Affidavit: A voluntary sworn declaration of written facts.
An affidavit, a written sworn statement of fact voluntarily made under an oath or affirmation administered by a person authorized to do so by law, is often used to present evidence during a foreclosure proceeding. The affidavit is witnessed as to the authenticity of the affiant’s signature by an oath taker, such as a notary public or commissioner of oaths.
Example: An affidavit of indebtedness is a sworn document filed by the bank that specifies to the court how much the homeowner owes the bank.
Affidavit: Sworn to Tell the Truth
The foreclosure process often requires affidavits, sworn documents that confirm facts, in order for the bank to confirm that the foreclosure is valid and that they have a right to foreclose because the homeowner has defaulted on the mortgage.
Banks often seek a summary judgment, meaning a court decision that doesn’t necessitate a trial. An affidavit is meant to confirm facts entered into evidence to justify the foreclosure. Foreclosure affidavits include statements about the mortgage status, payment history, outstanding balance and period of delinquency.
If the homeowner does not oppose the foreclosure, the court will rule in the bank’s favor, allowing for execution of the foreclosure and sale of the property.
In a recent foreclosure case, a bank provided an affidavit stating that if called the they could speak knowledgeably about the specifics of the loan. The affidavit included, as exhibits, the original loan and other financial documents related to the mortgage agreement.
In this case, the court ruled that those age 65 or older, as well as those who are disabled and are disabled veterans, may postpone paying delinquent and current property taxes on their homes by taking advantage of a “tax deferral” and signing an affidavit at the County Appraisal District office.
“If the affidavit is on file, an over-65 homeowner, one who is disabled or is a disabled veteran, cannot lose a homestead because of delinquent taxes,” said the chief appraiser of the district.
“To stop a delinquent tax suit,” he added, “the homeowner files the deferral affidavit with the court in which the suit is pending.”
In this case, the affidavit provided written and sworn testimony that the homeowner was in fact deferring payment due to their age or status.
The chief appraiser emphasized, though, that the tax deferral only delays paying taxes on the home; it does not cancel them. During the deferral period, taxes and interest of five percent per year continue to accrue although no additional penalties are added.
“When the qualified homeowner or surviving spouse no longer owns and lives in the home, all the deferred taxes and interest, as well as any penalties imposed before the deferral was filed, become due,” the chief appraiser said. “If the taxes are not paid, taxing units can then sue to collect the amount due. Additional penalties may be added if the taxes remain delinquent after the deferral ends.”