There is a six (6) year statute of limitations with regard to bringing a foreclosure lawsuit on a mortgage by a creditor. When the lender accelerates the mortgage (calls the entire balance due and owing, the statute of limitation period starts to run).

Acceleration of the Mortgage

When the bank accelerates a mortgage they must provide written notice to the homeowners. The bank is required to provide the homeowners with 90 days notice they they are accelerating the mortgage before they can initiate a foreclosure lawsuit. The failure of the bank to provide the homeowner with this 90 days notice gives the homeowner a legal defense to to foreclosure lawsuit. Our law office has had foreclosures dismissed due to the banks failure to provide the homeowner with this 90 day notice.

Restarting the Six Year Statute of Limitations

If the homeowner make a payment on a mortgage loan, enters into a mortgage modification or files a Chapter 13 bankruptcy that acknowledges the mortgage debt and agrees to repay it, each of these actions will restart the statute of limitations running all over again. The statute of limitations is a complete defense to a foreclosure lawsuit. If the 6 year period is approaching from the time the bank accelerated the mortgage the homeowner should be very careful to avoid taking any actions that will restart the statute of limitation period again. It is strongly suggested if you believe you have a statute of limitations defense, that you consult with an experienced foreclosure defense lawyer and get his or her opinion regarding this issue.

Elliot S. Schlissel and his associates for more than 3 decades have been representing homeowners throughout the Metropolitan New York area in foreclosure lawsuits. The law firm strives to keep homeowners in their homes and stop foreclosure cases from going forward.

US Bank brought a foreclosure lawsuit against Samuel Rudick. Samuel Rudick and Patricia Rudick, who is deceased, took out a $1.75 million loan for their Westhampton home in 2003. In 2004 their loan was modified. In 2006 the Rudicks took out a second mortgage on their home. During 2006 the first and second mortgages on their home were consolidated into a third mortgage for approximately $2.5 million.

The original financial institution regarding this matter was JP Morgan Chase. Chase eventually sent a notice of default to the Rudicks which stated: “that they had defaulted on their mortgage loan by failing to tender their monthly payments.” A foreclosure lawsuit was brought by JP Morgan Chase in 2008. Chase discontinued this lawsuit. Eventually a second foreclosure action was commenced. A motion was made to dismiss the second lawsuit in 2014. The basis of the dismissal application was that the 6 year statute of limitations had expired since the loan had been accelerated (called due and owing), more than 6 years ago.

A Third Foreclosure Proceeding

US Bank acquired the mortgage from Chase Manhattan Bank. US Bank therefore started a third foreclosure action. This lawsuit was also dismissed.

Conclusion

Homeowners whose homes go in foreclosure should consult with an experienced foreclosure lawyer to see if there is a valid defense to the lawsuit. The homeowners in this case as a result of the excellent legal work by their attorneys came into a $2.5 million windfall!

In a case before Justice David Elliot in Queens County, Supreme Court a foreclosure action was brought by Americas Wholesale Lender. The lender claimed the defendants were in default in their mortgage payments.

Motion to Dismiss

The defense in this case made a pre-answer application to the court asking to dismiss the action based on the fact it was time barred by the statute of limitations. The statute of limitations in foreclosure cases is 6 years from the time the debt is accelerated and/or the entire amount is called to be due and owing. In this case the defendants were able to show the debt was accelerated by commencement of a foreclosure action in 2008 which was subsequently discontinued.

Statute of Limitations Expired Two Years Earlier

The plaintiff in this case brought this foreclosure lawsuit more than 2 years after the expiration of the 6 year statute of limitation period. In their motion the defendants were able to adequately establish the case was time barred by the 6 year statute of limitations.

Judge Elliot in his decision found the plaintiff did not raise an issue of fact that the statute of limitations was re-set by the defendant’s alleged payment in 2010. In addition the attorneys for the financial institution did not establish there was a re-acknowledgment of the debt via a letter requesting a mortgage modification. The defendants’ motion to dismiss the lawsuit was granted.

Conclusion

In each and every case where a foreclosure is initiated against a homeowner the question as to whether there is a complete defense based on the statute of limitation must be evaluated. Should there be a statute of limitations defense an appropriate motion to dismiss should be made.

Elliot S. Schlissel is a foreclosure defense lawyer representing homeowners throughout the Metropolitan New York area for more than 3 decades.

In the case of first impression Justice William Giacomo sitting in the Supreme Court foreclosure part in Westchester County was presented with an issue concerning the filing of a late answer by a homeowner. JP Morgan Chase had started a foreclosure lawsuit on June 8, 2016. The defendant, Hernandez, did not submit a notice of appearance and a written answer; however she did appear at 5 foreclosure settlement conference meetings at the courthouse. The case was eventually removed from the foreclosure settlement part on March 15, 2016. On March 30, 2016 she filed a written answer. The attorneys for JP Morgan Chase rejected the answer. They claimed that the time to submit an answer had expired.

Hernandez brought a motion requesting the court force JP Morgan Chase to accept the late filing of the answer. Justice William Giacomo in his decision held the intent of the new legislation was to allow pro se defendants (defendants who do not have an attorney) who participate in foreclosure conferences to submit answers after the foreclosure conferences end even though they are untimely. In this case Judge Giacomo stated that Hernandez was served with a summons and complaint on June 18, 2016 and she participated in foreclosure settlement conferences. The court noted that 15 days after the case was removed from the foreclosure conference part Hernandez filed her answer. The Judge held that the intent of the new legislation was to allow individuals representing themselves to participate in the litigation process. In this case he found JP Morgan Chase would not suffer any prejudice in permitting Hernandez to file a late answer. He therefore granted her motion and a late answer was now considered to be timely served.

Conclusion

This is a terrific decision for homeowners. Many homeowners come into my office and participate for months and months in the foreclosure settlement conference part only to have their mortgage modification applications denied. They then find themselves in a litigation court part, however since they have not submitted an answer they have defaulted in the case and the judge won’t hear their side of the story. This new statute allows homeowners to file late answers and participate in the legal proceedings regarding the foreclosure on their home.

Elliot S. Schlissel and his associates are foreclosure attorneys, with more than 100 years of combined legal experience, representing homeowners on foreclosure cases throughout the metropolitan New York area. We can be reached at 1-800-344-6431, (516) 561-6645, or (718) 350-2802 for a free consultation.

Elliot S. Schlissel and his associates are foreclosure attorneys, with more than 100 years of combined legal experience, representing homeowners on foreclosure cases throughout the metropolitan New York area. They can be reached at 1-800-344-6431, (516) 561-6645, or (718) 350-2802 for a free consultation.