In New York, if a borrower executes a promissory note and then subsequently defaults under the terms of the note, the creditor, who holds the note, can sue the borrower for the full amount due under the terms of the note.  

If in addition to the note, the borrower executes a mortgage pledging real estate as security for repayment of the note then if the borrower defaults, the creditor, who holds the note, will decide if it will elect to sue on the note or foreclose against the property.  If the creditor chooses to foreclose and is successful in bringing the property to auction then assuming that the property is worth less than what is owed under the note, the creditor can seek a deficiency judgment against the borrower for the difference between the fair market value of the property and the amount owed under the note. 

A deficiency judgment can result in the creditor filing restraining notices against the borrower's bank accounts, executing on other assets and garnishing a percentage of the borrower's employment income.  

There are ways to minimize the chances of being personally liable for a judgment and and consulting with an experienced attorney can potentially save a judgment debtor from the wrath of a judgment creditor.   

The New York State Court of Appeals decided in Aurora Loan Services, LLC v. Taylor that a foreclosing plaintiff only needs to show that it has possession of the note at the time the foreclosure complaint is filed.  Thus, if the foreclosing Plaintiff has possession of the note, the mere fact that it does not have an assignment of mortgage is essentially meaningless.  The mortgage is merely incidental to the promissory note and the mortgage naturally follows the note; hence, whoever has possession of the promissory note will be entitled to foreclose even if an assignment of mortgage is in a different entity.  

Notwithstanding, the promissory note secured by a mortgage is a negotiable instrument and is governed by the Uniform Commercial Code (UCC).

UCC 3-202[1] provides: [n]egotiation is the transfer of an instrument in such form that the transferee becomes a holder.  If the instrument is payable to order it is negotiated by delivery with any necessary indorsement; if payable to bearer it is negotiated by delivery (emphasis added). 

Based on this requirement that the note be physically delivered, the foreclosing plaintiff must demonstrate that the subject note was physically delivered, and it will do this by typically submitting an affidavit by someone with knowledge attesting to the circumstances surrounding the delivery of the note. If the affidavit is not thorough enough then it may not serve as sufficient evidence to support the claim of possession and or delivery. 

Typically, the note is transferred more than once and the foreclosing plaintiff will usually provide allonges to prove the chain of ownership.  There are many technical issues that come into play with allonges, and if the foreclosing plaintiff is not careful, the action could be dismissed for lack of standing. 

Always seek out the advice of an experienced foreclosure attorney before it's too late! 





    

Recently, one of my clients advised that she was contacted by someone claiming to be a bank servicing representative with the mortgage company servicing her loan and further claimed that the bank was offering a modification and requested that my client immediately tender the new mortgage payment. My client was excited to hear this especially since the "new mortgage payment" was less than what she was previously paying. Unfortunately for my client, her excitement got the best of her and after she sent in the check which was quickly cashed, she realized that she had been taken advantaged of since the "servicing representative" had disappeared as quickly as she cashed my client's check.  There are other types of scams to be on the outlook for, such as, an offer made by an alleged bank representative who states that the bank is going to "write off" the loan if you send in one lump sum payment. It is very tempting to think that the bank will write off the loan for pennies on the dollar, and in rare situations banks have been known to do this, but it is unlikely and before you rush to send out a check to make your mortgage obligation go away, think again and make sure you investigate to see if it's the real deal. Don't be fooled by any scam. This is another reason to entrust your foreclosure matter in the hands of an experienced foreclosure attorney who can minimize this kind of risk while at the same time fighting the foreclosure action. 

In New York, a mortgage is a contract between the bank, as mortgagee and the homeowner/borrower, as mortgagor. The promissory note is also a contract as well as a personal guarantee by the person receiving the funds, the borrower/obligor. The mortgage is an agreement whereby the obligor permits the real property to be used as security for the repayment of the promissory note. If there is a default under the terms of the note and or mortgage, say for example nonpayment, then the bank can elect to sue on the note or instead, elect to foreclose on the real property securing the note. This is called an "election of remedies". Thus, the bank, as mortgagee, could elect to commence a mortgage foreclosure action, or commence an action on the promissory note. The bank can only choose one of the two remedies; therefore, if the bank commences a foreclosure action, it cannot later commence an action on the note and vice versa. 

In New York, the promissory note and mortgage are contracts and the six-year statute of limitations is applicable. There is much confusion as to how the six-year statute of limitations applies in mortgage foreclosure cases. In order to know how to apply the statute, we need to know if the loan was accelerated or not.  Acceleration occurs when the bank declares the entire loan balance immediately due and payable. Once the loan is accelerated, the bank has six years to sue and failure to commence an action within the six year time period may result in a bar to recovery.  If, however, during the six year period the borrower or his/her spouse filed for bankruptcy, the statute of limitations would be tolled, meaning stayed during the bankruptcy along with an additional time period tacked on in favor of the bank. Additionally, if the borrower filed for mortgage assistance during the six year period, the bank may assert that the borrower reaffirmed the debt and that the six year statute of limitations should run from the date of reaffirmation, i.e., the date the mortgage assistance application was made.

If, however, the bank did not accelerate the loan but has merely demanded that the borrower pay the loan arrears (missed payments and/or escrow charges, late fees, etc.), then each month that goes by is deemed a continuous loan default.  Under this scenario, if the bank waited longer than six years from the date of the first default to commence its foreclosure, the bank would still be able to foreclose since in this situation the six-year statute of limitations applies only to missed payments that accrued more than six years. Since the loan balance was never accelerated, the bank can still foreclose and demand payment for the unpaid principal balance and all charges that accrued less than six years prior to filing the action. It is therefore likely that banks will decide not to accelerate their loan balances until they commence suit. If the bank does commence suit more than six years after the first missed payment, it only forfeits missed mortgage payments and charges that accrued more than six years. As discussed above, if the bank declared the entire loan due and payable (acceleration) then the bank MUST commence suit within the six years, unless of course the statute was tolled by a bankruptcy filing. 

Additionally, if an action is timely commenced, but later dismissed before trial and at time of dismissal, the statute of limitations has expired or has less than six-months remaining then the aggrieved party, the bank, would be permitted an extension of six months from the date of dismissal to re-file the same action and serve process on the homeowner. Thus, just because the action was dismissed prior to a trial and at a time when the statute of limitations had expired does not necessarily bar the bank from commencing a new action. However, there are exceptions to this rule: the dismissal was on the merits or dismissal was due to the voluntary discontinuance by the bank, or the dismissal was based on the bank's failure to prosecute. See CPLR Section 205 (a). The attached link below will upload this section: http://codes.lp.findlaw.com/nycode/CVP/2/205

So, let’s assume the bank accelerated the loan three years prior to commencing foreclosure and the action has been inactive in court for another three years. If the borrower's attorney is able to have the action dismissed on the merits of the case then the bank may be barred from commencing a new foreclosure since the six year statute of limitations would apply.  "On the merits" generally refers to substantive issues as opposed to procedural issues.  For example, if an action is dismissed because the court determined that the homeowner was not properly served, this would not be deemed a trial on the merits of the case, and the bank would be permitted to recommence the same action within six months from the date of dismissal so long as it served process on the homeowner within that time period. If, however, the action was dismissed due to lack of standing then this would be on the merits, and the bank may be prohibited from refiling a new action so long as the borrower raises the statute of limitations defense in the answer. 

Additionally, if the mortgage maturity date has passed, then the bank has six years from the maturity date to sue.  This is not something we see often since most mortgages have a maturity date greater than 15 yrs, but it is something to consider. 

Ultimately, the issues involving the statute of limitations in mortgage foreclosure actions are very complex and should only be handled by an experienced attorney.

 

Some homeowners who have successfully modified their mortgage may decide later on to transfer property to another family member, such as a son or a daughter for estate purposes. Any transfer, even if merely a transfer of a part interest may trigger a due on sale/transfer clause in the modified mortgage which would mean that as soon as the property has been transferred, the bank can declare that the entire unpaid balance is immediately due and payable.  For example, if you own the mortgaged house outright and decide to convey to your grandchild or perhaps decide to convey the house to your sibling then you may be unwittingly triggering the due on sale/transfer provision in the mortgage and the bank can demand that you pay the unpaid balance.  However, the due on sale/transfer clause is preempted by the Garn-St. Germain Depository Act of 1982 (see U.S. Code section 1701j-3(d)). The act specifically provides that due on sale/transfer provisions are not enforceable under the following situations:

(1) the creation of a lien or other encumbrance subordinate to the lender’s security instrument which does not relate to a transfer of rights of occupancy in the property;
(2) the creation of a purchase money security interest for household appliances;
(3) a transfer by devise, descent, or operation of law on the death of a joint tenant or tenant by the entirety;
(4) the granting of a leasehold interest of three years or less not containing an option to purchase;
(5) a transfer to a relative resulting from the death of a borrower;
(6) a transfer where the spouse or children of the borrower become an owner of the property;
(7) a transfer resulting from a decree of a dissolution of marriage, legal separation agreement, or from an incidental property settlement agreement, by which the spouse of the borrower becomes an owner of the property;
(8) a transfer into an inter vivos trust in which the borrower is and remains a beneficiary and which does not relate to a transfer of rights of occupancy in the property; or
(9) any other transfer or disposition described in regulations prescribed by the Federal Home Loan Bank Board.

Based on the aforementioned situations, the examples I gave above where the owner conveys the mortgaged property to a grandchild or to a sibling may not be protected under the act.  

Before making any transfer of mortgaged property, speak to an attorney who specializes in mortgage litigation.  
 

A process server must always comply with the service of process rules as contained in section 308 of the CPLR (Civil Practice Law and Rules). Generally, a process server will serve a homeowner as a named defendant in a foreclosure summons and complaint by way of three means: 1. In hand delivery (the preferred choice), 2. substituted service on a person of suitable age and discretion (a person residing with you) or 3. nail and mail (the least preferred choice of the three). There are other less common methods of service which I will not discuss for purposes of simplicity. Each of the three methods of service mentioned require the process server to file an affidavit of service with the county clerk's office. Nail and mail service generally means that the process server tried to serve you or someone of suitable age and discretion at the property where your reside, but was unable. The standard generally requires that if the process server cannot effectuate in hand service or substituted service after three attempts, usually on three separate days and at various and reasonable times of day and/or evenings, then the process server can serve you utilizing the nail and mail method of service. This essentially means that if the process server made three reasonable attempts at serving you, but was unsuccessful then s/he can tape the foreclosure summons and complaint to your front door or leave it somewhere conspicuous near the door and within 20 days s/he must mail an additional copy of the foreclosure summons and complaint to your residence. The envelope containing the foreclosure summons and complaint must not indicate it is from an attorney's office and only indicate "personal and confidential" on it. The process server must then file the affidavit of service within another 20 days from the date of mailing. In your case, it appears that the process server may have chose the nail and mail approach, but I can't be sure until the affidavit of service is reviewed. If the affidavit of service indicates that the summons and complaint were served personally on you, via in hand delivery or via substituted service on someone residing with you, then it would appear that the service may be what is commonly referred to as "sewer service". If this is the case then you would be able to contest the service.  An experienced New York foreclosure attorney can review your service and provide guidance on the best way to proceed. Call my office, and I will be happy to provide you with a free consultation. Best regards, Arnold M. Bottalico, Esq.

Many times when a homeowner is granted a loan modification on the first mortgage, there may be a second mortgage or home equity loan that remains in default. The big question is what to do about this second mortgage? Typically the second mortgage has been in default for sometime and there is a resulting arrears. Many times when the first mortgage company agrees to modify, it usually will require the homeowner to start making trial payments soon thereafter so there is not much time to get the second modified. Notwithstanding, the second mortgage company typically will only modify after the first mortgage is modified anyway. Usually then the homeowner will start the trial period with the hope that the second will modify its mortgage favorably to the homeowner. If, however, the newly modified mortgage payment on the first mortgage combined with ordinary household expenses consumes most of the homeowner's monthly income then there may be nothing left over for the second mortgage, making a modification of the second mortgage unlikely. If the second mortgage company is unwilling to settle for much less than what is owed it then the second mortgage may just hang in limbo with its arrears increasing by the day--an unsettling feeling to any homeowner. However, under this situation, the second mortgage company probably won't foreclose if the first mortgage is owed an amount near the value of the house, but if the amount owed on the first mortgage is significantly less than the value of the house then the second mortgage company would need to seriously consider its right to foreclose on its second mortgage. 

It is worth mentioning that if the amount owed on the first mortgage exceeds the value of the property, the homeowner may have the ability in bankruptcy to have the second mortgage lien stripped off the property. This is the case in the 11th Circuit, but as of now, it is not the case in New York, well at least not in the Eastern District of New York.

I do not believe that NY has a "wrongful foreclosure" defense per se; however, if the bank has commenced a wrongful foreclosure in a New York court, then you will need to give specifics as to why you believe the foreclosure is wrongful. The facts supporting a wrongful foreclosure are case sensitive. For example, if the bank knowingly or negligently claimed to be the owner of the mortgage when it really wasn't, then one could assert that the bank's actions are wrongful and unconscionable; this defense must be raised or it will be lost. This would not only be a defense but could serve additionally as a counterclaim which would serve as a basis for damages. But again, they must be raised in the answer or be lost. There are some exceptions to this general rule, like if you could not have learned of the bank's wrongful conduct at the time the answer was due. In such cases, you would have to raise the defense and or counterclaim via motion soon after you discovered the wrongful conduct. 

BTW, defenses that are not waived in New York even though not raised in the answer are: the defense asserting that the complaint fails to state a cause of action, failure to name a necessary party defendant, the defense that the court lacks subject matter jurisdiction, and RPAPL 1303/1304 notice requirements---these defenses even though not raised in the formal answer can still be raised later in the litigation, but generally must be raised before judgment with the exception of the court lacks subject matter jurisdiction defense, which defense can be raised anytime even after judgment. In the above example, even if the defense of standing was not timely raised in the answer, one may still be able to argue later in the litigation that the bank's complaint fails to state a cause of action based on the fact that the bank's cause of action cannot be satisfied if it is not the holder of the subject note and mortgage.  

Question:

My neighbor is moving off Long Island, NY and wants me to acknowledge that his fence is 1 ft over the property line.  Should I sign anything stating that 1 ft beyond the fence belongs to my neighbor?

Answer:

When I handle these type of cases, I will usually get a copy of the client's survey and a copy of his/her neighbor's survey along with copies of the deeds to both properties. I then review these documents against each other for discrepancies. If there are discrepancies then that opens up a whole set of issues for a later discussion. If we are dealing with property on Long Island, then it is likely that the property lots are on a subdivision map and more likely than not there is no real boundary dispute. It may just be a fence that is not properly placed on the record boundary line and the surveys may show this assuming the fence in its current location existed at the time the survey(s) were commissioned. Sometimes neighbors will agree that if the fence does encroach onto adjoining property then the fence can remain so long as it is standing and when it is replaced the new fence will be installed on the record line. This would likely apply in your situation. If, however, your neighbor wants you to acknowledge that the property line is to be where his fence is then that could be problematic. Signing a boundary agreement could potentially result in serious zoning law issues. Also, if there is a mortgage on your property, signing a boundary agreement with your neighbor could create issues with the bank. Lastly, depending on the circumstances, your neighbor may have a basis to assert adverse possession. I recommend that you speak with an attorney experienced in real estate litigation. My firm handles these situations, and I would be happy to help you. 

Pursuant to discovery demands, Wells Fargo released an internal foreclosure manual that may suggest improper internal procedures. See the following link: http://nypost.com/2014/03/12/wells-fargo-made-up-on-demand-foreclosure-papers-plan-court-filing-charges/

The discovery process is a vital step in defending against a foreclosure action, and it must be done with great care. 

Generally, if the bank never recorded the mortgage then the bank has an unsecured loan and it can potentially lose its priority over other liens if it does not do anything to protect its interest. If the bank has a duplicate original mortgage then it can record it in the land records where the property in located and it will have a secured mortgage as of the date it was recorded. If it does not have a duplicate original mortgage then it will need to commence a lawsuit seeking to confirm the mortgage. If the borrower received the loan proceeds at closing, then it is likely the bank will obtain the relief it is seeking. However, sometimes the homeowner has defenses that can prevent the bank from obtaining the relief it is seeking. If there are defenses, then they need to be raised otherwise they will be lost. It is best to consult with an experienced attorney to make sure there are no valid defenses before a decision is made to not answer the complaint.

Q: I just was served with a summons in a foreclosure action.  It says I have 20 days to answer.  Should I ignore it?



A: By no means ignore it; you need to respond as soon as possible and if not you run the risk of being in default. Your house can be taken from you by the bank.  You may have very good defenses and you need to consult with an experienced Attorney to ensure that your rights are fully protected.