In a Supreme Court proceeding in Kings County, Justice Yvonne Lewis stopped a foreclosure sale from moving forward. The owner of the property brought an application to stop the sale of his cooperative apartment. He took the position he had never received proof the foreclosing bank was the owner and/or holder of the note and mortgage concerning his cooperative apartment. He claimed the position the financial institution did not send him a notice of default with regard to the mortgage. The notice of default would also require written notice the financial institution intended to accelerate the mortgage loan and call the entire balance due. When the challenge was made, the financial institution was not able to produce evidence they had legal standing to bring the foreclosure lawsuit.
The bank claimed they were not required to comply with the notice requirements concerning the mortgage because this was a security interest in a coop apartment which is not real estate. Justice Yvonne Lewis disagreed. She found upon review of the submission made by the financial institution they had failed to comply with the notice requirements. Her decision stated the notice requirements were a condition precedent that needed to be accomplished prior to the initiation of a foreclosure lawsuit. The financial institution had to provide the homeowner with ninety days notice they intended to foreclose. In addition, in this case, Judge Lewis found the foreclosure sale of the property could not go forward and they homeowners could not be evicted.
Conclusion
There are dozens of defenses to foreclosure lawsuits. If the appropriate defenses are stated in the proper manner, foreclosure lawsuits can be stopped in their tracks.
In a case before Justice Yvonne Lewis sitting in the Supreme Court Foreclosure Part in Kings County, defendant Ellery Beaver LLC brought an application for summary judgment seeking the discharge of HSBC’s mortgage on their property. HSBC brought a cross application for dismissal of the action by the plaintiff.
The Consumer Financial Protection Bureau is reviewing new regulations which will put the brakes on a contentious practice called mandatory arbitration. Under mandatory arbitration rules, consumers must take disputes they have with financial institutions to third party mediators. This prevents them from going into courts and presenting their issues to judges. Consumer advocates feel this practice benefits large financial institutions, credit card issuers and financial service providers to the detriment of consumers.
Justice Phyllis Orlikoff Flug sitting in a Foreclosure Part in Queens County Supreme Court recently had a case where the defendants moved to dismiss the bank’s lawsuit in a foreclosure legal action. The lawsuit had been initiated against the defendants Michael Pertab and Cholying Pertab in 2010. Michael had been served by personal service in July 2010 and Cholying had been served by substituted legal service in August 2010.
New York Real Property Actions and Proceedings Law (RPAPL) Section 1304 requires financial institutions and loan servicing companies to provide homeowners, on residential property, at least 90 days notice before initiating a 
Has the bank initiated a foreclosure action against you? How do you know the bank has acted appropriately with regard to fulfilling their obligations as a financial institution? The question then becomes, is the 
