The Statute Of Limitations Defense For Foreclosure

PatZZ

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Jan 30, 2011
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THIS IS CRITICAL INFORMATION!! Read it NJ folks. Easy to comprehend.

Cases involving the SOL are being lost across the country (not in NY), because the courts are falsely arguing that "acceleration" does not alter the maturity of the loan. NY clearly realizes it does.

NJ is claiming that NJ 2A:50-56-1(a) does NOT mention that acceleration modifies the maturity date.

C
lick for more details:
https://s3-us-west-2.amazonaws.com/gretasia/Post+Acceleration+of+Maturity.png
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Upstater

LoanSafe Member
Jun 6, 2012
24
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New York
PatZZ, do you (or anyone else) have information on a mortgagee in possession vs. the SOL? The first lis pendens was filed in 06/2006, and the owners moved out in 04/2009. The house has been vacant since and the FC was never completed. From what I've read, the clock doesn't run against a mortgagee in possession, but there are so many contradictions of what constitutes a mortgagee in possession that I'm not really sure. I've been trying to find recent cases that address this issue haven't had any luck. Any insight is helpful. Thanks!

(The property is in NY, btw)
 

PatZZ

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Jan 30, 2011
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PatZZ, do you (or anyone else) have information on a mortgagee in possession vs. the SOL? The first lis pendens was filed in 06/2006, and the owners moved out in 04/2009. The house has been vacant since and the FC was never completed. From what I've read, the clock doesn't run against a mortgagee in possession, but there are so many contradictions of what constitutes a mortgagee in possession that I'm not really sure. I've been trying to find recent cases that address this issue haven't had any luck. Any insight is helpful. Thanks!

(The property is in NY, btw)
I'm no expert on NY foreclosure law. This is something I'm sure you can easily find in a google search. I found this article: https://www.law.com/newyorklawjournal/almID/1202778666363/?slreturn=20171107004105

You may have to read several articles to get the true gist of the issue. And these 12 NY cases came up in a search for cases:
https://scholar.google.com/scholar?q="mortgagee in possession" + "statute of limitations"&hl=en&as_sdt=4,33,349,350,351,352
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Speedy

LoanSafe Member
Jul 12, 2017
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I'm no expert on NY foreclosure law. This is something I'm sure you can easily find in a google search. I found this article: https://www.law.com/newyorklawjournal/almID/1202778666363/?slreturn=20171107004105

You may have to read several articles to get the true gist of the issue. And these 12 NY cases came up in a search for cases:
https://scholar.google.com/scholar?q="mortgagee in possession" "statute of limitations"&hl=en&as_sdt=4,33,349,350,351,352
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Hi PatZZ,
I want to wish you all the best for 2018. I've been reading your threads in the foreclosure Forum. I signed up earlier this year and I'm actually in Georgia. I've been going through foreclosure since 2010 consequentively. Although the statue of limitations for Georgia says 20 years the bank has been trying to foreclose for the past 7 years.
They finally completed that task in June 2017. My question is this, each time they initiate the Foreclosure they Accelerated the debt. How many times can they accelerate the same debt. This time it was Wilmington Savings fund Society doing business as pretium mortgage acquisition Trust. They initiated an eviction in July which the Magistrate Court awarded them. I appealed to the superior court and waiting for new hearing. Meanwhile a new attorney is taking over the case and is now compelling the judge through a motion to have me pay rent saying I'm "a tenant of sufferance" really!
 

PatZZ

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Jan 30, 2011
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Hi PatZZ,
I want to wish you all the best for 2018. I've been reading your threads in the foreclosure Forum. I signed up earlier this year and I'm actually in Georgia. I've been going through foreclosure since 2010 consequentively. Although the statue of limitations for Georgia says 20 years the bank has been trying to foreclose for the past 7 years.
They finally completed that task in June 2017. My question is this, each time they initiate the Foreclosure they Accelerated the debt. How many times can they accelerate the same debt. This time it was Wilmington Savings fund Society doing business as pretium mortgage acquisition Trust. They initiated an eviction in July which the Magistrate Court awarded them. I appealed to the superior court and waiting for new hearing. Meanwhile a new attorney is taking over the case and is now compelling the judge through a motion to have me pay rent saying I'm "a tenant of sufferance" really!
As to how many times the debt can be accelerated, I encourage you to refer to case precedent in Georgia. Many courts are saying that a dismissal automatically "decelerates" the loan. That's a bunch of crap. The courts made that up to suit the banks. Our mortgage documents don't say that. The foreclosure complaint doesn't say that. Nor does the dismissal order say that. But if your state has come to that conclusion, that's a battle you would have to fight with the courts.

For those with FHA loans, there is a reprieve. HUD regulations at 24 CFR 201.50(c) state the following: "Reinstatement of the loan. The lender may rescind the acceleration of maturity after full payment is due and reinstate the loan ONLY IF the borrower brings the loan current, executes a modification agreement, or agrees to an acceptable repayment plan."

So if your loan is FHA, you could win the acceleration argument with the HUD regulations. The court cannot overrule federal regulations. Not saying they won''t try though. However, at this point, the question becomes is it too late to fight the issue of acceleration in the trial court. Not only that, what good would it do you if the SOL is 20 yrs? You said that each time they filed for foreclosure, the debt was accelerated. But if the debt was never decelerated after the initial foreclosure, then technically, the debt need not be accelerated again for the next complaint, assuming you didn't make any payments. The acceleration language in a foreclosure complaint is just standard.

I have never heard of a "tenant of sufferance." But I encourage you to Google any "terminology" you hear like that to be certain you understand what is going on. Google is your best friend when it comes to foreclosure. Georgia has a site about Tenants of Sufferance.

http://statecourt.georgiacourts.gov/content/613- tenant-sufferance

That page clearly says: "After the bank conducts a sale under power (i.e., forecloses) due to default on a deed to secure debt, a prior owner remaining in possession of property is a tenant at sufferance and may be dispossessed."

I do know that Georgia is one of the worse states for foreclosure. They move real fast - being non-judicial. For you to have lasted since 2010 beats most miracles.

Best of luck.
.
.
 

Speedy

LoanSafe Member
Jul 12, 2017
29
1
3
49
As to how many times the debt can be accelerated, I encourage you to refer to case precedent in Georgia. Many courts are saying that a dismissal automatically "decelerates" the loan. That's a bunch of crap. The courts made that up to suit the banks. Our mortgage documents don't say that. The foreclosure complaint doesn't say that. Nor does the dismissal order say that. But if your state has come to that conclusion, that's a battle you would have to fight with the courts.

For those with FHA loans, there is a reprieve. HUD regulations at 24 CFR 201.50(c) state the following: "Reinstatement of the loan. The lender may rescind the acceleration of maturity after full payment is due and reinstate the loan ONLY IF the borrower brings the loan current, executes a modification agreement, or agrees to an acceptable repayment plan."

So if your loan is FHA, you could win the acceleration argument with the HUD regulations. The court cannot overrule federal regulations. Not saying they won''t try though. However, at this point, the question becomes is it too late to fight the issue of acceleration in the trial court. Not only that, what good would it do you if the SOL is 20 yrs? You said that each time they filed for foreclosure, the debt was accelerated. But if the debt was never decelerated after the initial foreclosure, then technically, the debt need not be accelerated again for the next complaint, assuming you didn't make any payments. The acceleration language in a foreclosure complaint is just standard.

I have never heard of a "tenant of sufferance." But I encourage you to Google any "terminology" you hear like that to be certain you understand what is going on. Google is your best friend when it comes to foreclosure. Georgia has a site about Tenants of Sufferance.

http://statecourt.georgiacourts.gov/content/613- tenant-sufferance

That page clearly says: "After the bank conducts a sale under power (i.e., forecloses) due to default on a deed to secure debt, a prior owner remaining in possession of property is a tenant at sufferance and may be dispossessed."

I do know that Georgia is one of the worse states for foreclosure. They move real fast - being non-judicial. For you to have lasted since 2010 beats most miracles.

Best of luck.
.
.
Thanks PatZZ!! The foreclosure was never dismissed. I filed a bankruptcy which stayed the sale, and that was what got through that timeframe. However they overide the stay on the day of the auction..I'm going to review the bankruptcy laws a bit more. I will let everyone know if their is some relief around that issue.
 

PatZZ

LoanSafe Member
Jan 30, 2011
2,026
157
63
Nearby
As to how many times the debt can be accelerated, I encourage you to refer to case precedent in Georgia. Many courts are saying that a dismissal automatically "decelerates" the loan. That's a bunch of crap. The courts made that up to suit the banks. Our mortgage documents don't say that. The foreclosure complaint doesn't say that. Nor does the dismissal order say that. But if your state has come to that conclusion, that's a battle you would have to fight with the courts.

For those with FHA loans, there is a reprieve. HUD regulations at 24 CFR 201.50(c) state the following: "Reinstatement of the loan. The lender may rescind the acceleration of maturity after full payment is due and reinstate the loan ONLY IF the borrower brings the loan current, executes a modification agreement, or agrees to an acceptable repayment plan."

So if your loan is FHA, you could win the acceleration argument with the HUD regulations. The court cannot overrule federal regulations. Not saying they won''t try though. However, at this point, the question becomes is it too late to fight the issue of acceleration in the trial court. Not only that, what good would it do you if the SOL is 20 yrs? You said that each time they filed for foreclosure, the debt was accelerated. But if the debt was never decelerated after the initial foreclosure, then technically, the debt need not be accelerated again for the next complaint, assuming you didn't make any payments. The acceleration language in a foreclosure complaint is just standard.

I have never heard of a "tenant of sufferance." But I encourage you to Google any "terminology" you hear like that to be certain you understand what is going on. Google is your best friend when it comes to foreclosure. Georgia has a site about Tenants of Sufferance.

http://statecourt.georgiacourts.gov/content/613- tenant-sufferance

That page clearly says: "After the bank conducts a sale under power (i.e., forecloses) due to default on a deed to secure debt, a prior owner remaining in possession of property is a tenant at sufferance and may be dispossessed."

I do know that Georgia is one of the worse states for foreclosure. They move real fast - being non-judicial. For you to have lasted since 2010 beats most miracles.

Best of luck.
.
.
Don't know what happened with that link. Try this one:

http://statecourt.georgiacourts.gov/content/613-  tenant-sufferance

.
 

PatZZ

LoanSafe Member
Jan 30, 2011
2,026
157
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Nearby
Thanks PatZZ!! The foreclosure was never dismissed. I filed a bankruptcy which stayed the sale, and that was what got through that timeframe. However they overide the stay on the day of the auction..I'm going to review the bankruptcy laws a bit more. I will let everyone know if their is some relief around that issue.
Once the BK court grants relief from the stay, the bank is free to proceed.
.
 

PatZZ

LoanSafe Member
Jan 30, 2011
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bgriff

LoanSafe Member
Mar 11, 2012
163
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18
Another NJ homeowner gave it the good old college try with the SOL. Made the same kind of argument I would make but still lost.

The NJ courts are gonna pick apart every friggin word - literally - to find an out for the bank on the SOL. The judges must have had a conference about it.

https://scholar.google.com/scholar_case?case=13978671890647808589&hl=en&lr=lang_en&as_sdt=6,31&as_vis=1&oi=scholaralrt
.
I've been following this thread for awhile now (I live in NY - thankfully, and I have a 2nd that has not taken action in 8+years). It seems to me that NJ judges are intent on interpreting the law so that it benefits the foreclosing party (ie, the banks). Based on the case, it seems that the judge has stated the defendant cannot use the 6 year period as a defense since the maturity date is 2035. So does that mean the loan is not accelerated ? And if it is not accelerated, then how can they proceed to foreclosure? I understand the defendant would owe 6+ years of payment - and the bank is forcing the sale to collect > theoretically the bank should only be able to collect the 6+ years of payments (assuming the defendant could actually pay that amount). Not sure were I'm really going with this but I guess I'm trying make the arrgument that the bank should only be able to have it one way (note is accelerated) or the other way (note is not accelerated).
 

vondes

LoanSafe Member
May 28, 2017
6
0
1
31
I think NY's courts are more honest and ethical than NJ. Perhaps because it has a democratic AG who means business. He is heavy-handed when it comes to the banks. The NJ AG must be in bed with the banks. I have NEVER heard about anything our AG is doing.
 

OneHugeMess

LoanSafe Member
May 30, 2016
473
32
28
Thanks for the fake outrage, but I don't think they issue home loans for Huts in India. Do us all a favor, and take your stupid comments, and your spam about software for house cleaners, and go away. We are trying to help REAL homeowners, not losers who are paid to post links online. If you want my advice - I say, you should get a real job.