Plaintiff's actions, millions of homes have been foreclosed on or are in foreclosure. 2d 721 (Fla. Dist. Start here to find foreclosure lawyers near you. COMPANY, AS TRUSTEE FOR MORGAN CASE NO: 07-xxxx-CA Co., 159 So. Bartram v. U.S. Bank Nat. However, the information contained herein is relevant to the borrower and its counsel as well. Moreover, banks will often lose the original promissory note or mortgage, which can make it even more difficult to prove standing. CERTIFICATES, SERIES 2006-HE6, Ct. App. Another collection of foreclosure defenses available to a borrower is determining whether or not there has been a legal default under the mortgage. See, Edelstein v. Peninsular Lumber Supply Co., 247 So. ("FDCPA") and Florida Consumer Collections Practices Act ("FCCPA"). There are more issues that can be raised to defend a Florida foreclosure lawsuit, like usury and duress. affirmative defenses fail to provide fair notice to [the plaintiff] as to the nature of the defenses."). Piccolo, 453 So. Do you have questions or comments? Sav. When a foreclosing plaintiff is unable to produce the original note (and the homeowner has effectively preserved their legal rights with an answer and affirmative defense), a situation arises that is known, in common parlance, as the "show me the note" foreclosure defense. An individual whopurchases a propertyin development needs to agree with several terms and conditions contained in the developments governing documents. Ct. App. denied and strict proof is demanded thereon. In Criminal and Civil law, an Affirmative defense is a fact or set of facts that if proven by the defendant, nullifies or mitigates the legal consequences of the defendant's otherwise unlawful conduct. For guidance on commercial mortgage foreclosure in Florida, see Commercial Mortgage Foreclosure (FL). FAILURE TO COMPLY WITH APPLICABLE HUD SINGLE FAMILY DEFAULT LOAN SERVICES REQUIREMENTS/FAILURE TO COMPLY WITH CONDITIONS PRECEDENT: FAILURE OF GOOD FAITH AND FAIR DEALING: UNFAIR AND UNACCEPTABLE LOAN SERVICING, One affirmative defense we can use for when the lender lost the note (from our. 3d 149, 152 (Fla. 4th DCA 2016) (dismissing foreclosure lawsuit for lack of standing because assignment of the mortgage took place after the foreclosure lawsuit was filed). The "show me the note" and "lack of standing" defenses are usually available only to property owners who both: (a) answer the foreclosure summons and complaint, and (b) assert the defenses in their responses as affirmative defenses. Luckily, lenders only have to show that they substantially complied with the requirements. Neither the exhibits attached to Plaintiffs Complaint nor the allegations of the Complaint are sufficient to demonstrate standing. Lets say your friend lets you borrow $20.00. . Here is the outline of the 12 other affirmative defenses that were raised: One affirmative defense we can use for when the lender lost the note (from our second foreclosure example) may look like this: Referencing Previously Ruled Court Cases: The Rest of the First Affirmative Defense: Consults are free, even if you are asking general foreclosure questions. Essentially, tender means to pay the bank the amount that is due and bring the account current. Plaintiff does not have standing to bring this action. InFlorida, residents who live in a planned development and who do not pay the required fees/assessments required by the HOA are exposed to the risk of home foreclosure. If you are the site owner (or you manage this site), please whitelist your IP or if you think this block is an error please open a support ticket and make sure to include the block details (displayed in the box below), so we can assist you in troubleshooting the issue. Adam Smith Enterprises, Inc. v. Barnes, 539 So.2d 549 (Fla. 2d DCA 1989). 3d 58, 60 (Fla. 4th DCA 2016) (Where there are conditions precedent to filing the suit, [a] plaintiff must also prove that it has complied with them.). If an individual has evidence that an HOA has improperly calculated the assessments and files for justice in court, the HOA has the burden to show how all amounts were calculated (assessments, late fees, interest, fines, etc.). A homeowner may also allege, as an affirmative defense to foreclosure, that any alleged assignment of the mortgage was cone without compliance with the mandatory notice provisions imposed upon lenders under federal law to effectuate an assignment of a residential mortgage. If the bank fails to meet that legal notice requirement, then the defendant can request that the foreclosure action be dismissed. FL_Affirmative Defenses_CH01.indd 4 7/20/2021 2:23:07 AM. & Loan Assoc., 502 So. F.S. For example, if a homeowner doesnt raise an affirmative in their answer and thereafter asserts it in response to a summary judgment motion brought by the bank then the homeowner may not be able to raise the defense at the hearing (however, a homeowner can always seek to amend their answer to raise an affirmative defense but dont wait until the hearing to do so). In a foreclosure action, the bank must follow all the legal formalities of any other civil plaintiff. 1. Find out why the average homeowner generally does not have the resources available to defend against foreclosure without an attorney. The defense of unclean hands is an equitable defense, however, [a]ll mortgages in Florida are foreclosed in equity. Fla. Stat. 3. 713, has a lien on the improved real property for any money that is owed to . & Loan Assoc., 502 So. Here we reference a previously ruled case to enforce our claim: Kumar Corp. v Nopal Lines, Ltd, et. They should have an. Standing means that the party seeking foreclosure has a right to bring the lawsuit. 15 U.S.C. Although the specific requirements vary in each loan agreement, lenders are usually required to provide borrowers with notice that they are behind in their loan payments, an opportunity to cure the default by making a payment or performing some sort of action within a stated period of time (usually not less than 30 days), and notice that if they do not cure the default in the stated period of time, the lender has the right to accelerate the loan. Roberts v. Roberts, 84 So. Therefore, we strongly recommend talking with a Florida real estate lawyer to learn your rights. Phone consultations are always free. Sample Affirmative Defenses and counterclaim - Free download as Word Doc (.doc), PDF File (.pdf), Text File (.txt) or read online for free. The plaintiff must also demonstrate that it holds the note and mortgage at the time of the trial. All foreclosures in Florida must be brought within five years from the date of default. Referencing case law and previously ruled cases is another important part when creating your affirmative defenses. Standing requires that the party prosecuting the action have a sufficient stake in the outcome and that the party bringing the claim be recognized in the law as being a real party in interest entitled to bring the claim. This condition is commonly found in the 22nd paragraph of the mortgage. Typically you will reference previously ruled court cases to help your defense. Plaintiff should have included a count to reform the mortgage, to help explain these material ambiguities, which would have in turn, created a more definite statement. However, theres nothing which evidences any transfer to the Plaintiff. defenses to the foreclosure. What Are Statutory Damages Under the FCCPA and the FDCPA? "The elements of equitable estoppel are (1) a representation as to a material fact that is contrary to a later-asserted position, (2) reliance on that representation, and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon." Get in touch withAttorney Romy B. Juradotoday by calling(305) 921-0440or by sending us an email atRomy@jflawfirm.com. 3d at 251. 1701), lenders are required to advise homeowners of loan counseling options offered by the U.S. Department of Housing and Urban Development (HUD). What are the affirmative defenses to a foreclosure lawsuit? Defendant, JOHN DOE, hereby respond to the allegations of the Compliant and state affirmatively: 1. Each case is unique and each case must be analyzed according to its specific circumstances. 2 * We limit our focus here to defenses specific only to the action. UnderRule 1.070 of the Florida Rules of Civil Procedure, the bank has 120 days to serve the borrower with a summons, and the time begins to run on the date that the lawsuit was filed with the clerks office. Before filing a foreclosure lawsuit, lenders should assess the loan file and history to spot any possible defenses, and take them into consideration when deciding how to proceed in collecting the loan. Ch. Assn, 359 So.2d 464 (Fla. 4th DCA 1978)). The server must initial the copies given (served) to the borrower. The lenders' and mortgage servicers' sloppy record keeping and abusive practices can be of benefit to homeowners trying to defend against foreclosure. Similarly, in some instances, there have been so many assignments (and the assignments were handled so carelessly) that the original notes are missing. Standing requires that the party prosecuting the action have a sufficient stake in the outcome and that the party bringing the claim be recognized in the law as being a real party in interest entitled to bring the claim. Read: Lost Notes in Florida Foreclosure Cases: Banks Must Prove Their Case With Valid Legal Documents, Bank Failed To Properly Assign The Mortgage Or Endorse The Note. If the borrower can demonstrate that the home loan was based upon fraud on the part of the lender or its agents, then the foreclosure action should fail. LARRY TOLCHINSKY, ESQ. Conditions a Bank Must Satisfy Before Filing a Foreclosure in Florida, defective or insufficient service of process, Lost Notes in Florida Foreclosure Cases: Banks Must Prove Their Case With Valid Legal Documents, Florida Foreclosure Appeal on The Issue of Standing; Victory Against Bank of America. 3d 920, 920 (Fla. 4th DCA 2015) (holding foreclosure lawsuit should be dismissed because lender failed to prove that it complied with the mortgage and notes contractual requirement to mail notice of default to borrower as a condition precedent to foreclosure). Seek help with anexpert foreclosure attorneyto find a defense strategy for your case. refuted the Homeowners' affirmative defense of unclean hands, thereby precluding the entry of a final judgment of foreclosure. If the note does not name the plaintiff as the payee, the note must bear a special endorsement in favor of the plaintiff or a blank endorsement. In a substantial number of cases, foreclosing plaintiffs (who are typically assignees, rather than the original lenders) are unable to produce the alleged assignment documents pursuant to which they purportedly acquired an interest in the loan. mjk funeral home obituaries; san jose state university graduate programs deadlines Men umschalten. 3d 1009, 1019 (Fla. 2016) ([W]ith each subsequent default, the statute of limitations runs from the date of each new default providing the mortgagee the right, but not the obligation, to accelerate all sums then due under the note and mortgage.). : 2011-0793-CA-O. If the lender is unable to satisfy this burden, the court may refuse to grant the foreclosure sought by the bank for failing to fulfil a condition precedent to foreclosure. During the transport everything was stolen. Because Florida's common law authorities have established that plaintiff's lack of standing is an affirmative defense, it stands to reason that a defendant faced with a civil action for mortgage foreclosure would have the burden to allege and prove the plaintiff's lack of standing. Your use of this website constitutes acceptance of the Terms of Use, Supplemental Terms, Privacy Policy and Cookie Policy. Copyright 1999 2023 GoDaddy Operating Company, LLC. mortgage and note, and other such relief that this court deems proper. This entitlement to prosecute a claim in Florida courts rest exclusively in those persons granted by substantive law, the power to enforce the claim. Also, please note, under Florida Statute 95.031, the SOL starts to run when the last element constituting the cause of action occurs. Borrowers must get special disclosures for these kinds of mortgages. IN AND FOR ORANGE COUNTY, FLORIDA . x%9)&s`]_g=^,zjlguDQ$EOo{miog{?/ooO])k[P*%t{%kX?gd7q?~MmW?l{,?g9gAr-~G~?m-?U~i{mgoKWr:enX>Z3d.1,o/6(K[)+dn~c=tmYlO)n~\5+&96iY#go{,pXj9kYZo}{vy%C}ZD}txopv R2R2i3Fox{`Cg?}=#%L|=~_kmL~zkKYcou2trijln5Yi:&.};j{nO\h5:tg23d>IP%*vBx. Inc. v. Scialabba, 238 So. Sackrin & Tolchinsky, P.A. Mortgage loan servicers are required to apply payments and charges to a mortgage loan in compliance with federal law 12 U.S.C. M If the statute of limitations is a viable defense be sure to plead it in the answer, as it may be waived if not so pled. Defendants assert that Plaintiff comes to court with unclean hands and is prohibited by reason thereof from obtaining the equitable relief of foreclosure from this court. Citigroup Mortg. Here, longstanding principles of fairness (equity) are applied to the situation. Determine If Your Home Foreclosure is Eligible to be Defended. 3. We will present the elements of the actions; and suggest potentially successful defenses* to those actions. For example, Florida courts have found that a lender came to the court with unclean hands when it altered the borrowers income information on the loan application, without the borrowers knowledge, in order to qualify the borrower for a loan, which resulted in a payment increase of 50%. All Rights Reserved. The note which was attached to the original Complaint shows the Note being endorsed from the Original Lender to a SuperStar Mortgage Inc. The Plaintiff does not prove that it owns, holds, or has the right to enforce the mortgage. Affirmative Defenses to Foreclosure Based on Noncompliance with Notice Requirements: Based on this, a lender, or the holder of the note and mortgage, must bring its foreclosure lawsuit within five years from the date of default. Unclean Hands Doctrine (Unconscionability), In Florida, since mortgage foreclosure lawsuits are considered equitable proceedings, (See Cross v. Federal Natl Mtg. There are times when the borrower has paid his or her monthly mortgage payments late, but the lender still accepts the payments. Plaintiff does not have standing to bring this action. No Transfer of the Note (Privity) = Lack of . Kumar Corp. v Norpal Lines, Ltd, et. Defendants hereby claim and reserve any right or interest it may have in or to any surplus proceeds that may result from the Plaintiffs foreclosure of the subject property. Imagine then some random person you dont know walks up to you demanding the $20.00 that you owe your friend. Country Place Cmty. Florida Bar No. Plaintiff does not have standing to bring this action. 3. This includes meeting the procedural requirements for service of process upon the borrower as a party defendant. Standardized forms for all States are generally not acceptable. ecolife organic quick cook brown basmati rice, . The Forth District elaborated on this rule in Phillips v. Choate, 456 So. Plaintiff has failed to, establish itself as the real party in interest and has failed to, shows that the mortgagee is MERS as nominee, that the lender who originated the note and the payee is Wachovia Mortgage, notarized, permanently affixed to the note or placed on the instrument where, Construction Center, Inc. v. Gross, 316 So. This court should refuse the acceleration and deny foreclosure because Plaintiff has waived the right to acceleration or is stopped from doing so because of misleading conduct. Besides single-family homes, Florida condos are often the subject of foreclosure lawsuits. Telephone: (954) 455-0800 UnderRule 1.130, the lender must attach both the mortgage and the promissory note to the pleading asserting its foreclosure cause of action (the complaint). In increasing numbers, homeowners have filed answers to foreclosure complaints, thus delaying, and in some instances, stopping judgments from being entered. PNC Bank, Natl Assn v. Smith, 225 So. Deny that plaintiff is entitled to recover its attorney fees. In Florida, any HOA that fails to comply with the state statutory requirements regarding foreclosure may not be successful in its attempt to attach a lien and enforce foreclosure against an individuals property. If you write that 50% of all homes in Florida are in foreclosure, readers would want to know where you got that number from. In Florida, foreclosure defenses (for residential foreclosures) can be categorized into three different arguments. Another common defense in foreclosure lawsuits in Florida is the lender failed to provide the required notice of default. Admit that copies of a Mortgage and Note are. Ocwen Filing Bad Foreclosure Lawsuits: Is Ocwen Servicing Your Mortgage? If the loan servicer failed to properly credit payments and/ or charge costs in compliance with this statute the lender may have a problem prevailing in the foreclosure action. Each new default, based on a different act or date of default, creates a new cause of action. Once a lien is attached by an HOA on an individuals property, it will generally incur foreclosure (even in cases where the property owner has paid the mortgage as required). Under Florida law, a homeowner's answer to a foreclosure complaint may include the affirmative defense that the plaintiff lacks legal standing to obtain a judgment of foreclosure. The common affirmative defenses are fraud, undue influence, lack of notice required under the mortgage, standing, payment, and duress. 846, 848 (Fla. 1928) (quoting Indian River Mfg. The Mortgage clearly states that, MERS is the mortgagee. With mortgagee being synonymous with lender, this statement acts to establish MERS as the original lender, rendering them a necessary and indispensable party to this action. Where did this person get a standing claim for the $20.00 you owe your friend? All forms are available in Word format. 4. Another defense in foreclosure lawsuits is that the foreclosing plaintiff came to the court with unclean hands. In addition to providing an affirmative defense to lien foreclosure actions, fraudulent lien claims may, under 713.31(2)(c), be asserted as counterclaims, crossclaims, or . Assn v. J.P. Morgan Mortg. It is surprising how often lenders, with their staff of attorneys as well as outside counsel, have failed to file a proper pleading in a foreclosure lawsuit. 6. All other provisions ofFlorida Rule of Procedure 1.115must also be met, as the specific procedural rule governing mortgage foreclosures in Florida. Sign up for our complimentary monthly newsletter and receive practical tips and information regarding developments in the fast-paced world of real estate law. 5. 4th DCA 1975), Do not sell or share my personal information. The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site. Discussion: 3.03 3.03[2] Necessity of Pleading the Defense. How can it help me stop foreclosure? While the foreclosure is proceeding through the court system, the homeowner will have a right to raise legal defenses to the bank's foreclosure. Consequently, defendant argues that the action must be dismissed. Remember the friend who you owed $20.00 and some other guy came up asking for payment? This entitlement to prosecute a claim in Florida courts rest exclusively in those persons granted by substantive law, the power to enforce the claim. Under 12 CFR 226.3, a buyer or assignee must notify the borrower within 30 days from the date a mortgage loan is sold or assigned to a new owner. Some of the common defenses to foreclosure include: lack of standing; failure to provide required notice of default; statute of limitations; and unclean hands. Copyright 2008-2023 Jimerson Birr, P.A. - We Help Stop Home Foreclosure and Remove Debt Liability-. STANLEY ABS CAPITAL I, INC., TRUST 462 So.2d 1178, (FLa. 3d DCA 1985). 5. Those arguments focus upon either (1) the validity of the mortgage; (2) whether or not there has been a "default" under the law; and (3) if the lender had a legal right to accelerate the debt under the circumstances of the case. - All Rights Reserved, Community Advocacy & Social Responsibility, Hiring for Florida Banks and Credit Unions: A Summary of Background Checks and Other Information Required to Comply With Various Regulatory Schemes, Overview of a Trust Beneficiarys Remedies Under the Florida Trust Code for Breach of Trust. Over time, Florida courts have built legal principles consisting of equity defenses which apply both in standard contract cases as well as in foreclosure actions. 130, 139 (1855)), where it defined an indispensable party as one whose interest in the controversy is of :such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience. Although MERS, as original mortgagee, is an indispensable party, Plaintiff did not join MERS in this action. an HOA failed to record the lien properly. If a bank cannot establish standing they will not be able to prevail in the foreclosure action. The ruling of Kumar Corp. v Nopal Lines reinforces your argument. The disclosures must be given at least 72 hours before closing on the loan. 2d 297, 299 (Fla. 3d DCA 1982)(An indispensable party [is] one without whom the rights of others cannot be determined.). They used a transport company (Nopal) to transport the TV sets and parts to Venezuela. Defendants claims Plaintiffs non-compliance with the conditions precedent to foreclosure imposed on the plaintiff pursuant to applicable pooling and servicing agreement. Defenses based on missing mortgage documents and/or assignments are far from the only defense tactics available to foreclosure defendants. However, proving fraud is not easy to do because the elements of fraud must be proven with particularity. 22 Affirmative Defenses To Stop Foreclosure What is an affirmative defense? This is just a single argument for this affirmative defense. If the homeowner can successfully raise doubts as to the bank's standing they may prevail in the foreclosure case. WHEREFORE, Defendants, De.O and Do.O, respectfully request that this Court take jurisdiction of the case, dismiss the Plaintiffs complaint with prejudice, decline to enforce the notice pled, award costs and reasonable attorneys fees to the Defendants and grant such further relief as this court deems just and proper. Defendant. The Plaintiffs unclean hands result from the intentional failure to comply with material terms of the mortgage and note. alan@hallandalelaw.com If a foreclosure lawsuit is filed after the deadline has passed, then it is barred by operation of law. 3d 1120, 1122 (Fla. 1st DCA 2020). See, Florida Rules of Procedure 1.115(e). Shahar, 125 So. 2. If the mortgage has changed hands between financial institutions (one bank sells the loan to another), then there needs to be proper corresponding assignments of the mortgage and endorsements to the note (or the Allonge). Sav. Lack of Standing The notice to the homeowner must indicate the action required to cure the default and provide at least 30 days to cure the default before the bank can initiate foreclosure. The defenses described herein may not be applicable to every home foreclosure case, you should seek the advice of a licensed attorney in your area for more information about your specific case. ([T]he statute of limitations on the balance under the note and mortgage would not continue to run after an involuntary dismissal, and thus the mortgagee would not be barred by the statute of limitations from filing a successive foreclosure action premised on a separate and distinct default.). Call us today at 954-807-1361 or contact our . Affirmative Defenses to Foreclosure Based on Missing Notes and/or Lack of Standing: fraudstoppers.org/22-affirmative-foreclosure-defenses/, Mozilla/5.0 (Macintosh; Intel Mac OS X 10_15_7) AppleWebKit/605.1.15 (KHTML, like Gecko) Version/15.5 Safari/605.1.15. A US company (Kumar) sold TV sets and parts to a Venezuelan company (Nava) with an agreement that they would be paid after the parts were sold by Nava. What Are Actual Damages Under the FCCPA and the FDCPA? by Larry Tolchinsky | Florida Foreclosures, Foreclosure Defense | 0 comments. Defendants, De.O and Do.O denies the substantive allegations of the complaint including, but not limited to, paragraphs 2, 3, 4, 5, 7, 8, 9, 11, and 12. 2d 488 (Fla. Dist. Think of it like referencing a source when you write an essay. Co. v. Wooten, 37 So. The header is numbered and used to state the first defense and helps keep track of each affirmative defense. Most mortgages include a condition that the bank notify the homeowner that the loan is in default prior to initiating a foreclosure lawsuit. The longstanding legal axiom underlying these decisions is quite clear: a transfer of the mortgage without the debt is a nullity, and no interest is assigned unless the underlying note has been assigned. Plaintiff does not have standing to bring this action. 702.01. This deadline is set in our statute of limitations.. To increase chances of success in foreclosure, lenders should be aware of what these defenses are and how to overcome them. (The state version of HOEPA, the Florida Fair Lending Act, is found in Florida Statutes 494.001 et seq.). A good foreclosure attorney will find problems with the lenders foreclosure lawsuit and exploit them to your advantage. foreclosure cases decreased by 52 percent, from 94 percent in Fiscal Year 2005-2006 . %PDF-1.3 Free Previews available. A good piece of advice if you are dealing with a foreclosure in Florida, is to speak with an experienced Florida real estate lawyer to learn about your rights, including learning if any of the above foreclosure defenses apply to your loan. Many state legislatures have enacted mandatory notice requirements that lenders are required to follow prior to commencing a mortgage foreclosure proceeding. Answer 3 quick questions to see if you have a foreclosure defense case. All fines, interest, and fees assessed by an HOA must be reasonable. In such situations, the banks may not be able to establish that they have standing to foreclose. Ct. App. 3d 294, 295 (Fla. 5th DCA 2017) (Unclean hands may be asserted as an affirmative defense to a mortgage foreclosure action.). Plaintiff does not have standing to bring this action. 2605. 2d 1316 (Fla. Dist. For an overview of the mortgage foreclosure process, see 2 Florida Real Estate Transactions 32.80. Proving standing can sometimes be difficult for a bank because in most foreclosure cases the bank seeking foreclosure is not the bank that originated the mortgage loan. The specific requirements that lenders must follow to provide a borrower with notice of default are found in the loan documents or loan modification agreement. Attorney for Defendants Kumar had not received payment from Nava and was not carrying insurance for the items being sold. In this article, we provide a guide on how to defend against HOA foreclosure in Florida. It is possible to utilize the failure of an HOA to record a lien properly as a defense against foreclosure in Florida. Similarly, in Florida, a court recently ruled that an assignee had standing even though the mortgage itself had not been transferred prior to the commencement of the foreclosure lawsuit where it produced the original note that was endorsed in blank. ANSWER: Mrs. Dunn admits that the mortgage is in default . The Plaintiff does not prove that it owns, holds, or has the right to enforce the mortgage. Please reference the Terms of Use and the Supplemental Terms for specific information related to your state. In Florida, lack of standing is a common defense in a foreclosure lawsuit. Since Kumar did not have insurance they were deemed the insurer. 1957). This is especially helpful when trying to get leftover debt waived. 20TH JUDICIAL CIRCUIT IN AND The person who serves the borrower is called the process server.. Unfortunately, many people lose their homes even after leaving a few thousand dollars behind on HOA assessments. Some of the law firms that handled the largest volume of foreclosures several years ago have been forced out of business. Foreclosure against the [homeowner] because it is threatening to take a legal action that it cannot legally take and used a false misrepresentation or deception to collect a debt that . FLORIDA AFFIRMATIVE DEFENSES 2022 5 DEFENSES ARE PERMITTED IN CERTAIN 1-3 PLEADINGS AND MOTIONS and adequacy of the grounds of his claim, both in For example, in New York, RPAPL 1304 requires that a lender give at least 90-days notice prior to commencing an action against a borrower when the underlying loan constitutes a "home loan" as defined in the statute. In addition to the above substantive categories of defense in a residential foreclosure, the defendant may find a successful argument against the banks attempt to foreclose on their home-based upon procedure and due process failures. Regardless of the situation, a lien must be properly recorded in the county records to be considered valid. An indispensable party is one whose interest in the controversy makes it impossible to completely adjudicate the matter without affecting either that partys interest or the interests of another party in the action.
02 40 14 36 22