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I am responding to a foreclosure summons and want advice on what affirmative defense to claim?

Walton, NY |

I am currently in default on my mortgage. I can pay the arrears but that won't stop the foreclosure process. The mortgage is not in my name, I do not hold the note. The person who does has died. I am named on the summons because I was granted "life tenant" on a revised deed to the property.The loan was a Fannie Mae through a bank. I most likely qualify for affordable home modification but can't get anywhere with any government agencies because the loan is not in my name. I need to file my answer to the summons as soon as possible. I plan on doing this Pro se, as I can't afford the retainer for a lawyer at this time. I do not want to lose my home and need advice quickly

Attorney Answers 3


  1. There are too many complications in this for a simple answer. I would strongly advise you to get yourself a competent attorney knowledgeable in this area. There are many legal services organizations that might be helpful - I would try locating and talking to them first. You can hurt yourself very badly by attempting a DIY in this - too much is at stake. Good luck!

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  2. If you have the money to pay the arrears, you have the money to hire an attorney. The surest way to ensure that you lose the home is to handle this yourself. There is a lot to be done including having a person representative appointed for the individual on the note. If you do not know what affirmative defenses to raise, you are ill equipped to handle this action yourself. Rethink your plans.


  3. You likely need to better understand the exact nature of the foreclosure complaint and the promissory note and assignment of mortgage attached to the complaint. The key is quickly determining who the real plaintiff bank is and their basis for standing. If your note was originated between 2003-2007, your loan was likely bundled and sold to a securitized trust. While most Plaintiff banks claim to have standing, many do not.

    I just had a federal foreclosure case dismissed by Judge Pallmeyer on October 11, 2011. As a nationally recognized leader in Mortgage Foreclosure Defense Education & Litigation, I successfully defeated Plaintiff Complaint by filing A Motion to Dismiss for lack of standing. See Deutsche Bank v. Bodzianowski (11 cv 1950)

    Judge Pallmeyer ruled that Deutsche, a major Wall Street bank, lacked standing to foreclosure on an Illinois homeowner. Standing is the threshold question in every federal case. Plaintiff was NOT the original lender and sought to establish standing by endorsing the Promissory Note and assigning the Mortgage directly to the Trustee . While Plaintiff pled that it was the legal holder of the Note and Mortgage, it failed to convey the mortgage file according to the terms creating Trust (Pooling and Servicing Agreement - PSA) and New York trust law. A Promissory Note is an asset of the trust and should have an "unbroken" chain of endorsements from the Originator (original lender) to Sponsor to Seller to Depositor and then to the Trustee, sequentially. In other words, the act of the Trustee receiving an instrument that does not have ALL of the intervening endorsements is void. Although Plaintiff argued that it has standing because the Promissory Note, a negotiable instrument, is governed by the Uniform Commercial. However, the UCC permits parties to agree to a more exacting method of transferring the notes to the trust and in this case the parties did so.

    As always, individual cases may and will vary.

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