Our offices represent numerous lenders in the successful recapturing of properties that are encumbered by a mortgage. Because of our experience in representing lenders it is quite evident that we know all the pitfalls that one may encounter if they were not properly represented by attorneys such as Kishner & Miller. If you have been fortunate enough to have us represent you in preparing the loan documents you will not have to deal with the defenses that a potential debtor may invoke against you.
However, if you one of the millions of people in the United States facing foreclosure of their homes each year, and you were looking at this website, you are already on the path to assisting yourself. It is unquestionable that a person facing mortgage foreclosure action should retain an attorney. Incredibly, only few hire an attorney to defend them, assuming usually incorrectly that there is nothing an attorney can do to stop a foreclosure. This is often a huge mistake. In New York, a mortgage foreclosure is neither simple nor cut-and-dry. If the foreclosure is properly contested, it is possible to delay or defeat the foreclosure completely or obtain a very advantageous settlement.
Our strategy for defeating foreclosure actions involves a combination of: (1) forcing the mortgage holder to prove its entire claim against the homeowner, (2) asserting specific defenses to mortgage foreclosure lawsuits, and (3) bringing counterclaims (lawsuits) against the alleged mortgage holder, and third-party claims (lawsuits) against companies that were not originally involved in the mortgage foreclosure lawsuit.
To have any chance at successfully defending against a mortgage foreclosure, you generally must hire a licensed attorney like Kishner & Miller thereby forcing the mortgage holder to prove its claim
In a mortgage foreclosure action, we force the party claiming to own the mortgage to prove its entire claim against our client and defeat you may have . If the alleged mortgage holder fails to prove its entire claim, it cannot legally obtain a judgment of foreclosure or a monetary judgment against the homeowner. This means we win the lawsuit.
Some common defenses that may be raised that are very often overlooked :
- The Court lacks personal jurisdiction over the homeowner due to improper service of the summons and complaint. Proper application of this defense in a mortgage foreclosure case can delay the foreclosure for up to six months, giving the homeowner a much longer time to improve her financial circumstances enough to negotiate a good settlement of the foreclosure lawsuit or to find other housing.
- The plaintiff lacks legal standing to bring the action.
- The plaintiff does not own the alleged promissory note.
- The plaintiff did not pay fair and adequate consideration for the alleged mortgage and note and plaintiff would be unjustly enriched if plaintiff were to receive the relief requested.
- The amount plaintiff claims to be due on the alleged mortgage and note is incorrect.
- Documents and/or witnesses necessary to prove plaintiff’s claim are unavailable or nonexistent.
- The complaint fails to state a claim upon which relief can be granted.
- Plaintiff’s claims are barred, in whole or in part, by the applicable statutes of limitations.
- Plaintiff’s claims are barred, in whole or in part, by the applicable principles of waiver, ratification, latches and/or estoppel.
- Plaintiff’s claims are barred, in whole or in part, by the doctrine of unclean hands.
- Plaintiff lacks standing because it has no business relationship with the homeowner.
- The alleged lender(s) and mortgage holder(s) violated the Federal Truth In Lending Act.
- The homeowner’s defense is based upon documentary evidence.
- Plaintiff is not the real party in interest.
- The plaintiff is not legally authorized to bring the action.
- Defendant never borrowed any money from plaintiff and does not owe any money to plaintiff.
- Defendant never entered into any contract or agreement with plaintiff to borrow or repay money.
- Defendant never agreed to pay attorneys’ fees to plaintiff under any circumstances, and therefore plaintiff is not entitled to attorneys’ fees in this action.
- Specific defenses to mortgage foreclosure lawsuits:
- The homeowner was not duly notified of the alleged default as required under the alleged note and/or alleged mortgage.
- The plaintiff has not fully complied with all of its duties and obligations under the alleged note and/or alleged mortgage.
- The plaintiff has not fully complied with all preconditions to bringing the instant action.
- The plaintiff does not own the alleged mortgage.
- The alleged mortgage was not duly assigned, transferred or sold to plaintiff.
- The note was not duly assigned, sold or transferred each and every time the mortgage was assigned, sold or conveyed.
- Plaintiff has no recourse to collect any amounts from the homeowner not realized from any future foreclosure sale.
- Plaintiff and/or its predecessors in interest of the alleged mortgage and note failed to respond to the homeowner’s request for validation of the alleged debt despite repeated requests.
- The Statute of Frauds applies to invalidate any and all transfers of the mortgage or note that were not memorialized in writing at the times of the transfers.
- In the event a judgment is entered, the homeowner asserts her right to retain the amount of her homestead exemption as provided by law.
- The alleged owner of the mortgage and/or note did not exist on the date of its alleged transfer of the mortgage and/or note to the plaintiff.
- The documents memorializing the transfer or the mortgage and note to plaintiff were not executed until after the date of commencement of the action. Accordingly, plaintiff lacked standing to bring the action on the date it was commenced.
- Plaintiff’s claims were extinguished as a result of the bankruptcy of the original lender or a subsequent owner of the mortgage and note.
- Defenses to foreclosures of mortgages converted into “mortgage backed securities”:
Our law offices with over a collective 30 years of legal experience will be able to help you successfully defend and potentially defeat a mortgage foreclosure action.