Foreclosure Defense
Suffolk County Foreclosure Defense Lawyer
By J. Douglas Barics
The best foreclosure defense lawyers will use a combination of knowledge about foreclosures and experience in procedural law to allow valid defenses to be heard by the court. When valid defenses are lost or waived due to procedural errors, the effects can be devastating.
Making sure that all valid defenses are properly made and preserved comes with having experience foreclosure counsel. At the Law Office of J. Douglas Barics, let our experience work for you.
Do you need representation in a Foreclosure Action on Long Island or New York City?
Contact us online or at (631) 864-2600.
Defense of Foreclosures in New York
What you need to know about defending a foreclosure action
What is a Foreclosure Defense?
Defenses to foreclosures fall into two broad categories. The first is to challenge something the lender is required to establish to prevail. They range from technical arguments to significant failures on their duty as a creditor. The second type of defense is to raise an affirmative defense which must be proven by the homeowner. If an affirmative defense is established, the foreclosure will be dismissed even if the lender established all elements of a foreclosure.
What is an Affirmative Defense to a Foreclosure?
An affirmative defense is a way to defend against a foreclosure which must be raised in the homeowner's answer. If it is not raised, it is deemed to be waived. There is an exception for the affirmative defense of standing, but best practices
Affirmative defenses are fact specific and merely listing them is insufficient to prevail.
Affirmative defenses include the following. The effect of each affirmative defense can be minor to resulting in the entire mortgage being discharged, depending on the facts and what can be proven.
- Lack of Service.
- Failure to abide by the terms of the note.
- Failure to comply with the RPAPL §1304 90 day notice.
- Lack of Capacity.
- Lack of Standing.
- Statute of Limitations.
- Active Military.
- Res Judicata
- Collateral Estoppel
- Unclean Hands
What is the Affirmative Defense of Lack of Service?
The affirmative defense of lack of service asserts the summons and complaint was improperly served. It can be alleged as a technical defense within twenty days after it is alleged to be served. More often it is raised much later to vacate a default against the homeowner. The specifics will depend on the manner of service stated in the affidavit of service.
What is the Affirmative Defense of Failing to Abide by the Terms of the Note?
Failing to abide by the terms of the note is when the lender charges interest at a greater rate than provided for in the note, or asserting charges that cannot be substantiated by the loan. This defense is fact specific, but if shown, could result in the court finding the entire foreclosure should not have been filed.
What is the Affirmative Defense of Failing to Comply with RAPAL §1340?
The affirmative defense of failure to comply with RPAPL §1304 is asserting the 90 day notice was defective in some way.
What is the Affirmative Defense of Lack of Capacity?
Is an Attorney Required to Defend a Foreclosure?
An experienced foreclosure lawyer will make sure that all your defenses are properly preserved and submitted. But if you are representing yourself, the forms for a foreclosure action are available free of charge through the New York State Unified Court System.
Contact Our Foreclosure Lawyer Today
At the Law Office of J. Douglas Barics, we have the skills and knowledge to handle any foreclosure, no matter how challenging or complex. With over 25 years of experience, we can bring to you the services of a large firm at a fraction of the cost. When you need a skilled foreclosure attorney located in Suffolk County, call The Law Office of J. Douglas Barics.
For a free phone case consultation or to schedule an office meeting, call 631-864-2600.