notice of pendency of action NY

[Michael Lauther]

What kind of letter is necessary to make the lender prove they have ther right to forclose?

[Dion DePaoli]

If the lender has filed for foreclosure. They have filed a complaint. Your response to the compliant filed will include an "Affirmative Defense" where as a function of answering the foreclosure complaint you ask for the court to ensure the plaintiff is the current and correct legal owner of the note and mortgage and the amount owed is correct and that no fraud during the origination took place. As described herein, this is done via a lawyer in the court.

If you are just trying to do this without a lawyer you can write your mortgage servicer and ask for proof of ownership of the note. I am not too positive how much traction that will get you. While the defense as a counter-claim in foreclosure is common and a reasonable defense, as the consumer with no lawyer, it is not going to really get you anywhere and if I was to bet most servicers won't respond to your letter in any sort of timely fashion. While you may think a "high five" for the little guy is in order by them not responding, it will not stop them from filing and proceeding with the foreclosure.

The collateral portion of the file which includes the original note, mortgage, title and some other important pieces is typically held with a mortgage bailee in a locked vault and is not held on hand at the mortgage servicer's office or the office of the investor who owns the note and mortgage. This makes getting copies a bit of a hassle and why you as a consumer might just be ignored.

While the public has latched onto the story that if they (lender,etc) do not have the original note you can not be foreclosed on, this is not entirely true. Notes are lost all the time and foreclosure still takes place legally. The lender's attorney usually gets a copy of the full collateral file and if the note is missing they will file for a lost note affidavit. If the affidavit is approved, because they can prove ownership via a purchase contract or alike then copies of the note can be used to complete the foreclosure complaint. It is only when the chain of ownership is broken that the borrower has the chance of winning that type of argument. Tracing back and fixing broken chains of ownership as a investor in notes and mortgages is not that much of a challenge as the public might think.

In today's climate some firms specialize (like ours) in dealing with files with less than adequate paperwork. It is pretty easy as a lender to proceed with foreclosure in most cases.