Foreclosure is a drastic remedy, but it is one that lenders frequently pursue when a borrower has defaulted on their mortgage. Although it may seem like the bank has an unlimited ability to take your home, it is not the case. In Bayside, as in the entire state of New York, foreclosure is a judicial process, meaning that the lender needs to go through the court system before they can take your home.
Anything that goes through the court system means you are entitled to due process, which is the right to be heard. You can present one or more of a number of defenses in an attempt to keep your home. You need a foreclosure defense attorney on your case immediately.
Your first foreclosure defense option can be attempting to work with the lender in an attempt to keep them from initiating the process in the first place. A foreclosure lawyer can negotiate with the lender with a strategy to either modify the terms of your loan or allow you more time to get current on your mortgage payments.
Although lenders are not required to work with you, they may be willing to do so under certain circumstances, especially when they may suffer their own financial loss on taking your home. It never hurts to at least attempt to speak to your lender about your situation in the hopes of avoiding foreclosure, and you always have a better chance of success when you approach them with a foreclosure lawyer. The lender cannot say no to speaking with you – it is your right under New York State law.
When it comes to fighting the foreclosure in court, your defense options will break down into two broad general categories:
It is important to remember that lenders and mortgage servicers do make mistakes from time to time. They own scores of mortgages just like yours, and they may not pay the required amount of attention to each one. They can make errors in the foreclosure process. New York has very strict laws about the process that the lender must use to handle the foreclosure, and the lender must follow it exactly before they can take your home. Any procedural mistake can defeat their attempts at foreclosure.
One common example of a procedural mistake is when the lender does not give you the proper amount of notice before the foreclosure. Under New York law, the lender must send you a 90-day pre-foreclosure notice before they begin the process. The lender may fail to give you this notice in the proper amount of time, which can be a fatal mistake in the process. The actual information in this notice can also be incorrect.
New York law also requires mandatory loss mitigation consultations between you and your lender before they can foreclose on your property. Your lender must negotiate with you about potential options to avoid foreclosure, and they must do so in good faith. However, good faith does not mean that your lender must accept any option that you propose. Nonetheless, there is a clear process that the lender must follow at these loss mitigation conferences, and the failure to do so can mean that the lender cannot foreclose on your property.
Even if you are able to defeat foreclosure on procedural grounds, you can still be faced with the situation that you owe money on your mortgage and you are in default on your loan. Your foreclosure attorney can continue to negotiate on your behalf with the goal of getting you the time and breathing room to get out of default on your loan. In some cases, your lawyer can achieve modifications of the terms of your loan through skilled negotiation.
You may also attempt to defend against the foreclosure on the grounds that the lender does not have the legal right to take your property from you. They may have tried to initiate foreclosure when you were not actually in default on the terms of your mortgage because they simply wanted to take your property. Lenders may have a financial incentive to foreclose because it can actually increase their own profits.
Violations of the Truth in Lending Act are also substantive grounds. The terms that your lender offered you when you took out the loan in the first place may have been in violation of federal law. Typically, the bank may have engaged in predatory lending practices that could have included charging you exorbitant fees or failing to disclose the key terms of the loan that you needed to know before you borrowed the money.
They may have used aggressive and high-pressure sales tactics to get you to take out a mortgage on highly disadvantageous terms. New York also has its own laws that regulate mortgages, and violations of these statutes can also be grounds for preventing a foreclosure.
You can only present defenses to a foreclosure if you respond when you receive notice of the proceedings. Otherwise, you can lose the right to contest the foreclosure because the lender will obtain a default ruling against you. Thus, if you receive a notice that the lender intends to initiate proceedings in your case, it is vital that you contact a foreclosure lawyer as soon as possible to both engage with the bank on your behalf and determine whether you have any defenses to foreclosure.
Attorney Ariel Poltielov works with consumers who are facing foreclosure. He can help you evaluate your legal options and take all necessary steps to protect your rights. You can schedule a free and confidential initial consultation. You can speak to a foreclosure attorney by visiting our website, or calling us today at (718) 520-0085.
