Bank of New York Mellon Foreclosure Defense in Florida

Bank of New York Mellon is one of the oldest financial institutions in the country. Still, that does not mean that they are always honest in their dealings with customers, or that they have not faced legal action in the past. If you have a mortgage with Bank of New York Mellon and have received a notice of foreclosure, it is important that you do not give up.

There are defenses available in these foreclosure cases and they could even help you keep your home. Below, one of our Fort Lauderdale foreclosure defense lawyers outlines more about Bank of New York Mellon, the legal action they have faced, and the defenses that could help you keep your home.

What is Bank of New York Mellon?

The Bank of New York Mellon, often referred to as BNY Mellon, is an American investment banking services holding company with headquarters in New York City. The company was formed in 2007 when The Bank of New York merged with the Mellon Financial Corporation. With $1.8 trillion in assets, it is the world’s largest custodian bank and securities services company. Due to the fact that its predecessor was Bank of New York, it is one of the oldest banks in the country and in fact, the world. In fact, Founding Father Alexander Hamilton helped establish the institution in 1784.

Despite the fact that Bank of New York Mellon has such a strong history throughout the country, they have been known to engage in some deceptive practices. Fortunately, consumers have fought back and have often been successful with their defense.

The Defense of Unclean Hands

The defense of unclean hands stipulates that a person or company initiated a foreclosure proceeding based on fraudulent, illegal, or oppressive practices. Bank of New York Mellon has done this in the past by using a misleading name. The name they have used when filing a lawsuit states that they are “Bank of New York Mellon as trustee for the certificate holders of CWABS, Inc.”

They argue that the name is the name of a legal entity that owns or that has a right to collect, administer, and enforce scheduled payments allegedly owned by a homeowner. Still, there are many legal issues with using this name and they are as follows:

• Being named as a trustee means the bank is not appearing on its own behalf but rather, on behalf of a trust. In past cases, though, there has not been a trust identified or named. As such, the bank is not appearing on its own behalf or that of another company or person. Due to the lack of an actual person, any pleading or other legal document with this name on it is rendered void.
• Additionally, while the name includes the term ‘certificate holders,’ neither the holders nor the certificates are identified. To make matters worse, the certificates state that the holder does not have the right to collect payments or foreclose on a home.
• CWABS in the name refers to Countrywide Home Loans, but the entity never invested in, transacted with, or owned assets by CWABS, meaning this is a lie and can prove unclean hands.

Expired Statute of Limitations

In a class action lawsuit filed against Bank of New York Mellon, the plaintiff argued that the institution tried to foreclose on properties after the statute of limitations had expired. Not only is this typically grounds for an immediate dismissal, but it is also a violation of the Fair Debt Collection Practices Act (FDCPA). In this case, the foreclosures were resurrected after six years, which is the statute of limitations in New York where the lawsuit was filed.

The statute of limitations on foreclosures in Florida is five years from the defaulted payment.

When the statute of limitations has expired in your case, you can raise this as a defense to get the case thrown out. However, due to the fact that this is also a violation of the FDCPA, you can also take legal action of your own. By filing a lawsuit against the financial institution, you can recover damages for any loss you sustained. You can also claim $1,000 in statutory damages as well as your attorney fees and other legal costs.

Proof of Default

Of course, companies cannot simply foreclose on a homeowner without proving that they have a valid reason to do so. Any company that wants to foreclose on a home must prove that the homeowner has defaulted on their mortgage loan. One lawsuit alleged that Bank of New York Mellon failed to do this and the plaintiff was successful with their case.

In Florida, lenders and loan services are prohibited from starting foreclosure proceedings until a borrower is at least 120 days past due on their mortgage payments. If they cannot prove this, it can serve as a defense to foreclosure. Even if it seems as though Bank of New York Mellon can prove that you are in default, this is not always the case. Institutions do not always post payments properly to one’s account.

If you have made regular payments to your mortgage but are now being threatened with foreclosure, it is important to speak to a lawyer. A lawyer will know how to prove that you made the appropriate payments, while also proving that you are not in default.

Our Foreclosure Defense Lawyers in Fort Lauderdale Can Defend Against the Big Banks

It is always frightening to learn that your mortgage lender wants to foreclose on your home and going up against the big banks can be intimidating. However, it is important that you do not give up. At Loan Lawyers, our Fort Lauderdale foreclosure defense attorneys will never be intimidated by the big banks and we have a long track record of successfully defending our clients against them. We can put that expertise to work for you, too. Call us now at (954) 523-4357 or fill out our online form to schedule a free review of your case and to learn more.