FORECLOSURE DEFENSE

Especially in New York, the field of foreclosure law has become a rapidly developing and constantly evolving specialty practice. Foreclosure law is very complex and requires the defense lawyer who challenges the bank/lender's lawyers in court to be a fearless litigator with a working knowledge of securities law, real property law, contract law, trust law and commercial law (as it relates to negotiable instruments).  For a recent example of attorney Calender’s successful challenge to a bank’s foreclosure case in court, Click Here.

Once the bank initiates foreclosure proceedings in Supreme Court, the case immediately proceeds to pretrial "discovery", a procedure by which the homeowner's attorney formally requests documents and information from the bank, and vice versa. Some cases will require the attorney to conduct pre-trial examinations of the bank's representatives ("depositions") and, ultimately, conduct a non-jury trial. This in-court area of practice is described as "foreclosure defense".  It is but one of many aspects of "commercial litigation" and is conducted by a "trial attorney".

There are many ways to contest a foreclosure proceeding commenced by the bank.

Here are a few examples of issues that Mr. Calender has successfully raised in court:

1.       Did the lender have possession of the original mortgage and note at the time the foreclosure case was filed? In order to commence a valid foreclosure case, the plaintiff (the original lender, its nominee, or an assignee of either) must have a legal or equitable interest in the mortgage and note (this is referred to as "standing" to sue). A foreclosure plaintiff has standing only where it can prove that it is both (1) the holder or assignee of the mortgage in question and (2) the holder or assignee of the underlying note, either by physical delivery or execution of a written assignment prior to the filing of the foreclosure action. Without the note, the foreclosure case stalls abruptly, buying the homeowner crucial time and leverage.

2.       Did the lender engage in fraudulent practices by forging loan documents or submitting affidavits containing misleading facts or outright false statements?

3.       Did the lender commit fraud by inducing the homeowner to enter into an unfair home purchase by, e.g., representing that the mortgage was fair and affordable when in fact it included drastic and unaffordable rate increases?

4.       Were the court papers validly served on the homeowner in accordance with the requirements of New York law? In one recent foreclosure case filed by a bank in 2015, Attorney Calender’s review of the court file revealed that the bank served the court papers by delivery to a member of the client’s household in the State of Georgia, which was then the client’s residence. (The service would have been proper if made in New York State.) This unlawful out-of-state service, had it gone undetected, would have enabled the bank to proceed with an unlawful foreclosure of the client’s home.

5.       Did the lender's  lawyers serve the homeowner with all notices required by the law and court rules?

6.       Are the interest, late charges, penalties and legal fees claimed in the foreclosure complaint authorized by the loan documents? Are they in conformity with the rules of the State Supreme Court?

7.       Did the lender violate any of the numerous safeguards contained in the Federal Truth In Lending Act (15 U.S.C. section 1601 et seq.), enacted for the protection of homeowners?

The Law Offices of DAVID B. CALENDER will investigate, detect and challenge any improper conduct by the bank's attorneys in the foreclosure process, buying valuable time and thereby enabling the homeowner to reinstate the mortgage or secure a modification of the mortgage terms. In cases where the mortgage lender cannot legally establish its legal right to sue, an appropriate motion will be made to dismiss the foreclosure case.  For a recent example where a foreclosure case was dismissed with fatal consequences for the bank, Click Here.