Tuesday, December 31, 2013

Assignment of Mortgage Procedural Defects in Foreclosure Cases

Question: Sometime last year, a bank, which doesn't own my mortgage and is not servicing my mortgage, filed for foreclosure on my property. A week after, that bank withdrew the foreclosure and nothing has been done since. Yesterday, I was notified that a clerical error was entered on my property description by a company that I believe was hired by that bank. No one ever contacted me about this nor showed me how these changes affect me. I believe that the deed has been separated from the note by this bank that I never dealt with.

Response: Generally, when banks start a foreclosure action and immediately thereafter voluntarily discontinue it, there is a procedural problem that they realize may prevent them from foreclosing on your property. For example, if your loan is owned by the first bank and it was recently sold to the second bank and they have started a foreclosure action in the name of the second bank but the assignment of mortgage (document that transfers ownership of the note and mortgage) is in the name of the first bank, then there is a procedural defect in the case and the Plaintiff would have no standing to sue you because at the time of commencement of the action, the loan was still owned by the first bank. This is just an example. I am not sure exactly what happened that led to discontinuance of the case. Contact an attorney who is experienced in these matters to discuss how your legal position may be affected and what defenses you now have to a new foreclosure action.  Good luck!

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.
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