The Law Office of Howard D. Weisinger, Esq., includes a concentration in the area of foreclosure defense. If a borrower falls behind on mortgage payments, the bank may file a legal action to take back the borrower’s house.
A foreclosure action is a lawsuit brought by the bank which holds the mortgage, known as the mortgagee, and is initiated by the filing of a Summons and Complaint. The Summons alerts the borrower, known as the mortgagor, that an “Answer” to the Complaint must be served on the bank’s attorneys within a specific time period [20 or 30 days depending on how service is made]. The “Answer” is the borrower’s responses to the allegations in the Complaint. Not only will the Answer address the allegations in the Complaint, but it is the opportunity to raise Affirmative Defenses to the foreclosure action. Examples of Affirmative Defenses:
- Plaintiff bank didn’t allege physical delivery of the Note and Mortgage as required by law. Only the mortgage holder may bring the action. If your mortgage has been sold and bought by many different banks, lenders, and investors, proving just who owns it can be difficult for the last holder in the chain. Appropriate documentation of who owns the mortgage must be presented, and this is often difficult for the foreclosing party to do.
- Plaintiff bank failed to comply with a condition precedent by failing to provide sufficient notice of the impending foreclosure. New York law requires the bank to give 90 days notice before initiating the foreclosure action by both regular and certified or registered mail.
- Plaintiff bank failed to notify the borrower of a default under the terms of the Note and Mortgage.
- Plaintiff has failed to comply with a condition precedent in that Plaintiff failed to file a certificate of merit as required by Civil Practice Rules.
These are only a few examples of the many foreclosure Affirmative Defenses that must be raised at the outset. Some Affirmative Defenses, such as the Plaintiff bank is not the owner of the Note and has no authority to bring the law suit must be raised in the Affirmative Defense or it is waived; that is, cannot be raised at a later time because that right has been given up. Once the borrower has filed an Answer, the bank’s attorneys will file a request for a settlement conference. This is basically a Court supervised modification process, even if the borrower has been denied a modification in the past. The Court will schedule this conference and send a letter to the borrower advising them of the conference date and required documents. If the loan is modified, the foreclosure action will be dismissed and the borrower will resume payments to the bank under the terms of the modification. If the modification is denied, the foreclosure action will proceed in Court. Usually, at some point the bank will ask the Court for “Summary Judgment” meaning there is no issue to be tried and the bank should be granted judgment so they can proceed to appoint a referee to sell the property at auction. When the bank’s attorneys file for Summary Judgment, it is then that the Affirmative Defense challenges may be made to dismiss the Complaint. This is known as a “Cross-Motion” and it asks the Court to dismiss the Complaint rather than grant Judgment to the Plaintiff bank. This is a basic overview of the steps involved in the beginning of a foreclosure. They are very basic and general. Many facts affect the progress of the case. If you need a foreclosure defense lawyer, call or email our office for your free in office consultation.