Foreclosure Defense

What You Need to Know About Defending a Foreclosure Action

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What is a foreclosure defense?

A foreclosure defense are the legal arguments against a foreclosure case. Defenses to foreclosures fall into two broad categories, the first is to challenge something the lender is required to establish to prevail and the second type 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?

The affirmative defense of lack of capacity asserts the defendant lacked the ability to enter into the loan agreement at the time it was made. This defense is designed for people who were underage or suffered from some sort of mental incapacity.

What is the affirmative defense of lack of standing?

The affirmative defense of lack of standing applies when the plaintiff lacks any interest in the outcome of the case. In a foreclosure, lack of standing usually arises when the note has been transferred and the plaintiff does not have an interest in the note. Since many notes are often transferred in bulk with poor record keeping, the question often arises if the note was transferred to the current plaintiff.

What is the affirmative defense of the statute of limitations?

The affirmative defense of the statute of limitations asserts the foreclosure was filed too late after the default. For foreclosures in NY, the statute of limitations is six years. Despite its apparent simplicity, the question often hinges around six years from when, with the answer being rather involved.

What is the affirmative defense of being in the active military?

The affirmative defense of being in the active military asserts protection under the Servicemembers Civil Relief Act which limits litigation against military personnel who are on active duty.

What is the affirmative defense of res judicata?

The affirmative defense of res judicata asserts that a judgement from a prior case between the same two parties resolved all issues between them and bars the current case from being prosecuted. If successful, res judicata deprives the court of the authority to act.

What is the affirmative defense of collateral estoppel?

The affirmative defense of collateral estoppel asserts that an issue present in this foreclosure was previously decided against the plaintiff in a different case and that the result is binding in this case.

What is the affirmative defense of unclean hands?

The affirmative defense of unclean hands asserts the plaintiff has done something so egregious that it cannot obtain relief from the court on the basis the court should not be part of assisting the plaintiff. The level of misconduct must generally rise to criminal conduct.

Is an Attorney Required to Defend a Foreclosure?

An attorney is not required in a foreclosure defense as individuals have a right to represent themselves. 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.