Preparing Your Motion to Vacate Foreclosure

If you are a current homeowner, one of the options open to you is a motion to vacate foreclosure. A motion to vacate is not a foreclosure. Instead, it is an order that "withdraws" the foreclosure process from you. This can only be done in the county in which you live. In most counties, the process for this is indicated by the letter "C.”

The Eleventh U.S. Circuit of Appeals in Atlanta has recognized a set of rules for determining when a property is in default. These rules, referred to as the "Federal Rules of Procedure,” have been codified in the Manual of Uniform Construction Regulations (UMCR). Among these rules is the "Motion to Vacate,” which is also commonly referred to as the "VAC Rule.” In most cases, if there has been a default and the homeowner has been given a cure or redemption period, this is the date that the lender will file the motion to vacate. In addition to the Eleventh Circuit, several other lower Federal courts have applied the Federal Rules of Procedure principles. They have ruled on various matters relating to foreclosure and the vacating of judgments.

One of the underlying reasons that courts have the discretion to vacate a foreclosure proceeding is that the homeowner may have already cured the default. In cases involving a federal question, this is referred to as the "res judicata" rule. When a debtor files a motion to vacate, they request that the court enter a temporary restraining order or quick ruling allowing them to resume the foreclosure. The court must vacate the judgment on the basis that it is based on the plaintiff's failure to cure the default.

Some homeowners believe that they have the option of merely crossing their fingers and hoping that the default will go away. They may even choose to ignore the letter of judgment and await further instructions from the court. However, this is not always possible. If a foreclosure action has been filed against the same property in multiple property counties, the process can be much less complicated. There may be additional county hurdles to cross, and a judgment will continue to accumulate until the plaintiff moves to have the foreclosure stopped in the courtroom.

The court will only vacate a foreclosure if it can find no chance of the property being recovered. There are two basic types of defenses to foreclosure actions: a claim for a mistake of fact and a request for legal prejudice. A claim for error is a claim that the plaintiff was subject to an intentional act or in bad faith (or negligence). If the plaintiff can establish this, the court can enter a judgment in favor of the defendant and therefore clear the way for the foreclosure to proceed. A claim of legal prejudice relates to the existence of facts that justify a reasonable person's belief that a rectification of the underlying debt would result in a better financial position. This includes any bank statements or their representatives that harmed the plaintiff's chances of recovering from the mortgage loan.

Another common reason for homeowners to seek relief from a foreclosure sale is based on taxes. If there is a deficit between the sale proceeds and the balance owed on a mortgage, the property owner may be able to seek relief based on the difference. For this to work, the tax owner must request a certificate of taxes. County auditors typically issue the tax certificates, but the Internal Revenue Service also publishes them. When seeking relief from foreclosure, the tax certificates are usually needed immediately so that the homeowner can get the money due immediately.

Last, a property owner can also seek relief from foreclosure when a judgment has been entered against them in a civil court. The judgment may be for one of two different reasons. First, it may be a default judgment - in other words, the defendant fails to show up for their initial appearance, and the court enters a default judgment. Second, the decision may be an award of equity. An equity judgment is when the court orders a lender to sell the debtor's property to recoup the money that the debtor owes to a creditor. For example, if a debtor has judgments against them for breach of contract, fraud, etc., and they fail to appear at their first hearing, the debtor will lose their first lien on the property and will be assessed a deficiency.

Many homeowners will attempt to defend against a motion to vacate foreclosure with a motion to dismiss. A motion to dismiss is simply an argument that the court should not have the right to grant the plaintiff a remedy. In most cases, courts do not allow motions to dismiss. If the defendant did not act appropriately or did not have the proper venue to file the complaint, they are not allowed to argue their case in court. However, there is one exception to this rule - if the property owner can prove that there were mistakes or omissions in the process of gathering the evidence that led to the default judgment. They may be able to defeat a motion to dismiss. If the plaintiff can prove that the defendant had a piece of incomplete information or failed to act by the law, then the plaintiff may be able to get their judgment vacated or have it thrown out.

 

Motion to Set Aside Foreclosure Sale Sample

If you are a property owner who has been given the notice of default and have not agreed with your mortgage holder on payment, you have two options before you. You could choose to move toward foreclosure and set a date for the sale of your property. Or you could attempt to negotiate a new agreement for the repayment terms of your loan. With the help of a motion to set aside the foreclosure sale sample, you can show the court that you cannot meet the terms of the original contract. To find the motion to set aside a foreclosure sale sample that works in your states, contact a foreclosure attorney. 

Process of Setting Aside Foreclosure Sale

The first step in this process is to file a motion to set aside your property’s sale. In most cases, the lending institution must file this motion against the debtor, together with the attachment of all necessary documents. Once filed, the court will take the matter under consideration. If either party agrees upon the new contract’s terms, this document will be approved by the court. On the other hand, if both sides are not satisfied with the new contract, a trial date will be set. During this time, the court will consider what debts remain after the original debt is paid.

If a repayment plan is agreed upon, the property can be sold at auction. It is possible to avoid having this type of sale, however. If a borrower files a motion to set aside the foreclosure sale sample, indicating that he or she will not be able to repay the mortgage after a specified number of months, the case will be dismissed. At this point, the debtor is usually able to buy back the property at a later date. If the sale proceeds at an auction, it is the lender’s responsibility to pay off the borrower’s debts.

Some counties do not allow Hold harmless agreements, which means that homeowners who cannot pay off the mortgage after the agreed-upon amount of time will have to pay the entire balance of the loan. If this occurs, the foreclosure process will continue, and the homeowner may be evicted from the property.

How to Set Aside the Foreclosure Sale

It is quite simple for those who are not aware of how to set aside the foreclosure sale. To put a stop to the auction, one must apply with the court, stating why the auction should be canceled. The same document can also be filed with the county wherein the property in question is located and signed by the owner. In the county where the property in question is located, one must provide the title deed proving ownership of the property.

Any set-aside decision is therefore immediately nullified. In this case, a homeowner does not need to worry about his property because the foreclosure has already been canceled. To make things even better, a homeowner can still apply for modifying his loan and getting his property back.

This can be done through the intervention of the attorney who is handling the loan. It will lower the due auction sale price, but the loan servicer would then have to find another way to sell the property. In the meantime, the borrower can keep up with the payments and avoid foreclosure.

Motion to Vacate Foreclosure Attorney

This motion to vacate states that the homeowner has given notice of default to the mortgage company and that a default hearing will be held on the day of the scheduled auction. The sale date is then set for the home at the auction. The lender can then seek a court order to have the foreclosure auctioned by having a judge issue a temporary restraining order. At this point, the sale date is again postponed, and the foreclosure date moves forward.

An attorney will help to fill the motion to set aside the foreclosure sale sample. An offer to set apart is simply an agreement that outlines how money from the home sale will be held until the loan debt is repaid. In many cases, this means that the original debt will have to be repaid. The motion to set aside the sale must be filed in a county where the property is located.