Contractual Foreclosure Defense

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Common Florida Foreclosure Defenses

Contractual Defenses

Lack of Consideration - Lack or want of consideration requires a total absence of consideration, and results in a void contract. Lack or want of consideration is a defense to a contract, and as such is a defense to a Florida foreclosure suit.

Lack of Notice - The mortgage's failure to provide notice of default or acceleration where required by the loan documents results in a contractual defense.

Defective Acceleration - Defective acceleration is a defense to a mortgage where (a) the mortgage waived the right to accelerate; (b) the mortgage is estoppel to assert it; (c) the mortgage failed to perform some duty upon which the exercise of his right to accelerate was condition; (d) the mortgagor tendered payment of the defaulted items; (e) there was intent to make timely payments, but the payment was not made due to a misunderstanding or excusable neglect, coupled with some conduct of the mortgagee that contributed to the failure to pay.

Promise to Renew the Loan - The mortgagor's default may be excused where the mortgagee has contractually promised to renew the loan terms. Therefore, the mortgagor may assert the defense of the mortgagee's promise to have the mortgage terms renewed, as if the default never happen.

Accord and Satisfaction - Accord and satisfaction is a valid defense in the state of Florida and discharges a claim where the defendant proves (a) the person tendered an instrument in good faith to the claimant as full satisfaction of the claim; (b) the claim was un liquidated or subject to a bona fide dispute, (c) the claimant obtained payment of the effect that the instrument was tendered in full satisfaction of the claim.

Reinstatement or Tender - Tender and acceptance of the amount currently due and owning results in reinstatement of the mortgage and, as such, is a defense to the Florida foreclosure.

Interest Rate Issue - Promise to lend at the lowest rate charged by the lender breached, when bank gave others lower rates. Also, banks may make improper adjustments to the interest rate on an adjustable rate loan.

General Contractual Defense - A mortgagor is entitled to assert general defenses that any contracting party is entitled to raise.

Other Common Florida Foreclosure Defenses
Statutory Defense >

Equitable Defenses >

Lender Liability Defense >