Why we like it: Failure to properly serve a Help for Homeowners in Foreclosure Notice in the required form with all attachments as a condition precedent to foreclosure is a complete defense to a foreclosure action. When it applies: Proper service of a Help for Homeowners in Foreclosure Notice along with the summons and foreclosure complaint is a condition precedent to foreclosure. The strict standards that apply to the personal service of the summons and foreclosure complaint upon the homeowner also apply to the service of. Why we like it: All of the advantages of the defense of failure to serve a Notice of Default as a condition precedent to foreclosure apply equally to the defense of failure to serve two copies of a 90-Day Pre-Foreclosure Notice. When it applies: Service of two copies of a 90-day Pre-Foreclosure Notice by regular and certified mail is required when (1) the home is owner-occupied, and/or (2) the mortgage loan is a high cost, subprime or nontraditional home loan. At that time, the homeowner may file a quiet title action to have the mortgage discharged (eliminated). If the homeowner wins the quiet title case, the home may be sold without paying the former mortgage debt.
The motion to dismiss could be made years after the case is started. As with the HAMP defense, if the bank fails to serve the Help for Homeowners in Foreclosure Notice according to the strict requirements that apply to service of a summons and complaint, the foreclosure action must be.
The defense of failure to comply with HAMP requirements applies when a single family home is owner-occupied and the homeowner(s) applied for a HAMP modification but the bank filed a foreclosure action anyway.
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