When you are faced with a foreclosure, do not ignore it.
The biggest mistake people make when they get behind on their mortgage is to ignore it. Do not do that. Be proactive. Loan modifications are available, especially if you have counsel.
If the bank does commence a foreclosure action, do not default. If you think that you will defeat the foreclosure because you believe you were not properly served with the summons and complaint, do not count on it. Foreclosure actions are replete with affidavits from process servers claiming to have properly served defendants, when in fact, the papers were never served. It is very difficult to prove “sewer service.” And even if you can show that you were not properly served, in order to vacate your default you will often need to demonstrate that you have a meritorious defense to the foreclosure, which is usually very difficult to do.
You will be in a much better position to avoid a foreclosure if you do not default.
There are many ways to defeat a foreclosure action.
- Bank failed to comply with strict notice requirements. Lenders are required to strictly comply with various notice requirements before instituting a foreclosure action. Failure to do so requires the dismissal of the action.
- Failure to have proper documentation of ownership of the note. The notes that are secured by the mortgages are routinely transferred to many different lenders. In order to commence a foreclosure action, the lender must prove a proper chain of title of the note. In many cases, the lender will not be able to do so, or will not have properly documented the chain of title, requiring that the action be dismissed. However, if you are in default, you have likely waived this defense.
- Unfair lending practices and unconscionable mortgage/note terms can be used to avoid a foreclosure action. If the terms of your loan are so unfair that they “shock the conscience” or the lender participated in unfair lending practices, you have a valid defense to your foreclosure action.
- Statute of Limitations have often expired. Once the lender commences a foreclosure action, the statute of limitations commences. If a foreclosure action is dismissed because the lender did not have standing to bring the action or the defendant was not properly served, it is possible that by the time the lender files a new foreclosure action, the statute of limitations has run, and you will get your house free and clear.
Do not let any avenue of defense go unexplored. Hire knowledgeable legal counsel to assist you in this process.
I have handled many homeowners in foreclosure actions, allowing them to stay in the home for a very long time while the action proceeded through the legal system, or even getting the note and mortgage dismissed completely.
Gail M. Blasie, P.C. assists Individuals and Attorneys with Appeals, Legal Research and Writing, Foreclosure Defense, Article 78 Proceedings, and Civil Litigation in New York City, Brooklyn, Queens and throughout Nassau County and Suffolk County.