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

Categorized | STOP FORECLOSURE FRAUD

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

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

COMING TO YOU LIVE DIRECTLY FROM THE DUBIN LAW OFFICES AT HARBOR COURT, DOWNTOWN HONOLULU, HAWAII

LISTEN TO KHVH-AM (830 ON THE AM RADIO DIAL)

ALSO AVAILABLE ON KHVH-AM ON THE iHEART APP ON THE INTERNET

.

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

.

 ———————

 

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.

Host: Gary Dubin Co-Host: John Waihee

.

CALL IN AT (808) 521-8383

Have your questions answered on the air.

Submit questions to info@foreclosurehour.com

The Foreclosure Hour is a public service of the Dubin Law Offices

Past Broadcasts

EVERY SUNDAY
3:00 PM HAWAII 
6:00 PM PACIFIC
9:00 PM EASTERN
ON KHVH-AM
(830 ON THE DIAL)
AND ON
iHEART RADIO

The Foreclosure Hour 12

image: Video Hive

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Comments

comments

This post was written by:

- who has written 9281 posts on FORECLOSURE FRAUD | by DinSFLA.

CONTROL FRAUD | ‘If you don’t look; you don’t find, Wherever you look; you will find’ -William Black

Contact the author

Leave a Reply

GARY DUBIN LAW OFFICES FORECLOSURE DEFENSE HAWAII and CALIFORNIA
Advertise your business on StopForeclosureFraud.com

Archives