In Defending a Mortgage Foreclosure Case, Ask What Is Missing?

by J. Kutkowski on January 8, 2013

I hate to admit it, but foreclosure attorneys in Pennsylvania are getting better… much better.

Mistakes that were being made three years ago aren’t happening anymore.  Now when I get a foreclosure action to defend, I no longer have the automatics to fall back on.

The automatics are things opposing counsel did every time that I could file an affirmative defense to.  A couple of them were:

No or faulty verification.  In layman’s terms, 18 Pa. C.S. Section 4904 requires a verification to be made by a party who has first-hand information of the mortgage being foreclosed on.  I often saw MERS doing the verification, which is impossible unless MERS owns the mortgage (it never does).  Once in a while they would forget to sign it, or they would sign it with a stamp (hello robo-signing), or they would forget to date it.  I could almost be assured I could use that affirmative defense.  Today I have a complaint in front of me with a perfect verification, and believe me I tried to find a hole, there just isn’t one.

Another mistake was to not list an itemized statement of the amount due.  I would often see principal balance, escrow, attorney fees and my favorite, miscellaneous fees appear on the complaint.  In Pennsylvania, the Plaintiff must give a statement with enough detail for the defendant fairly understand what he/she is being sued for.  Miscellaneous fees could be anything from property restoration to a trip to taco bell for the phone jockey.  Who knew?  Today I objected that escrow wasn’t detailed enough, but that is far from the empty net shots I used to get.

Now when you defendShawn Spencer a foreclosure, you have to ask yourself what is missing.

In the particular case I am working on, the complaint references an assignment of a mortgage from one company to another to a third.  Oddly enough, everything is included as an exhibit except the assignments.

Who wants to bet that the assignments are invalid?  This guy does.  Why would you include everything except the assignment in the complaint, and if the assignment is invalid, guess what might happen?  If the assignment is invalid, the mortgage may not have been properly transferred and at the very least, the moving party would not have standing to take an action in foreclosure.

In short, if I find what I expect and can convince the judge that without a valid assignment, the plaintiff has no standing to sue, game over.

This will only slow down the foreclosure process.  The lender will eventually fix its assignment problem and then begin foreclosure proceedings again, but at least I slowed them down and gave my client time to find work and get the loan caught up.Game Over

So this afternoon, after my 1 PM appointment, I will drive out to Easton (I lived there for four years) and spend a half-hour or so printing off those assignments.  I bet they are invalid.  Even thought foreclosure attorneys are doing things correctly now, they can’t go back and fix what was done improperly.

This is why now, more than ever, if you want to defend a foreclosure you need a lawyer.  You may be able to talk your way out of a speeding ticket, but even if you are super-smart (and many of my clients are Sheldon-level geniuses), without the specialized training and skills a foreclosure defense attorney has you are probably going to be steam-rolled by an aggressive foreclosure law firm.

If you get a complaint in foreclosure, read it over and ask yourself, “What am I missing?”  If you don’t have that answer, then you are missing a competent attorney, and if you live in the Lehigh Valley, you are in luck, one is just a phone call away at 610-928-1233.

{ 4 comments… read them below or add one }

Jay Goldstein June 4, 2013 at 9:58 am

I am trying to assist my brother in a foreclosure action in PA. In many states, assignment of the mortgage is not enough to pursue an action. There must also be an assignment of the underlying note. Does PA require the assignment of the notes as well?

J. Kutkowski June 13, 2013 at 7:57 am

I haven’t seen that come up, mostly because the assignment of the mortgage is usually flawed. If your brother needs help from a PA lawyer he is welcome cto call.

m.jl January 26, 2014 at 3:44 pm

Yes assignment of the Note is absolutely required. Its in the mortgage contract itself- “the Note is evidence of Debt.” The mortgage follows the note, by “Carpenter vs Longan” decd U.S. Supreme Court in 1873. “…the mortgage without the note is a nullity; the mortgage is only a mode of lien enforcement”. The mortgage is INCIDENT not EVIDENCE of debt.

the question of ‘standing to sue’ relies on the operation of the Uniform Commercial Code regarding “Negotiable Instruments” and the evidence of debt here is the Promissory Note (an IOU)

J. Kutkowski September 17, 2014 at 10:45 am

If only it were that basic. There are literally hundreds of things that could go wrong in a foreclosure case, which is why you should hire a lawyer to defend it.

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