New York Foreclosure Defense Lawyers: Legal Strategies For Long-Term Success
Last updated on April 25, 2025
Foreclosure can be one of the most intimidating and overwhelming lawsuits that people find themselves facing. Legal assistance is often needed to successfully navigate the process. Fadullon Dizon Krul LLP, has offices in Jericho and Woodside, and its real estate lawyers help clients in the Bronx and throughout New York defend against foreclosure lawsuits. If you need a Queens foreclosure defense attorney, they can help.
Judicial Foreclosure In The State Of New York
The events of the last several years have been harsh for many, resulting in several reasons that payments on a mortgage might be behind. In order for a bank or lender to initiate foreclosure in New York, state law requires judicial foreclosure. In other words, when a homeowner or business has stopped making payments on a loan, the lender or bank has to go to court before it can foreclose on and seize the home or property.
Crafting A Successful Foreclosure Defense
Because the bank has to go to court in order to go forward with a mortgage foreclosure, the homeowner borrower has the opportunity and right to contest the foreclosure. In addition, the actions of mortgage and lending institutions are highly regulated by state and federal laws. The first step to preparing a successful foreclosure defense is examining several important documents to identify any possible errors or mistakes, including:
- An error in crediting your mortgage payments
- Unlawful or excessive fees
- An error in reporting the amount owed on the mortgage
- A failure to provide proper notice if the lender transferred your mortgage
- A mistake in filing or serving the action to foreclose on your mortgage
In addition, if you are a member of the armed services on active military duty, you may have special protections against mortgage foreclosure.
Common Defenses To Foreclosure
Homeowners facing foreclosure in New York can work with a foreclosure defense lawyers to challenge foreclosure proceedings, potentially saving their home or delaying the process to provide more time to explore alternatives. Below are examples of defenses Fadullon Dizon Krul LLP uses to combat foreclosure. They tailor their approach to fit the situation, offering a potential lifeline to those facing foreclosure:
Lack Of Standing
This defense argues that the party initiating the foreclosure has no legal right to do so because they do not own, or cannot legally prove that they own, the debt associated with the loan. This can occur when the lender sells the mortgage or assigns it to multiple parties, making it unclear who has the authority to foreclose. In complex financial markets, mortgages are often bundled and sold as securities, leading to confusion about ownership.
A skilled foreclosure defense attorney can investigate the chain of title and challenge the foreclosing party’s standing if the documentation has gaps or irregularities. This defense could halt the foreclosure process or even lead to its dismissal if the plaintiff cannot prove their right to foreclose.
Improper Service
The court may dismiss the foreclosure action if the bank’s foreclosure documents were not properly served to the homeowner when commencing a lawsuit. This can include situations where the server did not deliver documents to the correct address or where other requirement in New York law were not strictly followed. Proper service is a crucial aspect of due process, ensuring that homeowners are aware of legal actions against them and can respond.
Improper service can take various forms such as serving documents to the wrong person, leaving them at an incorrect address or failing to make reasonable attempts to locate the homeowner. If the New York homeowner can prove improper service, it may result in a significant delay in the foreclosure process or even require the lender to start the process again, giving the homeowner valuable time to explore alternatives or negotiate with the lender.
Violations Of The Truth In Lending Act (TILA)
If the lender fails to comply with TILA, which requires them to disclose certain information to borrowers, the homeowner may be able to argue that the loan is invalid. TILA is a federal law designed to protect consumers by promoting the informed use of consumer credit. It requires lenders to provide clear and accurate disclosures about the terms and costs associated with the loan, including the annual percentage rate (APR), finance charges and total amount financed.
If a lender fails to provide these disclosures or provides inaccurate information, it may violate TILA. In some cases, TILA violations can lead to the right of rescission, allowing the borrower to cancel the loan within a specific time frame. Even if the rescission period has passed, TILA violations can still be used as a defense in foreclosure proceedings, potentially invalidating the loan or forcing the lender to correct the violations.
Predatory Lending
Homeowners who were victims of predatory lending practices, such as excessive fees or interest rates, may be able to argue that the loan is unenforceable. Predatory lending encompasses a wide range of unfair, deceptive or fraudulent practices employed by some lenders to entice borrowers into accepting unfavorable loan terms. These practices can include charging exorbitant interest rates, imposing excessive fees, pressuring borrowers to accept loans they can’t afford or deliberately misleading borrowers about the loan terms.
In some cases, predatory lenders may target vulnerable populations such as older people or those with limited financial literacy. If a homeowner can demonstrate that they were a victim of predatory lending, it may be possible to have the loan terms modified or even declared void. This defense protects individual homeowners and serves as a deterrent against unethical lending practices in the broader market.
Statute Of Limitations
In some cases, the statute of limitations may have expired, making it too late for the lender to initiate foreclosure proceedings. The statute of limitations is a legal time limit for a lender to file a foreclosure action. In New York, the statute of limitations for foreclosure is generally six years from the date of default or the date of acceleration of the loan. However, determining the exact start date of this period can be complex, especially if there have been partial payments or loan modifications.
If a homeowner can successfully argue that the statute of limitations has expired, it can result in the dismissal of the foreclosure action and potentially bar the lender from future attempts to foreclose on the property. It is also true that, in certain circumstances, the homeowner may be able to successfully argue that part of the debt allegedly owed cannot be collected due to the expiration of the statute of limitations on that portion of the debt.
The Lender’s Or Loan Servicer’s Failure To Comply With The Terms Of The Loan Documents
Homeowners who believe that the lender has breached the terms of the loan contract may be able to argue that the foreclosure is invalid. This defense involves carefully examining the mortgage agreement and the lender’s actions to identify any violations of the contract terms. Common breaches or violations by lenders can include failing to appropriately credit payments, charging unauthorized fees or not following agreed-upon procedures for handling defaults or modifications.
For example, if the loan agreement specifies specific steps the lender must take before initiating foreclosure (such as providing notice of default and an opportunity to cure) and the lender fails to follow these steps, it could require dismissal of the foreclosure lawsuit against you. Similarly, if the lender agreed to a loan modification but proceeded with foreclosure without honoring the modified terms, this could also be considered a breach. Successfully proving a breach of contract by the lender can potentially stop the foreclosure process or provide grounds for litigation against the lender.
Settlement Or Modification
In some cases, homeowners can negotiate a settlement or loan modification with the lender, avoiding foreclosure altogether. While not strictly a legal defense, this approach can effectively resolve a foreclosure situation. Loan modifications can take various forms such as reducing the interest rate, extending the loan term or forgiving a portion of the principal.
Settlements might involve agreements, including a short payoff of the debt and cancelation of some of the debt, a short sale, or a deed in place of foreclosure. The key to successful negotiations often lies in demonstrating to the lender that a modification or settlement is in their best interest financially. It involves showing that the costs of foreclosure and potential property management exceed the losses from modifying the loan. Homeowners pursuing this option should be prepared to provide detailed financial information. They may benefit from the assistance of a foreclosure defense attorney who can help navigate the negotiation process and ensure that any agreement reached is fair and legally binding.
Fadullon Dizon Krul LLP applies these and other strategies when challenging foreclosure. Homeowners in Manhattan, Brooklyn, Queens, the Bronx, and Staten Island, as well as Nassau and Suffolk Counties, can count on the firm’s foreclosure defense lawyers to mount an effective defense. Contact us today.
Think-Tank Solutions For Complicated Foreclosure Actions
The real estate attorneys at Fadullon Dizon Krul LLP, have created a think-tank environment and offer their clients multiple strategies and multifaceted legal solutions. By taking a holistic approach to every case, their foreclosure defense and commercial conflict or litigation strategies go above and beyond solving the immediate issues to also generate long-term solutions. In other words, if you are facing mortgage foreclosure, the firm’s attorneys will not only work to help you defend this action, but also try to keep it from happening again.
Call Today For A Free Consultation
The attorneys at Fadullon Dizon Krul LLP, regularly help clients who are facing mortgage foreclosure, and if you are in the same situation, they want to help you too. They offer free consultations so they can better explain how they can help you with your particular case. Call 347-967-4087 today or reach out using the online form to schedule your free appointment today.