Is a Mortgage Clause Waiving a Borrower's Statute of Limitations Defense Effective to Waive Such Defense?
Fortunately most mortgage agreements do not contain a provision waiving a borrower's potential statute of limitations defense, but occasionally we do see some mortgages with such clauses. It seems oppressive to require a borrower to waive such a right at the time of the mortgage execution which would obviously occur before any statute of limitations defense would arise. Why is this oppressive, you ask? Although the defense is not typically availing in most foreclosure cases, the defense is the most potent defense that can prevent a mortgage holder from foreclosing against the mortgaged property; therefore, waiving the defense could result in a large loss to the borrower/homeowner assuming of course that the mortgage goes into default. Typically, the mortgage agreement is a one sided agreement in favor of the lender. The waiver could be deemed an "adhesion clause" which essentially means that the borrower possessed no meaningful bargaining power to negotiate the terms of the mortgage which was drafted by the lender and for its own advantage; thus, it would be unfair to deprive the borrower of his/her right to assert such defense. Regrettably, New York Courts do regularly uphold such "oppressive" waivers in a mortgage agreement and even in cases when the borrower is unsophisticated and unable to fully appreciate the significance of waiving such rights. The below case is illustrative of the appellate court's willingness to apply an even more "oppressive" waiver--the waiving of defenses and counterclaims. Seems fundamental that a borrower should be entitled to raise meritorious defenses and counterclaims regardless on the boiler plate language in the mortgage agreement, but it's the terms of the mortgage that control. Although this particular waiver is not a complete bar to raising ALL defenses, the waiver is still problematic for a sympathetic borrower. The case that illustrates the point can be found here:
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Arnold M. Bottalico is an experienced Long Island, NY foreclosure attorney with over 25 years of experience, and he welcomes your questions and comments.