New York Foreclosure Mortgage Acceleration Default Foreclosure Defenses
Posted On February 10, 2019
Not legal advice, for informational purposes only.
New York homeowners are at a tremendous disadvantage when it comes to finding a knowledgeable attorney to provide an aggressive foreclosure defense to challenge their mortgage lenders in court.
Which is why picking the right attorney for representation means the difference of “stopping foreclosure and resolving issues with the mortgage servicer to cancel foreclosure permanently” or Homeowners Losing in court!
What’s worst is that after foreclosure takes place, many times Foreclosure Eviction follows!
The majority of homeowners are not financially prepared to just up and move. Having to relocate takes planning and time and money to do so!
While the state of New York offers fairness through the judicial process for foreclosures.
However, most homeowners proceeding ProSe or with the help of an attorney still fail to raise important foreclosure defenses about when the mortgage note is being called due in order to foreclose.
Again, this is why selecting the best foreclosure attorney makes all the difference!
When homeowners don’t raise their defenses in foreclosure cases, the right to do so is gone later.
A recent poll of New York homeowners who lost their properties in foreclosure revealed that most foreclosure defense attorneys didn’t even conduct “Discovery” to determine if the mortgage lender had proper documentation to prove ownership of the property to foreclose.
In addition to determining if the mortgage lender was properly bringing the foreclosure lawsuit within the required statute of limitations.
All pertinent information that could get the “Foreclosure Dismissed” but must be raised timely at the beginning of the foreclosure lawsuit or the homeowners can’t later raise the issues as their foreclosure defenses.
A really good foreclosure defense attorney will know to do all of these things and even review if a homeowner had inadequate representation in a previous foreclosure case or adjourned foreclosure matter.
In the state of New York, all foreclosure actions must commence in Supreme Court in the specific county where the property is located.
The foreclosure action must also commence within Six Years from the “Default” being the exact month the homeowner would have missed the first mortgage payments.
A good foreclosure defense attorney knows to always check the “acceleration” date of the mortgage note to verify the exact date of the Default!
This is also why “Discovery” is vital in a New York Foreclosure.
What is Discovery and how it works?
It’s important to note that foreclosures in New York for Supreme county courts are conducted under the judicial process.
How Discovery works is that in the law of common law jurisdictions, it is a pre-trial procedure in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the other party or parties by means of discovery devices such as a request for answers to interrogatories, request for production of documents, request for admissions and depositions.
In civil matters, Discovery can also be obtained from non-parties using subpoenas.
When a discovery request is objected to, the requesting party may seek the assistance of the court by filing a motion to compel discovery.
A good foreclosure defense attorney knows to conduct Discovery, this helps to find information that the mortgage lender may be trying to hide.
In a foreclosure matter, the homeowner as the Defendant can request information through the Discovery process. This can be done as a ProSe when the homeowner is self-represented or through representation by their attorney.
Discover allows for the Defendant in foreclosure to ask the Plaintiff “who is also the mortgage lender” important questions.
A good foreclosure defense attorney knows to ask important Discovery questions such as;
Is the Plaintiff the True Creditor?
Does the Plaintiff have Real Party Interest?
Is the Plaintiff the last Holder In Due Course of the Mortgage Note?
What is the Date of the last Payment made on the Mortgage Note?
Is the acceleration date within Six Years from the Default on the Mortgage Note?
What is the acceleration date of the Mortgage Loan Default?
Is the Plaintiff bringing the foreclosure lawsuit within the required Six-Year statute of limitations?
These are the types of strategic Discovery questions a really good foreclosure defense attorney will know to ask. Which can also determine if the mortgage lender is even the true creditor with real party interest to bring the foreclosure lawsuit in the first place.
Once the “acceleration” is called due this means the mortgage lender is requesting the ENTIRE BALANCE DUE on the mortgage note loan contract.A good foreclosure defense attorney will understand rules for how to dispute violations of creditor requirements to determine the accuracy of acceleration.
Why is “acceleration” so important in a foreclosure case??
First, the last date a payment was missed identifies the “exact moment” the clock should start ticking for the lender to call “acceleration” for the mortgage note due within the six-year statute of limitations.
In New York, if the six-year statute of limitations is expired, the mortgage lender can’t proceed with foreclosure!
However, many mortgage lenders are undoing their “Acceleration! This is done in an effort for the mortgage servicer to not look untimely to foreclose.
Now, just knowing this information is not enough to stop the mortgage lender from foreclosure.
It’s the job of the homeowner representing themselves as ProSe or the foreclosure defense attorney to raise what exact statute is being violated and to explain it in detail as a foreclosure defense!!