What is an Affirmative Defense and Can it Help in a Foreclosure?

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In the context of a foreclosure, an affirmative defense is a defense raised by the homeowner in response to the lender's claim that the homeowner has defaulted on their mortgage and that the lender is entitled to foreclose on the property. An affirmative defense is a specific type of defense in which the homeowner admits that they defaulted on the mortgage, but asserts that there are additional facts or circumstances that excuse or justify their default.

What are some examples of affirmative defenses?

In Illinois, some common affirmative defenses in foreclosure cases include:

  1. Lack of standing - lenders must prove that they are legally entitled to pursue the underlying foreclosure, which is called standing. A lender's errors, improper/incomplete documentation, or fraud can make it difficult to establish standing
  2. Failure of a condition precedent -- for example, if the lender fails to serve the homeowner with a notice of default or intent to accelerate, then the lender may have to start the foreclosure process from the beginning
  3. Fraud, misrepresentation, or other misconduct on the part of the lender or mortgage servicer
  4. Duress or coercion, such as when the homeowner is forced to sign the mortgage under threat of violence or other harm
  5. Mistake, such as when the homeowner was not provided with all of the required disclosures or was misled about the terms of the mortgage
  6. Breach of contract, such as when the lender fails to fulfill their obligations under the mortgage agreement.

It's important to note that these are just a few examples of affirmative defenses that may be available in Cook County. The specific defenses that are available in a particular case will depend on the facts and circumstances of that case.

What steps should a homeowner take to assert an affirmative defense?

In general, an affirmative defense must be raised in the response to the lender's complaint. This is typically done by filing an answer to the complaint, in which the homeowner admits or denies the allegations made by the lender, and sets forth any defenses they wish to raise. The deadline for filing an answer to the complaint will depend on the specific rules, procedures of the court, and timeline of the underlying foreclosure case. It's important to meet this deadline, as failing to do so may result in the court entering a default judgment against the borrower, which could allow the lender to proceed with the foreclosure without further opposition from the homeowner .

If you would like to learn more about affirmative defenses in a foreclosure, an experienced attorney can help you navigate the process. At The Law Center, we are a team of specialists that are passionate about the foreclosure process from start to finish and helping homeowners at the highest level. Our staff and attorneys approach each client and each property as a new challenge, one that requires thorough analysis, zealous representation, and thoughtful strategy. It’s your home, let The Law Center help you defend it.

Call us now and speak with a foreclosure expert on how you can make the foreclosure process work for you -- not against you. (312) 600-8815

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Disclaimer – The Law Center, LLC is not a debt collector and is not affiliated with your mortgage lender, service or any government entity. The attorney responsible for the content of this advertisement is IL Attorney B. Fard. Nothing on this website is to be construed as a guarantee or prediction of result. No recipient of content from this site, client, whether current or otherwise, should act or refrain from acting based on information at this site. Any and all information on this website is not intended to, nor does it, constitute or establish an attorney-client relationship.