Foreclosure Dismissed: Bank Makes Technical Mistake

foreclosure defense for homeownersIn a case before Justice Wilma Guzman in Bronx County, Judge Guzman dismissed a foreclosure lawsuit. Deutsche Bank had sued for foreclosure. They moved for a judgment of foreclosure and asked that they be allowed to sell the property. The defendant, Samuel Lopez, brought a cross-motion. He asked that the foreclosure proceeding be dismissed. He claimed there was a failure to comply with a condition precedent of Real Property Actions and Proceedings Law sections 1303 and 1304. He argued in his motion the section 1304 notice to the defendants, provided by American Servicing Company, indicated it was a debt collector and informed defendants they had a right to cure their default and failure to do so might result in American Servicing Company starting a lawsuit against them. Deutsche Bank argued it was in full compliance with section 1304. It was pointed out its notice to the defendants did not contain the method in which the notice had been mailed. This is required by this section of the law.

No Evidence of Mailing

Judge Guzman took into consideration in rendering her decision to dismiss the foreclosure action that no evidence was presented of a first class mailing. There was also no affidavit of mailing for a lender, the lender’s agents or any individual with personal knowledge of the transaction. Justice Guzman’s decision stated a mortgagee’s failure to strictly comply with a condition precedent required the dismissal of this foreclosure legal action.

In this case, American Servicing Company did not provide documentation they were the appropriate loan servicing agent for Deutsche Bank. They also did not fully comply with section 1304 of the Real Property Actions and Proceedings Law. Justice Guzman also pointed out in her decision the Home Equity Theft Prevention Act required a notice as a mandatory “condition” before a financial institution could proceed with a foreclosure lawsuit. The failure of Deutsche Bank and its servicing agent to strictly comply with this statute was valid grounds to dismiss this case.

Conclusion

helping homeowners stay in their homesIf a bank doesn’t dot its i’s and cross its t’s, you can get the case dismissed!

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