Amended foreclosure law strengthens ‘standing’ defense


Gov. Andrew Cuomo has signed a bill that will likely benefit homeowners facing foreclosure.

Coined the “Deed Theft Bill,” the new law (S.5160) is intended to help keep elderly and financially strapped homeowners from losing their homes, as well as protect them from “deed fraud.” Deed fraud occurs when any sort of fraudulent deed is recorded against a property, often unbeknownst to the property owner.

The new law amends the real property actions and proceedings law in relation to the failure to raise the defense of lack of standing in a mortgage foreclosure action. Further, the new law states “any defense based on a plaintiff’s lack of standing in a foreclosure proceeding related to a home loan cannot be waived by a defendant’s failure to raise such a defense in a responsive pleading or pre-answer motion.”

Previously, if a homeowner did not know who owned their mortgage, but wanted to challenge a foreclosure, they had 30 days to take action. That meant that if a property owner failed to contest a lender’s right to foreclose — legally referred to as standing —  within 30 days, any future right during the court process to contest the foreclosure would be waived.

“With the rise of a system under which mortgages can be recorded a single time and then assigned to several different parties over the lifetime of the loan, it’s not as easy as it used to be to figure out who actually has both the note and the mortgage which you need in order to have standing to bring a foreclosure action in New York state,” said Henry Meier, the New York Credit Union Association’s senior vice president and general counsel.

Although the new law will likely benefit homeowners who may otherwise face losing their homes, the downside is that it potentially adds time to the state’s already lengthy foreclosure process, Meier explained.

“New York already has one of the longest foreclosure process in the nation. Foreclosures are an issue we will continue to talk about with the Legislature,” Meier said.

The law is effective immediately.

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