POTENTIAL DEFENSES AND COUNTERCLAIMS TO A FORECLOSURE ACTION

by Melvin Monachan on Feb. 19, 2019

Real Estate Foreclosure Real Estate 

Summary: POTENTIAL DEFENSES AND COUNTERCLAIMS TO A FORECLOSURE ACTION

If you are a New York resident who has been served with a foreclosure lawsuit, you may be feeling afraid, overwhelmed, and hopeless. Depending upon the circumstances which led to the filing of the foreclosure action, however, there may be legal recourse that you can take against the Plaintiff by asserting legal defenses or counterclaims against the entity who is suing you for foreclosure. The legal team at that Law Offices of Melvin Monachan, PLLC is dedicated to helping those who are facing foreclosure fight as hard as they can to keep their home.

POSSIBLE DEFENSES AND COUNTERCLAIMS TO A FORECLOSURE ACTION

Depending on the circumstances leading up to the foreclosure action, your foreclosure defense attorney may be able to assert a variety of legal defenses and counterclaims which could help your case.

POTENTIAL DEFENSES

  • Unclean Hands. The equitable defense of unclean hands essentially states that a Plaintiff must be free from any wrongdoing in order to obtain a remedy from the court through a foreclosure action. If the entity who is bringing the foreclosure action against you acted wrongfully and caused the foreclosure action, the entity is said to have "unclean hands."
  • Breach of Duty of Good Faith and Fair Dealing. Each contract that a person signs carries with it a duty of good faith and fair dealing. Your foreclosure defense attorney may be able to assert that the Plaintiff breached this duty and harmed you in the process, causing the foreclosure to occur.

POTENTIAL COUNTERCLAIMS

In contrast to a legal defense, a counterclaim is a claim made by you against the Plaintiff who has filed a foreclosure action against you. Counterclaims essentially assert that the Plaintiff, who may be a lender, servicer, or mortgage broker, has taken illegal action themselves and should be liable to you for the damages that the improper acts caused.

  • Violations of RESPA. the Real Estate Settlement Procedure Act (RESPA) was enacted to protect consumers who obtain mortgages by requiring certain disclosures to be issued by lenders with regard to the costs of a real estate transaction. If you were not advised of a breakdown of the costs associated with your loan, the lender may have violated RESPA.
  • Misrepresentation or Fraud. This counterclaim is often asserted based on something that happened at the closing of the loan for the property that is in foreclosure. The lender or servicer of your loan may have falsely misrepresented something that you relied upon or may have failed to mention something that is so important that it could be classified as misrepresentation.

FACING FORECLOSURE? DON'T WAIT--CALL TODAY

If you are facing a foreclosure action in New York state, it's critically important to seek the assistance of a competent foreclosure defense attorney as quickly as possible after you have been served. Foreclosure actions are not something which should be tackled on your own--the laws governing foreclosure are complicated, and your ownership of your home is at stake. Don't wait until it is too late to secure the representation you need to defend against your foreclosure action--to speak with Melvin Monachan about your case and come up with a strategy for defending against the action, complete an online contact form or call (347) 714-5763 today.

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