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.

HOA Foreclosures Exist–Here’s What You Should Know

If you are a homeowner in South Carolina, your property may be governed by a homeowner’s association (HOA). As a member of an HOA, you are likely subject to monthly or yearly assessments to the association. If you find yourself in a sticky financial situation, paying your HOA dues may be low on your list of priorities. It’s critical to make these payments, however, as failure to do so can actually put your homeownership in jeopardy.

The Power of the South Carolina HOA

A homeowner’s association is a nonprofit organization which collects monthly or yearly dues—otherwise known as assessments—for the upkeep of the neighborhood or subdivision. Don’t be fooled into thinking that your HOA is just a neighborhood group that keeps the pool cleaned and the lawn mowed, however; in South Carolina, homeowner’s associations have a great deal of power. The authority of your HOA is laid out in governing documents called bylaws, and the rules put in place for homeowners are established in the HOA’s covenants, conditions and restrictions (CC&Rs).

When it comes to homeowner’s associations, there’s one important fact to take away from this article: unless your HOA’s assessments are specified as optional, they absolutely must be paid. The repercussions for nonpayment can be much more severe than a stern letter from the association or nasty stares from the HOA’s board members.

HOA Liens

In South Carolina, homeowner’s associations can place a lien on your property if you have not paid your association dues or fail to pay any fines levied against you for nonconformity with the HOA’s CC&Rs. If you don’t pay off the lien, then you won’t be able to sell your home in the future, or will have to satisfy the lien from the proceeds of your home sale.

HOA Foreclosures

The most significant power that your HOA has is one that is not common knowledge to homeowners—in South Carolina, your homeowner’s association can actually initiate an action for foreclosure of your home for nonpayment of your HOA assessments or unpaid fines. Put another way, your homeowner’s association has the power to take your home away from you if you do not pay your assessments or fines.

To make matters worse, an HOA foreclosure does not eliminate your mortgage obligation; rather, your lender will expect you to make your regular monthly mortgage payment for a home that you don’t own anymore. Failure to make your mortgage payments can lead to another foreclosure action by your lender.

While HOA foreclosures seem like an anomaly, these actions do occur, and they happen more frequently than you might think. In fact, there are law firms in South Carolina whose sole business is to foreclose on homes on behalf of homeowner’s associations.

Facing Foreclosure From Your HOA? Contact Us Today

If your South Carolina property is being foreclosed upon by your homeowner’s association for delinquent assessments or fines, it’s critical to seek legal assistance as soon as possible. The Boger Law Firm is dedicated to helping those who are facing HOA foreclosures, and have fought on behalf of clients facing foreclosure for over a decade. Don’t wait until it is too late to get the help you need to save your home—to schedule an appointment to speak with a member of our legal team about your foreclosure today, fill out an online contact form or call (803) 252-2880 today.