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The Final Four...affirmative defenses.

 Posted on March 16, 2012 in Foreclosure

As it is now mid-march, it is time for the Final Four…affirmative defenses that can be raised in a Mortgage Foreclosure Defense

1. Unclean hands: Foreclosure actions in Illinois are filed with the Chancery Division of the Court in the County in which the property is located. In order to initiate a legal action in the Chancery, the parties must “be before the court with clean hands.” This essentially means that the lender cannot have engaged in any actions that have contributed to the borrower being in default.

2. Standing: a party must have standing for the Courts in Illinois to have jurisdiction over a matter involving that party. All indispensable parties must be included in the action and the Plaintiff must be in possession of the debt. If a party lacks standing, it cannot being a law suit in the Illinois courts.

3. Fraud: lenders have been known to commit fraud, in fact, in some cases homeowners have been induced to sign loan documents because of lender fraud. There are several different elements that must be examined to determine if the lender engaged in fraudulent actions. Two examples: a) was the appraisal over-inflated? b) were any fiduciary obligations violated?

4. Lack of Jurisdiction: a court lacks jurisdiction over a matter if it cannot establish that the owner of the claim or the Plaintiff is not otherwise the real party in interest and is not shown to be authorized to bring the action before the Court. This is linked to the standing affirmative defense.

There any more affirmative defenses than these four and the ones mentionned in prior posts. Again if you beleive that one of the above, or any from prior posts, applies to your loan, or you are in foreclosure proceedings or struggling to make mortgage payments, please contact an attorney for advice.

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