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The Risks Of Defending Yourself In A Mortgage Foreclosure Lawsuit

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If you are facing a possible mortgage foreclosure, there are a number of legal options available to you if you want to try and keep your home. The important thing is that you seek out qualified legal advice from a reputable Brandenton mortgage foreclosure defense lawyer. What you should not do is attempt to take the law into your own hands, either by representing yourself without an attorney, or relying upon the legal equivalent of conspiracy theories in the hopes of simply wishing your foreclosure problems away.

Florida Woman Avoids Jail Time After Trying to “Cancel” Mortgage Note in the Middle of Trial

A recent decision from the Florida Second District Court of Appeals, Maas v. HSBC Bank USA, National Association, offers a cautionary tale on this point. In this case, a Hillsborough County woman (the defendant) faced a foreclosure lawsuit. She elected to represent herself in a nonjury trial. During the trial, a witness handed the defendant a copy of the original mortgage note for her inspect.

What happened next is what led to this appeal. In open court, the defendant “took out a pen and drew a line through her signature on the note.” The defendant insisted this effectively canceled her mortgage obligation to the lender under the Uniform Commercial Code (UCC).

Does the law really permit this? No. Under the UCC, a version of which exists under Florida law, the “holder” of a mortgage note is permitted to cancel the debt by “striking the out the party’s signature.” But “holder” means the mortgage lender or the party holding the debt–not the person who is literally holding the physical note at any given moment in time.

The defendant no doubt thought she had found a clever loophole. The judge was not amused. The court found her in “direct criminal contempt” and sentenced her to 5 days in jail. It was on this point that the defendant appealed to the Second District.

A divided three-judge panel of the appeals court determined that criminal contempt was too harsh a penalty. Criminal contempt requires proof–beyond a reasonable doubt–that the offender acted with intent “to hinder or obstruct the administration of justice.” Here, the majority concluded the defendant was not trying to obstruct the court; rather she acted under an honest, if completely misguided, belief that she was somehow legally canceling her debt. On that basis, the majority said the trial court failed to establish the necessary element of “intent” to support its criminal contempt finding.

The dissenting judge would have upheld the criminal contempt finding and five-day jail term. The dissent pointed out that the defendant deliberately defaced evidence in the middle of a trial–and her “mistaken and outlandish misinterpretations” of the law should not have given her a free pass.

Speak with a Sarasota Mortgage Foreclosure Defense Attorney Today

Once again, if you are faced with foreclosure proceedings, the best thing you can do to help yourself is to contact an attorney who understands the law in this area. Contact Moran, Sanchy & Associates to schedule a confidential case evaluation with a member of our team today.

Source:

scholar.google.com/scholar_case?case=16425437894091875125