Attacking the Validity of the Mortgage

Foreclosure is a really stressful situation and sometimes it can be hard to see ways to fight back.  However, there are ways to defend a foreclosure lawsuit.

How do you win a Foreclosure Fight?

One of the ways to win a foreclosure fight is by attacking the validity of the mortgage.  There are multiple ways to do this, including but not limited to, using defenses such as fraud, standing to sue, and proving the statute of limitations (“SOL”) passed.

What Constitutes Mortgage Fraud?

Proving fraud is not easy.  In Florida, fraud occurs when someone knows their statement is not true, their statement is of material fact, their statement causes an injury to someone else, the victim justifiably believes the statement that the person made, and the defendant had intent to trick the victim.  A foreclosure lawsuit should fail if the home owner can prove that the home loan was guaranteed based on fraud by the lender or its agents.  If there is a successful fraud defense, the home owner should be able to obtain recession of the mortgage or ask for money damages.

Does MERS have Standing to sue?

“Standing” is a legal term used to limit people’s participation in a lawsuit.  Thus, not just anyone can bring a lawsuit if they do not have standing to do so.  So, how can you challenge standing in a foreclosure case?  You may have heard of the Mortgage Electronic Registration Service, Inc. (“MERS”), which was created by the mortgage banking industry in order to simplify the assignment process.  A lot of times, MERS will be designated as a “nominee” for the lender.  MERS can act as an agent for the loan owner, but it does not actually possess a beneficial interest in the note.  MERS will track the mortgage for its members as it is transferred from one back to another.  When MERS is listed as a party on the mortgage as a “nominee,” there may be enough to challenge the lawsuit by their involvement negating the standing of the lender attempting to foreclose on the defendant’s property.

Is there a Statute of Limitations on Foreclosures?

Additionally, filing a lawsuit has to be done prior to the SOL, or the expiration date.  The SOL changes for every issue.  Florida Statute 95.11(2)(c) permits mortgage foreclosure lawsuits to be filed within five years.  If the foreclosure lawsuit is filed after the five years have passed, the borrower can assert a SOL defense and ask for the case to be dismissed.  The SOL starts to run when the last element constituting the cause of action occurs.


EPGD Business Law is located in beautiful Coral Gables, West Palm Beach and historic Washington D.C. Call us at (786) 837-6787, or contact us through the website to schedule a consultation.

*Disclaimer: this blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*

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