Mortgage foreclosure lawsuits in the state of New York have been made more difficult, by actions of the state legislature. In addition to foreclosure lawsuits becoming more difficult, they’re taking longer and longer to get through the courts. There are more reasons or grounds that foreclosure defense lawyers can use to have foreclosure lawsuits dismissed.
STATUTE OF LIMITATIONS
Financial institutions have six years from the time the mortgage is accelerated to bring a foreclosure case. The acceleration of the mortgage starts when the bank calls the entire mortgage due and owing. In the event, the financial institution and/or their lawyers did not move forward with the foreclosure lawsuit within six years of the acceleration of the mortgage the case can be dismissed for violation of the statute of limitations regarding a mortgage default. The violation of statute of limitations simply makes the mortgage unenforceable.
If a lender brings a foreclosure lawsuit and then for one reason or another it is discontinued, this does not stop the acceleration of the mortgage from continuing to run. Even if the foreclosure is dismissed by the court, it does not necessarily stop the six year statute of limitation from running.
DISCONTINUING THE LAWSUIT
THE SAVING GRACE FOR BANKS
There is a section of the New York Civil Practice Law and Rules, Section 205 which is the saving grace for banks that discontinue a lawsuit or have a lawsuit dismissed. This section states if the foreclosure action has been dismissed, at which time the statute of limitations has expired, there is a limited authority which allows an action to be reinstituted. If the lawsuit was originally commenced on a timely basis, but later terminated, the financial institution is permitted to commence a new lawsuit upon the same facts and circumstances within six months after the termination of the original lawsuit.
The dismissal of a foreclosure lawsuit and preventing it from being brought again is a complicated process. Should you think you have the possibility of a statute of limitations defense the best way to deal with any questions regarding this issue would be to contact an experienced foreclosure defense lawyer.
The law office of Schlissel DeCorpo have been defending homeowners regarding mortgage issues for more than three decades. They can be reached at 516-561-6645, 718-350-2802, 631-319-8262 and 914-998-0080 or emailed at Elliot@sdnylaw.com.
