Foreclosure has been in the news a great deal recently, as the bad economy has forced record number of homeowners to miss mortgage payments. No doubt many of these foreclosures could be stopped through vigorous and resourceful legal action. If you are a home owner facing foreclosure, you may want to consider opposing it, and it will help to know some of your rights, but I have never known an individual to succeed pro se (without a lawyer) in preventing or reversing a foreclosure.

Foreclosure is really just a fancy way of repossessing a house. The proceeding is very "local," meaning that state and local laws control the whole process, and these laws can vary widely from state to state. In some jurisdictions, foreclosure is actually a court proceeding which may have accelerated processes but still requires legal notice and all the judicial procedures. But in many jurisdictions foreclosure is "extrajudicial," meaning that it takes place without the need for a court being involved. That obviously makes it faster and easier for the banks.
Foreclosure is a contractual right: it can only happen if you have agreed to let it happen when you purchased the item. Of course, in the case of mortgages, the right to repossession through foreclosure is practically universal. Because it is real estate, which has always been considered of the greatest importance in the law, the rules are highly particular, and any variation from the rules will usually be enough to prevent a foreclosure. If the foreclosure is "non-judicial," then you would need to be the one to bring the lawsuit to stop it. If the foreclosure is part of an eviction action, then you can usually assert irregularities as a defense. And if the foreclosure has already happened and was wrongful, you may have a substantial right to damages (money) to pay for the wrong.

A Few Typical "Problems" in Foreclosure
Foreclosures normally require very specific periods of notice and publication. They also require that specific information (all of this is controlled very particularly by state laws) be provided the home owner, and there are rigid time frames at every stage of the process. Failure to provide any of these notices, in proper form, in proper time, may be enough to stop the foreclosure.

Sometimes the company seeking to foreclose has taken actions to prevent the payment of money on the property. In one case in which I was involved, the bank miscalculated the amount of escrow to be used to pay for taxes and (wrongly) tripled the amount, adding hundreds of dollars to the monthly payments. My client could not afford this, but the bank refused to correct the situation and eventually brought a foreclosure action. My client had left an extensive paper trail of efforts trying to prove the bank wrong (which the bank completely ignored) and was eventually able to halt the foreclosure and receive damages for the bank's disregard of her legal rights. The foreclosure was wrong because the bank had itself miscalculated the amount of money due and had refused to accept the correct amount when offered.

As I have emphasized, foreclosures require stringent attention to details controlled by state law. One of my clients was able to stop a foreclosure because the bank could not produce the original title to the property. In this day of mortgage-backed securities, I suspect this is often going to be a difficulty for the banks. You should research the laws of your state to determine what foreclosure requires in terms of titles or proof of legitimate ownership. You might be surprised to discover that the company foreclosing on you does not have what it needs. Because this is a relatively new problem coming from a widespread (and largely unquestioned) use of mortgage-backed securities, do not be surprised if people-lawyers and judges included-initially scoff at your observations. Courts normally require complete adherence to the foreclosure rules, and most judges are willing to stop a foreclosure if something is missing. Likewise, this is a better area of the law than most to appeal a case you lose it in the local court because the courts of appeal also regard the law of real property as extremely important. ezinearticles