The process of foreclosure is extremely stressful as anyone who has been through it would tell you. Dealing with a mortgage company can be difficult at the best of times. A lot of people wonder if they are entitled to legal relief if they prevail or even if they do not prevail against a mortgage lender.
Key Takeaways
Emotional Distress
There are two types of claims for emotional distress. Intentional infliction of emotional distress and unintentional infliction of emotional distress. The emotional distress claims are extremely difficult to prove and would require that you pay out of your own pocket to pursue the claim; this is not a contingent fee sort of arrangement like in personal injury law. Unintentional infliction of emotional distress would not be considered here because the acts of the mortgage company are intentional, so we will focus on intentional infliction of emotional distress.
The intentional infliction of emotional distress speaks for itself. A party intentionally or recklessly engages in outrageous acts that actually cause emotional distress in the other party. It is not enough to be stressed out or lose sleep. The wrongful party has to create a situation where the victim party is experiencing dramatic symptoms that require medical treatment. Furthermore, the wronged party would need documentation from a healthcare provider stating that the acts of the wrongful party directly caused the symptoms in the victim party. A creditor taking a debtor to court is not considered an outrageous act. The process of foreclosure is a legal act in a court of law, and it is not outrageous or reckless. The mortgage lender is not harassing the debtor by trying to collect, and they are not engaging in reckless activity that is expected to cause extreme emotional distress in a person.
It is highly unlikely that you could sue your lender for intentional infliction of emotional distress and emerge the winner.
Unintentional infliction of emotional distress is when a party, through negligence, inflicts emotional distress onto another person. There is simply no action that a lender could take against a debtor that could be categorized as a winning claim for unintentional emotional distress.
The Burden of Proof
Let’s say you want to try and sue the mortgage company for intentional or unintentional infliction of emotional distress. You have the burden of proof and would have to show that the company’s actions or negligence resulted in actual symptoms. It cannot just be that you are stressed out. You would have to be evaluated by a mental health care provider, and they would have to be willing to testify that the actions of the mortgage company directly resulted in your severe symptoms. In this type of case, it is likely that the opposing side will also have their own experts examine you and testify as to why you have no claims for emotional distress.
The Better Alternative
If you are having some sort of dispute with your lender that is causing you emotional distress, you should consult with an experienced foreclosure and/or real estate attorney. Some mortgage lenders do not keep accurate records or do not communicate with their borrowers in the way that the mortgage agreement dictates that they should, leaving the lender open for a legal claim or claims against them. It may even be that their loan terms are not legal, and the agreement is unenforceable. A good attorney will be able to examine all the facts and present you with real options depending on your situation.
If you are fighting foreclosure, your state should offer at least some options for you to keep your home or at least not go too far into the black financially, but you will need an attorney to assist you with this.
The bottom line here is that you can sue for emotional distress, but it is highly unlikely to be a successful claim, and you could set yourself up for paying the other side’s legal fees when you lose on the claim for emotional distress. Although it is indisputable that dealing with a mortgage lender is incredibly frustrating and stressful, it is highly unlikely that it would rise to the level required for an emotional distress claim.
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