TFH 6/23 | The 68 Mostly Under Used Affirmative Defenses That Can Save Your Home From Foreclosure And You And Your Family From Eviction

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Sunday – June 23, 2019

The 68 Mostly Under Used Affirmative Defenses That Can Save Your Home From Foreclosure And You And Your Family From Eviction

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  The importance of defensive pleadings is often overlooked by homeowners in foreclosure and by foreclosure defense attorneys. In court, Pleadings consist of Plaintiff’s Complaint, the Defendant’s Answer including Affirmative Defenses, any Defendant’s Counterclaims and Defendant’s Cross-Claims against other Defendants and any Defendant’s Third-Party Complaints, and opposing Answers and Replies. Today we concentrate on the many Affirmative Defenses that can be included in Defendant’s Answer that in individual foreclosure cases may be available to homeowners sued for foreclosure. Affirmative Defenses are those sets of facts not contained in the Complaint that if proven will either diminish or completely block the foreclosure relief requested by the Plaintiff in the Complaint. The pleading rules in different jurisdictions importantly differ, especially in federal courts which have abandoned “notice pleading” in favor of more detail demanding “plausibility pleading” requirements. Determine which pleading rules apply to your case. However, in most but not all federal district courts, Affirmative Defenses are still governed by notice pleading standards, which means that in most state courts and in most federal district courts a homeowner need only to list by name without elaborating on his or her Affirmative Defenses. All Affirmative Defenses relied upon by homeowner Defendants will need to be proven however in court during the duration of a foreclosure case, and generally Defendants have the burden of proof regarding Affirmative Defenses, which moreover if not plead in the Answer are generally considered waived. Also, courts have the discretion generally to consider Affirmative Defenses as Counterclaims and Counterclaims as Affirmative Defenses despite how they may be formally labeled, and the burden of proof regarding some Affirmative Defenses is placed on the Plaintiff and not on the Defendant by statute or by caselaw, depending on the jurisdiction. For all of the above reasons, it is important for homeowners sued for foreclosure or for eviction following a nonjudicial foreclosure to prepare their defense well in advance and to be as specific and as complete in their defensive pleadings. That means that a foreclosure Defendant must carefully determine based on his or her facts which Affirmative Defenses fit his or her facts and can be proven perhaps with the aid of discovery before listing them in his or her Answer. Several of the Affirmative Defenses overlap in their defensive scope, the better procedure being in such situations to list all that apply notwithstanding potential duplication. Third-Party Complaints and how they might improve chances of defeating foreclosures will be the topic of a future Foreclosure Hour. Listed before are at least 68 Affirmative Defenses available in most jurisdictions in defense against foreclosure, discussed, time permitting, on this Sunday’s radio broadcast. 1. Statute of limitations 2. Standing 3. Breach of contract 4. Promissory estoppel 5. Adhesion 6. Mutual mistake 7. Unilateral mistake 8. Breach of covenant of good faith and fair dealing 9. Unfair and deceptive acts and practices 10. Unconscionability 11. Illegality 12. In pari delecto 13. Breach of fiduciary duty 14. Unclean hands 15. Equitable estoppel 16. Coercion 17. Duress 18. Usury 19. Fraud 20. Fraud in the factum 21. Intentional misrepresentation 22. Negligent misrepresentation 23. Fraudulent concealment 24. Anticipatory breach and repudiation 25. Securities fraud 26. Unjust enrichment 27. Recoupment 28. Offset 29. Setoff 30. Failure of consideration 31. Force majeure 32. Merger doctrine 33. Restraint of trade 34. Improper venue 35. Lack of subject matter jurisdiction 36. Lack of personal jurisdiction 37. Parole evidence rule 38. Payment 39. Insufficiency of service of process 40. Release 41. Novation 42. Res judicata 43. Collateral estoppel 44. Undue influence 45. Discharge in bankruptcy 46. Lack of capacity 47. Lack of exhaustion of administrative remedies 48. Splitting of causes of action 49. Lack of consideration 50. Accord and satisfaction 51. Failure to mitigate damages 52. Lack of necessary parties 53. Lack of indispensable parties 54. Absence of contractual conditions precedent 55. Statute of frauds 56. Laches 57. Impossibility of performance 58. Waiver 59. Marital status discrimination 60. Truth in Lending Act (TILA) violations 61. Home Ownership and Equity Protection Act (HOEPA) violations 62. Racketeering Influenced and Corrupt Organizations Act (RICO) violations 63. Fair Debt Collection Practices Act (FDCPA) violations 64. Real Estate Settlement Procedures Act ( RESPA) violations 65. Home Equity Conversion Mortgage (HECM) violations 66. Attorney abandonment 67. Failure to state a claim upon which relief can be granted 68. All other affirmative defenses listed in all other pleadings in the case Please join John and me this Sunday to learn, time permitting, about these largely overlooked foreclosure affirmative defenses, each of which can be further researched by our listeners by surfing the Internet. The list of 68 Affirmative Defenses will be posted on our website www.foreclosurehour.com with the audio recording of this Sunday’s show shortly after this Sunday’s radio broadcast, heard live in Honolulu on KHVH-AM News Radio at 3:00 p.m., and heard live on the iHeart Radio App on the Internet at 6:00 p.m. Pacific Time and 9:00 p.m. Eastern Time (the audio of the live broadcast repeats on the IHeart Radio App immediately following the live broadcast). Gary --------------------- GARY VICTOR DUBIN Dubin Law Offices Suite 3100, Harbor Court 55 Merchant Street Honolulu, Hawaii 96813 Office: (808) 537-2300 Cellular: (808) 392-9191 Facsimile: (808) 523-7733 Email: gdubin@dubinlaw.net.

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