Of the millions of people in the United States facing foreclosure of their homes each year, few hire an attorney to defend them, assuming 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.
To illustrate how difficult it can be for an alleged mortgage holder to foreclose on a home in New York, we will describe our overall approach to defending clients against mortgage foreclosures. Our strategy for defeating foreclosure actions, part of our overall approach to Debt Inversion, 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.
The following information is for illustrative purposes only and not intended to substitute for the advice of a licensed attorney. To have any chance at successfully defending against a mortgage foreclosure, you generally must hire a licensed attorney.
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 any defense we raise (see below). 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.
For more information on how we force debt collectors and creditors to prove their claims against our clients, please see the Debt Inversion section of our website.
Defenses Against Mortgage Foreclosure Lawsuits
In this section we list some defenses that we use to defend our clients in mortgage foreclosure lawsuits. We have not attempted to translate the legal terminology into plain English or to explain the legal concepts behind each defense, because it would double or triple the length of this section. The point we wish to make is that many excellent defenses are available, but they are complicated and should only be used by a licensed New York State attorney who understands them completely.
General defenses that may apply to any debt collection lawsuit including a mortgage foreclosure:
Specific defenses to mortgage foreclosure lawsuits:
Defenses to foreclosures of mortgages converted into “mortgage backed securities”:
The defenses listed below may apply in the case of a mortgage for which the stream of mortgage payments have been sliced and diced into “mortgage backed securities” bought by investors. The mortgage backed securities are held in a legal trust that collects payments from homeowners and distributes the income to investors in the mortgage backed securities.
At least that’s how it was supposed to work.
The conversion of ordinary mortgages into mortgage backed securities was the primary cause of the real estate market crash that led to massive bank failures and the current recession.
However, fortunately for homeowners facing foreclosure, the slicing and dicing of ordinary mortgages into mortgage backed securities makes it difficult for any one party to foreclose on the entire mortgage.
The plaintiff in a case involving mortgage backed securities is the trustee for the legal trust that administers the mortgage backed securities created from the original mortgage.
Counterclaims against the mortgage holder, and claims against parties not yet involved in the lawsuit (third-party claims):
The counterclaims and third-party claims available in a mortgage foreclosure action are generally the same as in other debt collection actions. Rather then repeat all of them here, we ask that you refer to the following sections of the Debt Inversion website for ideas on lawsuits that your attorney might bring against the alleged mortgage holder (counterclaims) or another party not yet involved in the case such as a process server (third-party claims).
Lawsuits for illegal debt collection
Lawsuits for debt collection crimes
Lawsuits for illegal credit reporting
LENOIR LAW FIRM, PLLC
2585 Broadway, Suite 251
New York, NY 10025
Important information: This website and blog are legal advertising. They contain no legal advice and make no representation as to the outcome of any legal matter. The information on this website and blog may not apply to your individual situation and should not be relied upon for any purpose. If you have a legal question or need legal assistance, please consult with an attorney.