Lack of legal standing defense in the assignment of mortgage cases

Question: We have been issued a summons and complaint in a foreclosure process from our mortgage servicer. We have been in the process of loan modification on our mortgage for approximately two years (and paying as requested). The mortgage servicer would periodically update us, letting us know that all is proceeding well and our loan would be modified within weeks, and then restart the whole process from scratch all over again. They have dragged their feet for reasons unknown to us, while telling us that we are doing everything expected of us. When we got the summons and complaint notice, we realized that it is not from the mortgage servicer but from the bank. We have always only dealt directly with mortgage servicer and not the bank. We have factual evidence that proves that we have been defrauded and that the bank has no legal standing in this matter. We have assembled documents in response and are alleging that the bank doesn’t legally own the debt or mortgage. Is there a specific process that we need to follow to get the foreclosure dismissed?

Response: First things first, you must answer the complaint. In your answer, you should definitely use the defense of lack of standing (along with other defenses if they exist). But you would also have to bring a Motion to Dismiss based on lack of standing and then it would be in the court’s discretion to determine whether your case is dismissible or not. It is a common practice for banks to do an assignment of mortgage, which would explain why another lender is suing you. It is a rather sensitive topic for banks today (as a lot of mortgage assignments were defectively executed) and your suing bank would thus have to prove their ownership of the note in order to proceed in their action. Also, whoever is servicing the loan is generally not the owner of the note. It is the servicer’s duty to collect the owed debt for the owner of the note. Please do your research accordingly. You may want to contact a knowledgeable attorney who could help you with foreclosure defense.

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. Copyright © 2013 Law Office of Svetlana Kaplun, P.C.

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