New York Homeowners Can Fight Back: Powerful Motion to Dismiss Strategies That Could Save Your Home
Facing foreclosure in New York can feel overwhelming, but homeowners have more legal protections and defense options than they might realize. After service, you may file either an answer to the complaint or a motion requesting dismissal due to meritorious or procedural shortcomings. Motion practice may become necessary at any stage of foreclosure litigation, and understanding these procedural defenses could be the difference between losing your home and successfully challenging the foreclosure action.
Understanding Motion to Dismiss in New York Foreclosure Cases
A motion to dismiss is a powerful legal tool that challenges the fundamental validity of a foreclosure action before it proceeds to trial. In the event of a defective notice the defendant-borrower must generally recognize the need to submit a motion to dismiss the foreclosure action for want of jurisdiction. These motions can result in the complete dismissal of the foreclosure case, giving homeowners a fresh start or additional time to resolve their mortgage issues.
New York’s foreclosure laws provide numerous procedural requirements that lenders must follow precisely. When they fail to meet these requirements, homeowners can file a motion to dismiss based on these procedural defects. Another defense available to homeowners is the violation of procedural requirements by the lender. This includes failing to provide the mandatory 90-day pre-foreclosure notice or neglecting to adhere to the settlement conference protocols.
Key Procedural Defenses Available to New York Homeowners
90-Day Pre-Foreclosure Notice Defense
One of the most common grounds for dismissal involves the mandatory 90-day notice requirement. New York Real Property Actions and Proceedings Law (RPAPL) Section 1304 (4) requires sending notice to the mortgagor at least 90 days before a foreclosure action commences. Section 1304 specifies that the proper form and service of such notice is a “condition precedent to commencing a foreclosure proceeding” in New York. This means that before a lender can file a foreclosure action in the supreme court of the county where the property is located, the lender must send proper notice in accordance with the requirements of the statute.
If the lender fails to send notice in accordance with the requirements of the statute, the supreme court is generally divested of jurisdiction. This creates a powerful defense that can result in complete dismissal of the foreclosure action.
Statute of Limitations Defense
Because a six-year statute of limitations bars foreclosure litigation, one of the first opportunities a foreclosure defense attorney might have to move the court for relief is if the pleadings clearly reveal the litigation as time-barred. New York foreclosure actions count the statute of limitations from the date of the triggering event.
The recent Foreclosure Abuse Prevention Act has strengthened these protections. The voluntary discontinuance of an action, whether by motion, order, stipulation or by notice, shall not waive, postpone, cancel, toll, extend, revive or reset the statute of limitations, unless prescribed by statute. The Act significantly alters a financial institution’s ability to recover under the note or mortgage, particularly with respect to a potentially time-barred debt.
Standing Defense – A Game-Changing Protection
Perhaps the most significant development in New York foreclosure law is the enhanced protection regarding standing defenses. Any objection or defense based on the plaintiff’s lack of standing in a foreclosure proceeding related to a home loan, as defined in paragraph (a) of subdivision six of section thirteen hundred four of this article, shall not be waived if a defendant fails to raise the objection or defense in a responsive pleading or pre-answer motion to dismiss. Now, for “home loans,” defendants can assert the defense of lack of standing at any stage of the foreclosure action even if they did not assert it at the outset in their answer or in a pre-answer motion to dismiss.
This represents a major shift in New York law. With the implementation of section 1302-a, instead of waiving the standing defense in home loan foreclosures, a defendant may assert the defense of lack of standing at any stage of the action. Notably, with the implementation of section 1302-a, instead of waiving the standing defense in home loan foreclosures, a defendant may assert the defense of lack of standing at any stage of the action.
Service of Process Defects
The affirmative defense of lack of service asserts the summons and complaint was improperly served. It can be alleged as a technical defense within twenty days after it is alleged to be served. More often it is raised much later to vacate a default against the homeowner.
Additional Procedural Defenses
New York homeowners have access to several other procedural defenses that can form the basis of a motion to dismiss:
- Lack of Capacity: The affirmative defense of lack of capacity asserts the defendant lacked the ability to enter into the loan agreement at the time it was made
- Failure to Produce Original Note: In the State of New York, the financial institution bringing the foreclosure lawsuit must have the original copy of the note in their hands. The failure of the financial institution to have the note in its hands on the date the foreclosure lawsuit is initiated is a defense to the lawsuit
- Assignment Issues: If there are multiple financial institutions that have been involved in the transaction, a problem in the assignment or transfer of the paperwork and/or properly filing it in the County Clerk’s office, can be a defense against the financial institution who ends up bringing the lawsuit. If there is any link in the chain involving any of the financial institutions or services involved in your mortgage which weren’t properly done, that would give you the basis for an affirmative defense of a bad assignment. If there is a bad assignment, you can make a motion to have the case dismissed
The Importance of Professional Legal Representation
The best foreclosure defense lawyers will use a combination of knowledge about foreclosures and experience in procedural law to allow valid defenses to be heard by the court. When valid defenses are lost or waived due to procedural errors, the effects can be devastating. Making sure that all valid defenses are properly made and preserved comes with having experience foreclosure counsel.
The Law Office of Ronald D. Weiss, P.C., located on Long Island, has been providing expert foreclosure defense services since 1993. Our foreclosure defense gives Suffolk and Nassau County homeowners more time and bargaining power when seeking loan modifications and other mortgage help. We are Long Island foreclosure defense attorneys who specialize in foreclosure solutions by defending homeowners against foreclosure lawsuits. We create customized strategies for each case, handling all legal documents and court proceedings including answers, counterclaims, discovery, and motions to dismiss.
Understanding when and how to file a Foreclosure Motion is crucial for homeowners facing this challenging situation. The firm’s comprehensive approach includes not just defensive strategies, but also exploring negotiation opportunities and alternative solutions.
Timing Is Critical
Timing is important in foreclosure defense since by law the homeowner is given only a short time, 20 to 30 days, depending on the method of service, to respond to a Summons & Complaint with an Answer and/or a Motion to Dismiss, which are formal legal documents, usually prepared by an attorney.
However, certain defenses can be raised even after this initial period. Certain potential defenses and/or counterclaims may be waived if not in the answer. For example, per CPLR 3211(e), a statute of limitations defense may be waived if not asserted in the answer. This makes it essential to work with experienced foreclosure defense attorneys who understand the nuances of New York procedural law.
Take Action to Protect Your Home
New York’s foreclosure laws provide significant protections for homeowners, but these protections are only effective when properly invoked. Six (6) veteran attorneys with many years of combined legal experience. With over 30 legal professionals on our team, we have the resources to handle your important legal matter. Getting initial information and advice is free. Our approach is personalized to your specific situation and goals.
If you’re facing foreclosure in New York, don’t assume you have no options. The procedural defenses available through motions to dismiss can provide powerful tools for challenging foreclosure actions and protecting your home. With the right legal representation, you may be able to stop the foreclosure process entirely or gain valuable time to explore alternative solutions.
Remember, if you are facing foreclosure, time is of the essence. The sooner you take action, the more options you will have to defend your home. Contact experienced foreclosure defense attorneys immediately to discuss your procedural defense options and protect your most valuable asset – your home.