Defense to Foreclosure Lawsuit: Statute of Limitations

foreclosure defense for homeownersThere is a statute of limitations in every state of the United States with regard to bringing a foreclosure lawsuit. If the financial institution which holds your mortgage does not initiate the foreclosure lawsuit within the statute of limitations period, a defense can be raised in your answer to the summons and complaint that the lawsuit is barred by the statute of limitations. The statute of limitations in the State of New York to bring a foreclosure lawsuit is six years.

Calculating Time Periods for the Statute of Limitations

The usual start of the running of the six year time period under the statute of limitations, in the State of New York, is from the time the homeowner made their last mortgage payment. For example, if the homeowner’s last mortgage payment was made January 1, 2010, the statute of limitations defense could be utilized by the homeowner if the foreclosure lawsuit was not initiated on or before January 1, 2016.

Statute of Limitations: An Affirmative Defense

Affirmative defenses are specific defenses to lawsuits which need to be plead in the pleadings of a responding party. In a foreclosure lawsuit, the homeowner must plead the statute of limitations and other affirmative defenses in their written answer which is submitted to the court and to opposing counsel. Failure to plead a statute of limitations defense or other affirmative defense in an answer acts as a waiver of that defense. Over the years I have had prospective clients who have come into my office and said to me things such as, the foreclosure lawsuit was illegal because it was initiated more than six years from the time they stopped making their mortgage payments. This is not true. As indicated earlier in this paragraph, the statue of limitations defense must be plead as an affirmative defense in an answer to the summons and complaint or else it is waived. Unfortunately in some of the situations clients have brought this up to me in, they had waived their right to submit the affirmative defense of statute of limitations.

Once the financial institution starts the lawsuit, the issue of the statute of limitations as a defense is no longer applicable. So if the foreclosure lawsuit is started four years after the date of default and it goes on for five years, there is no statute of limitations defense available. Once the lawsuit is started, it does not make any difference however long it takes to be finalized or resolved. The statute of limitations only applies to the first six year period.

Conclusion

If you think you have a statute of limitations defense, it is strongly suggested you contact an experienced foreclosure defense lawyer and discuss this issue with him or her and the best way to present it in your pleadings.helping homeowners stay in their homes

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