(This information is for informational purposes only and not legal advice).
In New York, homeowners have protection to stop foreclosure. Under RPAPL §1304, a mortgage loan servicer is required to provide a 90-Day Notice prior to filing a foreclosure lawsuit.
This could give the homeowner more time to work out a better solution than foreclosure with the mortgage lender. Homeowners must be able to spot errors when it comes to foreclosures.
This 90-day notice is very important to a foreclosure matter, it gives the homeowner a chance to see if you can work with the mortgage holder to avoid foreclosure.
Among several strict requirements, the notice must also provide a list of at least five non-profit foreclosure avoidance counseling groups currently operating in the homeowner’s area who can help.
To stop foreclosure raising issues on 90-day notice violations offers strong protection; by also making sure that the mortgage lender properly mailed a 90-day notice before the foreclosure action was commenced.
The 90-day notice must also be sent by both regular and certified mail. Where often foreclosure filings commenced in New York, are missing documentation proving the mortgage loan servicer establish strict compliance to commence foreclosure actions.
Any 90-day notice violation can also be raised at any time and at any point during the foreclosure lawsuit.
The 90-Day Notice defense against foreclosure was successfully raised to the second department in Citimortgage v. Espinal, 134 A.D.3d (2d Dept. 2015) and Bank of NY Mellon v. Weber, 169 A.D.3d 981 (2d Dept. 2019). Where it was established that it can be raised at any time and at any point during the litigation.
The second department also established only the borrower who signed the mortgage loan documents can raise this defense, any party who is a stranger to the express Note and mortgage can not, even if the party has an interest in the subject property they still may not. Represented in Bank of NY Mellon Trust Co., N.A. v. Obadia, 2019 NY Slip Op 07561 (2d Dept. 2019).
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