If you fall behind on your mortgage payments, your house might end up in foreclosure. However, there can be good defenses to a foreclosure lawsuit.
Lack of Legal Standing
For a bank to bring a foreclosure lawsuit, it must have “legal standing.” The bank must show it has the authority to enforce the terms of the mortgage, typically by demonstrating ownership rights to the property by way of MERS (Mortgage Electronic Registration Systems) records. But mortgage documentation in MERS is sometimes very poor. Where a mortgage has been transferred, the bank must be able to track its assignment of ownership back to the original financial institution that granted the mortgage. If the bank has failed to obtain the appropriate assignment of the mortgage from a prior bank, the suit can be dismissed. Appropriate affidavits must be signed and filed in the county clerk’s office to document each assignment. If the bank fails to properly deal with this issue, it does not have standing to bring the foreclosure lawsuit.
No Original Note
In order to bring a foreclosure lawsuit, a bank must demonstrate, in its pleadings, that it possesses the original note. A photocopy of the note is not good enough.
In many cases, mortgages are assigned to large trusts. These trusts are the result of securitization of the mortgages. However, the trust life span does not always coincide with the timeline of the mortgages assigned to it. An example of this would be a mortgage assigned to a trust prior to the trust coming into existence. Since the trust didn’t exist at the time the mortgage was assigned to it, the assignment is invalid. The bank has no right to foreclose in such a case.
Failure to Provide Attorney Affirmation
Banks must submit not only documentary evidence of their ownership of the mortgage and non-payment by the homeowner, but their attorney also must submit an affirmation attesting to the truthfulness of the foreclosure documents submitted by the bank. If the bank fails to provide an attorney affirmation of this type, the foreclosure action can be dismissed.
Failure to Send 90-Day Notice
Banks must provide homeowners with written notice 90 days before bringing a foreclosure lawsuit. This notice advises the homeowners that their home is going into foreclosure. If the bank has failed to provide this notice, the court may dismiss the suit.
Elliot Schlissel is an attorney licensed to practice in the State of New York. His law firm, with offices in Nassau County, Suffolk County and Queens County, practices in family law & divorce, criminal law, personal injury matters, bankruptcy, and foreclosure defense.