Foreclosure Sale Stopped: Bank Failed to Serve Proper Notice

March 19, 2016 By Elliot S. Schlissel

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.