Tuesday, July 21, 2020

Foreclosure Tsunami Coming - Litigation Checklist

The moratorium on foreclosures expires on August 20th (EO 202.28) and a foreclosure tsunami is coming.

According to CNBC, "32% of U.S. households missed their July housing payments" based on a survey by Apartment List, which also advises that 17% of "homeowners [are] concerned about foreclosure."

To prepare for the tsunami, we are giving you our 10-Point Inspection Checklist to evaluate a foreclosure case. Whether we are representing the lender or the borrower, we utilize this list to evaluate the strength of the case, which, when coupled with an evaluation of the borrower's current mortgage terms (i.e., L/V ratio front end/back end, interest rate, principal, interest to date, penalties, attorneys' fees, months of missed payments, prior modifications/forbearances, etc.) is how we assess whether a modification, or other workout, should be considered.

10 Point Inspection Checklist:

  1. Standing of plaintiff (owner / holder of note on date of commencement or authorized agent of such owner / holder pursuant to Pooling and Servicing Agreement or other agreement)
  2. Record admissibility (swearing to business records of another entity; failure to attach business records to affidavits)
  3. RPAPL 1303 / 1304 / 1305 / 1306 compliance
  4. Acceleration / Deacceleration (statute of limitations) 
  5. Notices tendered in satisfaction of note terms
  6. Lis Pendens filing
  7. Payment history for default calculations / date (requisite missed months for default requirement in note / aligned with notices / statute of limitations)
  8. Default on Answer with time since settlement conference for late answer availability
  9. Service / personal jurisdiction issues
  10. Pleadings requirements (Certificate of Merit - CPLR 3012-B, RPAPL 1302)

In our upcoming Real Estate Investing shows, WRCN / FM 103.9 / Sundays at Noon, we will be breaking down this list into plain English and showing you how to litigate foreclosure cases whether you are the lender or the borrower.