In a case pending in Supreme court in Westchester county, justice William Glacomo sitting in a foreclosure part dealt with an unusual issue.  US Bank had brought a foreclosure proceeding. In the foreclosure case they had moved for summary judgement (this is a motion requesting a foreclosure order without the need for trial).  They claimed Eisman, who is now deceased did not make his mortgage payments.  An estate was formed for the decedent Eisman. The executor of the estate argued the estate didn’t receive the appropriate notice the home was going into foreclosure under the Real Property Actions and Proceedings Law section 1304.  This section requires a financial institution to give 90 days notice to a homeowner prior to initiating the foreclosure lawsuit.

90 Day Notice Required

Justice William Giacomo found the 90 day notice required under Real Property Actions and Proceedings Law section 1304, only applied to living persons not to estates.  Because Eisman was dead he did not have to be served at the cemetery and the executor of the estate also did not have to be served.

Judge Giacomo’s rational was since the borrower was dead, there was no longer a notice requirement which needed to be given to this borrower. He therefore held that Real Property Actions and Proceedings Law section 1304 no longer applied.

The Estate Issue

When someone dies an estate is created, the executor if there is a will and the administrator, if there is no will, stands, in the shoes of the decedent.  If an obligation was owed to decedent to provide 90 days notice prior to initiating a foreclosure lawsuit, why shouldn’t this also apply to the estate of the decedent?  I believe this issue should be taken up on appeal.

Elliot S Schlissel and his associates are foreclosure lawyers who defend homeowners in the Metropolitan New York area.

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.