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Foreclosures

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Where Foreclosure is No Longer a Dirty Word!

Foreclosure is the legal process by which a mortgagee, or other lien holder, usually a lender, obtains a termination of a mortgagor's equitable right of redemption, either by court order or by operation of law (after following a specific statutory procedure).[clarification needed] Usually a lender obtains a security interest from a borrower who mortgages or pledges an asset like a house to secure the loan. If the borrower defaults and the lender tries to repossess the property, courts of equity can grant the borrower the equitable right of redemption if the borrower repays the debt. While this equitable right exists, it is a cloud on title and the lender cannot be sure that it can successfully repossess the property. Therefore, through the process of foreclosure, the lender seeks to foreclose the equitable right of redemption and take both legal and equitable title to the property in fee simple. Other lien holders can also foreclose the owner's right of redemption for other debts, such as for overdue taxes, unpaid contractors' bills or overdue homeowners' association dues or assessments.

The foreclosure process as applied to residential mortgage loans is a bank or other secured creditor selling or repossessing a parcel of real property (immovable property) after the owner has failed to comply with an agreement between the lender and borrower called a "mortgage" or "deed of trust". Commonly, the violation of the mortgage is a default in payment of a promissory note, secured by a lien on the property. When the process is complete, the lender can sell the property and keep the proceeds to pay off its mortgage and any legal costs, and it is typically said that "the lender has foreclosed its mortgage or lien". If the promissory note was made with a recourse clause then if the sale does not bring enough to pay the existing balance of principal and fees the mortgagee can file a claim for a deficiency judgment.

Foreclosure defense is term used to describe a set of legal tactics and strategies used by consumer lawyers and advocates to fight and defend lender foreclosure actions. This emerging legal practice gained momentum, acceptance and notoriety with the subprime mortgage meltdown crisis of 2007–2009 as foreclosures in America soared to new heights.

Foreclosure defense involves a proactive fight against both judicial and non-judicial foreclosures of property wherein borrowers and their attorneys deny the legal claims or authority of the lender to foreclose. Common strategies include produce the note; prudential and legal standing to foreclose; Truth in Lending Act (TILA) violations; TILA rescission; predatory lending and predatory servicing; fraud; breaks in chain of title; and other tactics.

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