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Don't let the bank get away with it

The best defense is a good offense.

Most people who are facing foreclosure will try to hide from it. If nothing is going on in court, they won’t be doing anything. Like a lot of things, people wait until the last minute to try to fix their problems only to find out that it’s too late.

I’ve seen a lot of questions recently about ten-year-old foreclosure actions, expired notices of pendency, and motions to restore previously dismissed foreclosures. People are rightfully suspicious about this. It’s weird. It shouldn’t take 10 years to complete a foreclosure action. There’s no reason why a plaintiff’s firm wouldn’t renew the notice of pendency before it expired. If an action was dismissed, why would a court restore the case?

This is why you have to get on the offensive. Combing through the questions and answers on Avvo and even asking your own questions will only get you so far. Lawyers who answer questions on sites like Avvo (I’m one of them) can only give you generic answers based on the limited information you provide in your question. If something strange is happening in your case, it’s worth it to pay a lawyer to review your file and tell you what your real options are.

Here’s one scenario: there’s a guy who’s in foreclosure since 2010. He put in an answer pro se back when the action was started, but hasn’t received anything since. Now, in 2018, he received a motion to restore the foreclosure. He decided to try to oppose the motion by hiring a non-lawyer “specialist” to help him write opposition papers, and predictably, he lost. The bank’s foreclosure is back on the docket.

Here’s how it could have gone: the same guy is in foreclosure since 2018. He hires an attorney to answer the complaint. In 2015, the plaintiff finds out that there’s some defect in the foreclosure action, and they discontinue the action. In 2016, after the statute of limitations expires, the guy commences a quiet title action because the mortgage is no longer enforceable. Because the bank doesn’t have its act together, the guy wins and clears his property from the mortgage.

Back to the first scenario, when the bank discontinued its action in 2015, there were things that they needed to do. One of them was to de-accelerate the mortgage. Then, they had to be able to verify who had the original note so that the party who actually had standing to foreclose commenced the action. They needed to be able to establish, by admissible and credible evidence, what entity has standing. It took them until 2018 to get their ducks in a row, but once they got their ducks in a row, they can proceed with the foreclosure.

You have to know that the courts don’t want to give out free houses. It makes people who pay their mortgages angry and jealous. Courts are looking for an excuse to restore a foreclosure action, especially against a person who hasn’t paid their mortgage in 10 years.

On the other hand, the court has to follow the law. If a judge makes a bad decision, there’s a threat that the party who lost takes that judge’s decision up on appeal, and if the decision was really bad, the Appellate Division will reverse the judge. Judges hate to be reversed; it’s embarrassing for them.

A person with an attorney is more likely to appeal a bad decision than a layperson. Lay people don’t know appellate procedure and how to perfect an appeal. Judges know this, so even if you’re right that a bank doesn’t have the right to restore a case that was previously dismissed, you may not have presented it the correct way – in a way that can win on appeal.

Back to courts having to follow the law. If a foreclosure action was dismissed or discontinued, then the loan was not de-accelerated and the action was not restarted within 6 years, you have the right to start a quiet title action. You make out your case and you put the burden on the bank to show that the statute of limitations has not expired. It’s a tough burden to meet. If you do this right, you can clear your mortgage from your property.

When there’s an altercation, the party who calls the police first is usually the one who gets the benefit of the doubt. It’s the same way when you go on the offensive. Taking decisive action at the appropriate time is the difference between winning and losing. You make the choice.

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