Best Brooklyn Foreclosure Defenses: New York’s Produce the Note Law
Foreclosure Laws In New York Allow For Stronger Brooklyn Foreclosure Defenses
New York law allows for strong Brooklyn foreclosure defenses. Furthermore, state law ensures that the foreclosing party has the correct documents in place. New York law requires that the foreclosing party “produce the note” to prove that it owns the loan.
The law also states they must produce it at the beginning of the foreclosure. In addition, the law also takes steps to reduce the extremely long amount of time that it takes to foreclose in New York.
New laws have also been passed to speed up foreclosure cases. Foreclosure cases no longer take 36-48 months to complete. New York courts have foreclosures passing through the system in less than 6 months.
NYS Foreclosure Process Offers Strong Brooklyn Foreclosure Defenses
New York is a judicial foreclosure state. This means the lender must file a lawsuit against the homeowner in state court. The lender initiates the foreclosure by filing a complaint with the court. The borrower is served with a complaint and summons.
The lender has the Preponderance of Evidence. This means the lender must prove they have a right to bring the action.
New York Law: Banks Must Produce the Note
Yet, many times foreclosure mills forget to do this. This one of the of the many strategies we use for Brooklyn foreclosure defenses.
Promissory Notes and Mortgages
You signed both a mortgage and a promissory note when you closed on your loan. The promissory note is what establishes your liability to pay your mortgage loan. The mortgage creates a lien on the property. Consequently, the holder of the original note is the only party that has the right to enforce the debt by foreclosing on the property.
The lender does not have legal standing to foreclose on your home if it does not hold the original note.
Post-2013 Foreclosure Requirements Aid Brooklyn Foreclosure Defenses
S.4530-A/A.5582-A) passed in 2013 requires that before any new foreclosure action on an owner-occupied residential property, the foreclosure attorney must file copies of the following documents with the court:
- a copy of the note (or the attorney must file a lost note affidavit if the document has been lost or destroyed)
- copy of the mortgage, and
- any modification agreements, and
- all mortgage assignments.
New York Law: Reducing Foreclosure Timelines
New York had one of the longest foreclosure timelines in the country. The average foreclosure averaged around three years. One reason for this is that the foreclosure mill attorney held off on filing a mandatory affirmation after filing the lawsuit. Affirmation is the documents the attorney certifies that the plaintiff is the creditor and is entitled to enforce the rights under the loan documents. In many cases, this also prevented the case from moving forward.
The new law remedies this problem by requiring the foreclosure plaintiff’s attorney to file a “certificate of merit” at the beginning of the foreclosure. As a result, this also enables cases to move to the settlement conference process within 60 days of the filing of the affidavit of service.