Affirmations That Foreclosure Papers Are Accurate – Good or Bad?

Here is an interesting post concerning the backlog in the New York courts for foreclosure actions. The article discusses the relatively new rule that requires foreclosure (plaintiff) attorneys to affirm that the documents filed are accurate: “The Thousand-Day Nightmare ‘Affirmation’ Makes New York Foreclosure Process the Longest in the Nation”

My firm has been seeing an influx lately of motions and stipulations from lenders to discontinue actions and cancel lis pendens specifically because the attorneys fear that they cannot sign such an affirmation. In some cases they simply do not know if the papers filed in a case are all accurate because many of them came from the lenders, assignors of the lenders, or predecessor law firms, so the current law firm has and had no control over those papers. Their solution? Discontinue and start all over. Not a very good thing for the court system which is already backlogged. Not so good for the homeowner who wants to keep the property either – the loan remains in default and arrears continue to accumulate. Who is this good for then? Maybe its good for the owner that wants to stay in the property and not pay the mortgage for as long as possible.

What is the owner to do? It is not likely that an owner will argue against discontinuance. No one would want to stay a defendant in a lawsuit. I am not aware of any precedent where an owner got a court order directing the bank to stay in the foreclosure court and directing the bank attorneys to file the affirmation of accuracy either. It would be an interesting strategy and one that perhaps might make sense with a motion to dismiss – but why bother if the bank already wants to discontinue? So the only reason to fight about this is if the owner can get a dismissal with prejudice – so that the bank cannot sue again. Unlikely I think and even if that were possible it still would leave the owner with a lien and no way to clear it so that would interfere with selling the property later. In view of these difficulties, I recommend that owners who want to stay in the property have an experienced attorney represent them to assist with a loan modification as soon as possible.