Affirmative defenses help you legitimize your case however for them to be effective they require to be pled, because making fuzzily won’t get you far thus to make the best out of them clearly indicate how they affect the ability of your lender to foreclose on you. Affirmative defenses available in Boston include:
Failure to give a notice
This is an affirmative defense against a mortgage acceleration and foreclosure; it draws its strength from the fact that most mortgage contracts require the lender to first serve the borrower with a right to cure notice before getting ahead with the above moves. The first notice is the 150 day right to cure the delayed monthly payments, which you must respond to within 30 days after receiving the notice. Failure to answer the notice will result to the lender issuing you with a 90 day right to cure instead of the 150 days.
Lack of consideration
For example if a borrower took out a loan from a financial institution using his house as a collateral, but the lender never disbursed the loan as per the terms of the loan contract whether entirely or partly, in this case the lender has no right to force you to keep your side of the bargain since no valid contract was ever created. In case there was a broker involved the defense still applies however you must proof the existence of the agency relationship between the broker and the current note and mortgage holder.
It is the most suitable defense for all foreclosures but only effective if you can provide evidence of the payments such as copies of cancelled checks attached to your answer with a label of exhibits. A foreclosure claim will be discharged immediately if the borrower is able to proof that he/she made payments to the lender and accepted by the lender with no quarrel; after all they continued to accept your payments, how can they foreclose on you for not making payments.
Original terms of the note and/or mortgage, the way they are enforced or the way the lender had them signed can be unacceptable; if the borrower can be able to convince the court that the foreclosure is unreasonable or unethical then s/he can use this defense.
Lack of jurisdiction
Where it appears that another person other than the plaintiff is the true owner of the claim at the time a foreclosure lawsuit was filed, the court will in this case lack jurisdiction over the case because he/she has no real interest and therefore not authorized to bring about the foreclosure.
Where the plaintiff is not registered to do business in the state of Massachusetts, therefore lacking the propensity to maintain a foreclosure against you and thus the court has no jurisdiction to preside the case in Boston.
The Original Lender Engaged in Unfair Lending Practices
If you can prove that your lender a federal or state law intended to protect borrowers from illegal; lending practices, then you can be able to fight your foreclosure; the laws include (TILA) Truth in Lending Act and its amendment (HOEPA) Home Ownership and Equity Protection Act.