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Mortgage Time Barred And Therefore Cancelled and Discharged

foreclosure attorney Long IslandIn 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.

In this case, Renee took out a mortgage on her property. The mortgage was assigned to HSBC from the prior financial institution. HSBC brought a foreclosure action in 2006 claiming Renee defaulted in making the mortgage payments. HSBC’s original lawsuit was dismissed. In 2009, a second foreclosure action was started by HSBC. This was also conditionally dismissed in 2013 for failure to prosecute by HSBC.

Renee eventually sold the property to Ellery. More than a year passed and thereafter HSBC brought an application to restore the 2013 lawsuit which had been dismissed. Justice Yvonne Lewis denied this request. HSBC took the position the statute of limitations hadn’t run. However, the court took the position since HSBC accelerated the debt upon the filing of the first lawsuit, the statute of limitations had run and therefore any attempt to foreclose was time barred. The judge took the position Ellery was entitled to a judgment dismissing the mortgage because HSBC failed to successfully commence a foreclosure lawsuit within the six year statute of limitations time period. The judge ordered HSBC’s mortgage be dismissed and discharged.

Conclusion

This is a major win for homeowner’s rights. Even though lawsuits can be held to be time barred under the statute of limitations, it is very unusual a judge will go so far as to remove the mortgage lien from the property even though action upon the note is time barred.foreclosure defense lawyer

Notable Foreclosure Cases of 2015

foreclosure attorneyThere are two significant foreclosure cases in 2015 which have a broad impact on foreclosure lawsuits. The first of these two cases is Faison v. Lewis. In this case the New York Court of Appeals, the highest court in New York State, held that when bringing a lawsuit to set aside a mortgage due to forgery in the chain of title there is no statute of limitations.

Statute of Limitations Defense

In the Faison case an action was brought by a homeowner to set aside a mortgage claiming the deed was forged. The financial institution involved plead the usual six year statute of limitations defense had passed since the deed was prepared. They also claimed that more than two years had passed since the homeowner discovered the alleged forgery.

The sum and substance of the court’s decision is that a forgery creates no rights with regard to the deed involved. Therefore there is no point in time that limits the challenge to the document. Homeowners who have been involved in transactions involving fraudulent documents applaud the court’s decision. It eliminates time barred defenses of the statute of limitations which can be raised by financial institutions.

United States Supreme Court Case

The second case of importance to homeowners decided in 2015 was the case of Jesinoski v. Countrywide Home Loans. This decision was made by the United States Supreme Court, the highest court in America. In this unanimous decision, the United States Supreme Court decided a significant issue under the Truth in Lending Act (hereinafter referred to as “TILA”). In this landmark decision, the United States Supreme Court held that all that is needed to be done to rescind a mortgage loan was to send a letter within three years from taking the mortgage out requesting the mortgage be rescinded. Up until this decision it was thought the only way to rescind a mortgage under TILA within the three year period was to commence a lawsuit seeking to rescind the loan on the basis of failure to conform to the disclosure requirements of TILA.

Homeowners now, who feel that there has been a violation of TILA by a lending institution, can simply send a letter to the lending institution rescinding the loan. Starting a lawsuit to set aside the mortgage loan is no longer necessary.

Conclusion

The Faison case decided by the New York State Court of Appeals and Jesinoski case decided by the United States Supreme Court in 2015 further increased the arsenal of defenses and actions that can be used regarding defending foreclosure lawsuits. Foreclosure defense lawyers continue to challenge the mistakes, frauds, omissions, false applications, bait and switch tactics, robo-signers, bad assignments, statute of limitations issues, failure to give notice issues, violations of State and Federal laws, violations of banking laws, violations of Truth in Lending Laws, violations of predatory lending laws, and numerous other defenses in helping keeping beleaguered homeowners in their homes. I look forward to continuing with this process.foreclosure defense lawyer

The Statute of Limitations Defense

To watch today’s video blog, please click on the link below:

https://youtu.be/tIHRQQ2WhdY

Elliot S. Schlissel is a foreclosure lawyer who has been representing homeowners for more than 20 years.  His goal is to keep homeowners in their homes.  He defends homeowners in foreclosure lawsuits and helps his clients in obtaining mortgage modifications.  He and his associates can be reached for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.

Foreclosure Defense in Valley Stream, Lynbrook, Baldwin, Malverne, Freeport, Oceanside, Long Beach, Elmont, Lakeview, West Hempstead, Hempstead, Merrick and Bellmore, New York

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