What is an affirmative defense?
An affirmative defense in foreclosure is a legal argument that assumes the lender's allegations are true but claims a separate reason why the foreclosure should not proceed, such as lender misconduct or improper notice.
When a homeowner receives a foreclosure complaint, an affirmative defense is a legal argument that does not simply deny what the lender claims. Instead, it accepts the basic facts (that payments were missed, for example) but presents a separate reason why the court should stop the foreclosure or award damages to the homeowner.
Affirmative defenses shift the burden to the homeowner to prove the defense, but they can be powerful tools in Florida foreclosure cases. Common examples include unequal dealing or a lender's failure to follow required procedures before filing suit, failure to provide proper notice to the borrower, violations of the Truth in Lending Act or other federal lending standards, payment application disputes, or breach of the mortgage contract by the lender itself.
Another frequently raised defense is lack of standing, where the homeowner argues the party suing does not actually own the note or mortgage. Lenders sometimes cannot produce a clean chain of title if the loan was sold or transferred multiple times without proper documentation. Waiver or estoppel defenses may also apply if the lender previously accepted late payments without penalty or promised to work with the homeowner.
Filing affirmative defenses in the answer to the foreclosure complaint is essential. If they are not raised in the answer, they may be waived and lost forever. Foreclosure defense attorneys in the Jacksonville Metro area can help homeowners identify which defenses apply to their specific loan and circumstances.