If you are being foreclosed on, you may wonder what options you might have to be able to keep your home. Fortunately, there are a few potential defenses available at law that may be able to delay or stop your foreclosure, giving you the opportunity to remain in your home for years to come. Here are seven legal defenses that you may have available to you if you are being foreclosed on:
- Mortgage holder lacks standing to sue
- In theory, the process of lending a mortgage, as well as transferring it to other people, should be well-documented. In practice, though, mortgage lenders and holders can be surprisingly careless with their paperwork. As a result, some mortgage holders may not have the appropriate documentation to prove you legally owe them for your mortgage, meaning they lack the standing to sue.
- Mortgage is not legal
- There are strict legal requirements for lending a mortgage to someone, including requirements for the sales contract, the terms of the mortgage, and the process of closing. If the mortgage does not conform to these requirements, or if they are unfair or fraudulent, it may be possible to avoid being foreclosed on.
- Defective service of summons and complaint
- Any mortgage holder that wants to foreclose on a borrower in New York must comply with a set of strict requirements for summons and complaint. This includes ensuring the summons and complaint has a “Help for Homeowners in Foreclosure” notice along with it. Failure to comply with these requirements can invalidate the foreclosure proceeding.
- Failure to give 90-day pre-foreclosure notice
- Before you can even be foreclosed on, however, a mortgage holder is supposed to give you a 90-day pre-foreclosure notice. This notice is supposed to give you the opportunity to cure the mortgage and avoid the process. If you were never given this pre-foreclosure notice, it can have a similar effect to an invalid summons and complaint.
- Partial or full payment
- At any time before the foreclosure is completed, you can have the opportunity to end it by paying back some or all of what you owe. If you can pay back any owed mortgage payments, you can potentially protect yourself from being foreclosed on.
- Mental disability or incompetence
- The court will also refuse to proceed with a foreclosure against someone who has been deemed to be mentally incompetent, or who had a mental disability of some kind at the time they signed the mortgage. In that case, the entire mortgage agreement could be declared null and void.
- Homeowner is an active servicemember
- If the homeowner is an active duty servicemember and their name is on the mortgage, a mortgage holder cannot foreclose on them by law. If they attempt to, the court can intervene to prevent the foreclosure. However, to know if these defenses could protect you, you should speak to a lawyer with experience handling foreclosures.
At David J. Lorber & Associates, PLLC, we assist clients throughout New York who are at risk of losing their homes to foreclosure. We will explain your options and guide you in making the best decision for your circumstances. Call us at (631) 750-0900 or contact us online to schedule your Free consultation at our Setauket office.
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