Foreclosure defenses focus more on technical non-compliance by the lender, but can also focus on a potential solutions.
Foreclosure defenses do not usually deny the defendant’s obligations, but focus on the technical compliance of the lender with the many statutory and regulatory requirements as to mortgage lending, recording, servicing administering, modifying, and notice. The foreclosure itself has many requirements imposed on the lender, many being recent additions to the many requirements already in place. As a result the foreclosure defendant in their answer or in their order to show cause has many potential defense that focus on:
Problems at the closing – lack of disclosure, violations of TILA and RESPA, unwarranted closing fees and charges, recision.
Problems with the loan – predatory lending, fraud, unconscionable, residential loan disguised as a commercial loan, usury, the lender was not properly licensed in NYS, problematic reverse mortgage
Problems with Pre-Foreclosure Notices – default notice issues, 90 Day Notice issues
Problems with Service and Jurisdiction – Allegation that service was defective and there the lenders don’t have jurisdiction.
Problems with Standing – failure to produce the note, probable lack of original documents based on blurry copies of loan documents attached to complaint, defective notice and recording of assignments, defective MERS assignment, “Late assignment”, assignment on the eve foreclosure, multiple roles of persons involved with assignment, sham assignment.
Problems with Modification Process – failure to negotiate in good faith, failure to seek resolution, failure to consider the defendant, lack of good faith in negotiating modification, trial modification given but arbitrarily denied permanent modification, lender improperly kept temporary modification funds.
Problems in Litigation – Failure to assert a cause of action, defective service of process, failure to include necessary defendants, failure to include parties in the caption, unnecessary disruption of relationship with tenant, commencement of foreclosure during modification negotiations, failure to document the defendant’s default, failure to file specialized RJI, failure to send via certified mail 90 day notice, reliance on 90 day notice rendered stale by payment, failure to schedule foreclosure conferences, failure to file due diligence affidavit, stale notice of pendency, a break in the notice of pendency, the passing of a defendant, and violation of fair debt collection act.
Counter-Claims – Misrepresentation and/or breach of contract as to false representations of modification, taking of payments under temporary modification under false pretenses, harm to tenant relationship, attorney fees and costs due to violations of various statutes including Respa, Tila etc.
Based on some of the above defense many defendants are able to assert their rights and gain time and leverage in the foreclosure litigation.
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The attorneys of the Law Office of Ronald Weiss, P.C. have been engaged in Long Island foreclosure defense on behalf of LI homeowners for over 25 years. We represent the residents of Nassau and and Suffolk Counties, Long Island in foreclosure solutions with the goal of saving our clients’ homes.
Please call us at (631) 271-3737, or e-mail us at email@example.com for a free consultation with an attorney, at our Melville, Long Island law office to discuss Foreclosure Defense options in greater detail.