In almost all foreclosure situations the homeowners have applied for a mortgage, they have been approved by the financial institution, they obtained the mortgage, went to closing and purchased their home. Thereafter, the homeowners fell behind on their mortgage. So how can homeowners who borrowed the money and have not made the payments defend a foreclosure lawsuit? Most foreclosure defenses are based on the failure of the financial institution, its attorneys and/or its employees to comply with the many federal, state, local and other regulatory requirements involved in mortgage lending, recording of mortgages, servicing and administrating the mortgages, modifying the mortgages and providing the homeowners with the appropriate statutory notices they are entitled to. Lenders need to comply with many state and local ordinances andrules.
Issues Related to Closings
All financial institutions have disclosure requirements regarding what takes place at real estate closings. They are also laws and rules regarding predatory lending, fraud, unreasonable fees and other issues related to the underwriting of mortgages.
Standing Issues
Financial institutions have to produce the note. They need the original note before they can proceed with the foreclosure. Clear copies of the loan documents should be attached to the complaint. Homeowners should receive 30 days notice under Real Properties Actions and Proceedings Law Section 1304. There may be defective assignments of the mortgage. There may be late assignments of the mortgage. The individuals signing affidavits related to the foreclosure may not have had the appropriate authority to sign those affidavits. Some assignments of the mortgage may be invalid.
Mortgage Modifications
There are many issues that can occur with regard to the mortgage modification process. Sometimes financial institutions do not negotiate in good faith. They have an obligation in New York State to do this. Trial modifications sometimes are approved and then the permanent modifications are arbitrarily denied. Payments made under the trial modifications are sometimes kept by the financial institutions and homeowners are not given credit for those payments.
Litigation Issues
The Summons and Complaints in the foreclosure lawsuit must be properly served on the appropriate party. Homeowners are entitled to 90 days notice under the Real Property Actions and Proceedings Law before the foreclosure lawsuit is started. Financial institutions need to schedule foreclosure settlement mortgage conferences. They need to file affidavits of due diligence. The death of the homeowner can also create significant issues for the financial institution. Financial institutions also need to comply with the Fair Debt Collections Practices Act.
Legal Defenses and Affirmative Defenses
There are many types of defenses and affirmative defenses that can be alleged in foreclosures other than “I don’t owe the money”. The legal defenses need to be plead in the homeowner’s answer and they need to be backed up by detailed discovery demands forcing the financial institution to turn over all their books and records regarding the underwriting of the mortgage, the closing assignments of the mortgage and compliance with federal and state statutes. The way to win a case often involves investigating what the bank and their attorneys did and what they didn’t do. Finding the bank or their attorneys made a mistake in the mortgage or foreclosure process can be a basis for having the foreclosure lawsuit dismissed.
Elliot S. Schlissel, Esq. is a foreclosure lawyer having represented homeowners throughout the Metropolitan New York area for more than 3 decades. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.
If you are facing foreclosure it is strongly suggested you hire an experienced foreclosure defense law firm to represent you in the foreclosure litigation and press the financial institution to give you a mortgage modification. We have offices in Nassau, Suffolk and Queens Counties. We can be reached for a free consultation at 
The ownership of a single family home is the American dream. A foreclosure in effect destroys that dream. Families facing foreclosure are apprehensive with regard to how they will deal with this situation. The threat of having your home sold and being forced out of your home is not something a family looks forward to. However, when a bank initiates a foreclosure lawsuit the homeowners have an opportunity to present their case in front of a judge. Since the foreclosure crisis laws have been enacted in New York State to encourage good faith settlement negotiations between financial institutions and homeowners. It gives homeowners an opportunity to consider all forms of loss mitigation. This includes having the homeowners obtain a reasonable 
