortgage and never transferred ownership of the loan to another lender. In these cases, the argument for foreclosure may be fairly clear cut. However, this rarely happens. Mortgage lenders often bundle home loans into investment packages and sell them to other mortgage companies, lenders, and servicers. In fact, the majority of mortgages are bought and sold several times during their lifetimes.
After a homeowner defaults on their mortgage, the lender must show the original loan documentation. This is often very difficult to do and in fact, some of the biggest lenders in the country, including Wells Fargo, have been charged with billions of dollars’ worth in penalties for forging documents to win foreclosure cases.
Evidence Lenders Must Present
To prove their case, and the fact that they have legal standing to proceed with a lawsuit, lenders need important evidence. The strongest types of evidence can include:
- Loan documentation
- The promissory note
- Copies of the notice of default sent to the homeowner
- Any payment arrangements the homeowner agreed to
- Proof of received mortgage payments
- Sworn testimony from servicers or employees who are aware of missed payments
- Evidence showing compliance with state and federal foreclosure laws
Our Foreclosure Lawyer in New Port Richey Can Help with Your Case
If you are a lender who needs to prove their case, our New Port Richey foreclosure lawyer can help. At Messina Law Group, P.A., our experienced attorney has helped many individuals and entities through the foreclosure process, and we will put that expertise to work for you to help you obtain the most favorable outcome possible. Call us today at (813) 492-7798 or contact us online to schedule a consultation and to learn more about how we can help with your case.
Source:
leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0702/0702.html
