Common Defenses in a Foreclosure Action

Common Defenses in a Foreclosure Action

If you are facing foreclosure in South Carolina, you are likely afraid, overwhelmed, and uncertain about what the future holds. Defending against a foreclosure action is possible in certain circumstances, but can take a great deal of time and emotional energy. If you are in the middle of a foreclosure action, it’s important to have an understanding of the most common defenses to a foreclosure action.

Failure to Mitigate Damages

A mortgage between a lender and a borrower is a form of contract which binds both parties to the mortgage’s terms. Under contract law, a lender maintains a duty to try to mitigate damages if a borrower defaults on his or her loan payments. If a lender fails to take reasonable steps to mitigate its damages, such as working with a borrower to enter into a loan modification, the borrower may be able to assert a defense that the lender failed to make any attempt to mitigate its damages before pursuing a foreclosure action.

Unclean Hands

The doctrine unclean hands is an equitable defense which dates back hundreds of years. The principle of the doctrine is that a person who is requesting relief from a court should not be entitled to such relief if he or she has acted unfairly himself. Essentially, the doctrine asserts that a Plaintiff should be barred from obtaining the recovery sought because the Plaintiff itself acted improperly.

In a foreclosure action, the doctrine of unclean hands can be asserted as a defense to the action if the lender, loan servicer, or other entity suing the borrower has acted unreasonably or unfairly itself. Examples of circumstances which could lead to a defense of unclean hands include suing for foreclosure based upon fraudulent or forged document and misrepresenting a debt to a borrower.

Breach of Duty of Good Faith and Fair Dealing

As stated above, a mortgage is a binding contract between a borrower and a lender. Each contract carries with it an implied duty of good faith and fair dealing in which both parties agree to act in good faith with each other. If a lender acts in a way that is deliberately unfair to the borrower or “cheats” the borrower, the borrower may be able to raise a defense asserting that the lender or Plaintiff breached its duty of good faith and fair dealing.

What does a Defense do for My Case?

It’s important to understand that with regard to a foreclosure action, asserting a legal defense will not often end the lawsuit. A defense can, however, show a court that the Plaintiff acted improperly before or during the foreclosure action was initiated. This showing of wrongdoing can make a Plaintiff more amenable to working with you to save your home.

Facing Foreclosure? We’re Here to Help

If you are a South Carolinian who has been served with a foreclosure action, it’s critical to seek the help of an experienced foreclosure defense attorney as soon as possible, as you only have thirty days from the day that you are served to file an answer to the foreclosure action’s complaint. The team of attorneys at the Boger Law Firm are dedicated to helping those who are facing foreclosure defend against the action. To speak with a member of our legal team about your case, fill out an online case evaluation form or call (803) 252-2880 today.