This particular hub will discusss the defenses of waiver estoppel and oral modification of the term of the mortgage note. A lender by their statements and actions may waive any default after a notice of acceleration has been given for the failure of the home owner to pay. Any conduct including both statements and actions which induces reliance on the part of the homeowner cold be regarded as a modification of the mortgage terms. An example would be that you receive a notice of acceleration as I set forth in my prior hub you have thirty (30) days to work it out. If you send a partial payment and it is accepted a modification occurs both things have to happen you must send the payment a promise to pay will likely not be enough and the lender has to accept which means you have to send enough so that it is worth the lenders while to accept.

The lenders actions in accepting the partial payment results in a waiver of their right to accelerate. The point here is that once you receive the acceleration letter you can at least make an attempt at partial payment send the cashirers check by certified mail along with a hardship letter or if you have already sent a hardship letter send an updated one. If the lender accepts it and continues with the foreclosure you have a waiver defense if they do not accept the payment and continue with the foreclosure you can raise the defense of good faith and fair dealing. One quick note regarding estoppel.  Estoppel is a defense that arises from misleading conduct by the lender if for instance the lender representatives makes a promise to suspend the foreclosure process document who said this the date time and place and their title also it would be worthwhile to send a letter to the lender requesting a forbearance or suspension of the foreclosure action for a reasonable period of time such as ninety (90) days just to put the ball in their court.

Since we are discussing oral non written modifications the lender if the matter becomes contested litigation will claim that such modification must be in writing and signed by both parties. They may raise the Statue of Frausds please note that in the situation we are discussing full performance by the homeowner in tendering the partial payment which was accepted by the lender takes the agreement out of the statute of frauds. I can only speak to Florida but a number of states have statutes that require credit agreements including modifications to be in writing and signed by both parties. In Floridas (Fla. Sta. 687.0304(2)) the debtor homeowner may not maintain an action, in other words sue the lender, without the signed writing. However,  it does not bar one from raising the oral modification as a defense iif the lender sues to foreclose.