Defenses to Foreclosure Proceedings

Until fairly recently, it has been difficult to submit defenses in foreclosure proceedings.  However, new information that has recently surfaced and been made public with regard to banks and other financial institutions mishandling initial paperwork regarding the obtaining of mortgages, fraud on behalf of mortgage brokers and financial institutions, the loss of important documents regarding mortgages and the generally sloppy procedures utilized by financial institutions.  The new information has opened up a new wave of defenses to foreclosure proceedings.

Challenge the Foreclosure Proceedings

Homeowners and their attorneys have taken a very aggressive stance in New York in challenging foreclosure proceedings.  The following are a list of some of the common defenses used in foreclosure proceedings:

1. Unconscionability of the mortgage.  Unconscionability basically indicates that the mortgage was simply unfair.  The terms of the mortgage must be so unfair as to “shock the conscious” of the court.  A homeowner’s inability to pay the mortgage does not, on its own, make it unconscionable.

2. The failure of the financial institution to follow the appropriate procedures in the foreclosure proceeding.  New York State law lays out the obligations a financial institution has to its customers.  The financial institution must prove all aspects of its case to the court.  The loss of documents, the failure to maintain adequate records or the failure of an employee of the financial institution (who signs the affidavit regarding the case) to have sufficient knowledge of the case are defenses to foreclosure proceedings.

Action to be Taken by Homeowner

The best thing a homeowner should do if they receive notice of a pending foreclosure proceeding is to research what attorneys in their area handle foreclosure defense.  The homeowner should then have an initial consultation with the attorney and discuss how the homeowner’s rights can be protected.

Foreclosure Conferences

In New York, after a foreclosure proceeding is initiated, there must be a foreclosure conference held with the court.  In the event the homeowner has a pending mortgage modification application, the court will usually adjourn the case to see if the application is granted.  If the homeowner’s attorney presents a very vigorous defense, pressure can be placed upon the financial institution to be more reasonable in the granting of the mortgage modification.

About Our Firm

For more than thirty years, our law office has represented individuals in lawsuits involving creditors. We handle foreclosure defense, mortgage modifications and bankruptcies throughout the New York metropolitan area.  We have had a high degree of success in fighting off foreclosure lawsuits.

Should you have questions or problems concerning a foreclosure lawsuit, feel free to call us at 1-800-344-6431, 516-561-6645 or 718-350-2802.

Valley Stream, Lynbrook, Baldwin, Malverne, Freeport, Oceanside, Long Beach, Elmont, Lakeview, West Hempstead, Hempstead, Merrick, Bellmore

We represent individuals throughout the New York Metropolitan area with divorce and child custody, personal injury, car accident, wrongful death, estate administration, nursing home and medicaid issues

The information you obtain at this website is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your particular legal issue. This is attorney advertising.

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