In New York, banks must give homeowners at least 90 days’ notice before they initiate legal foreclosure proceedings. Lack of notice is typically a jurisdictional issue. If the bank did not comply with this requirement, the action cannot move forward.
General statements about the unfair nature of the loan or the bank’s misleading statements are insufficient. Origination fraud is only a legal defense if the allegations are specific both factually and legally. At the same time, these allegations must not be over-specific. Otherwise, lawyers paint themselves into corners.
Mortgage agreements and other contracts are only legally valid if each side gives something up and also receives something. Empty words in the contract are not enough. Something of value must change hands, and this exchange must be recorded in the mortgage agreement.
This legal provision applies both to payments the homeowner makes and to the bank’s reaction to those payments. If the bank fails to bring a legal foreclosure action within the time prescribed by law, the judge may bar such activity. Additionally, if the bank does not formally reinstate the loan once the delinquency is paid, it may lose the right to pursue future foreclosure actions.
New York courts follow the best evidence rule, and the best evidence of any written document is the document itself, as opposed to an electronic or other copy. If the bank did not have the original note at the time it filed legal foreclosure paperwork, the proceeding may be invalid.
Typically, the bank that files a foreclosure lawsuit is not the same bank which originated the loan. In fact, in many cases, the loan has been assigned multiple times to different banks and loan servicers. If there is any defect at any point in the assignment process, the current mortgage holder may not have standing to file a claim in court.
Proper pleading is the foundation of a successful defense. For a free consultation with an experienced foreclosure attorney in New York, contact Roemerman Law, P.C. Convenient payment plans are available.
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