Defenses in Foreclosure Hearings

 

Michael Taliercio

Michael Taliercio

If you have failed to make payments on a residential or commercial mortgage, then the mortgage company can ask the trustee under the deed of trust to foreclose on the property.  The trustee is the neutral intermediary set by the deed of trust who brings a foreclosure proceeding if payments owed according to the note and deed of trust are in default.  In a foreclosure proceeding, a hearing will be held before the clerk of the superior court of the county where the property is located, and the trustee at that hearing will request the clerk enter an order allowing the property to be sold to the highest bidder at a public sale.  If you attend that foreclosure hearing, then you will have the chance to present evidence and arguments why the foreclosure sale should not be allowed to happen.

However, a foreclosure hearing is very limited and many facts regarding your situation probably cannot be considered by the clerk.  Generally, when the clerk is deciding whether or not to allow the public sale of a piece of property at a foreclosure hearing, the only relevant issues are: if the debt is valid, if a default on the debt exists, if the mortgage company has the power to sell the property according to the deed of trust, if all the appropriate people (such as the signatories to the mortgage documents and the property owners) were given proper notice of the hearing, if the documents presented to the Court by the trustee comply with all applicable laws, and if any other law would prevent the foreclosure from going forward.  Issues that the clerk cannot consider include that the mortgage company has been unprofessional or mean to you, that the mortgage company has been frustrating to deal with, that the mortgage company has refused to work with you even though you are in a difficult financial circumstance due to events outside your control (such as a medical tragedy or to unemployment), or that the amount owed for the mortgage on the property is a lot more than what the property is worth.  Arguing these sorts of issues to the clerk at the hearing will probably not prevent the foreclosure from going forward.  However, you may be able to take other steps to prevent the foreclosure.

If you are a facing a foreclosure by your mortgage company, then contact an attorney at Black, Slaughter & Black, P.A.  We may be able to help.