Wells Fargo has Problems Foreclosing when they Build Their Cases on Shaky Facts
If you are facing foreclosure by Wells Fargo, you should have an attorney go over the complaint and walk you through all of your options. As a case in point, Wells Fargo Bank, N.A. vs. John M. Riley, the bank was found to have unclean hands.
Unclean hands is a defense that means someone asking for a judgment from the court cannot have the courts hands if they did anything unethical with regards to the lawsuit. For instance, a Contractor cannot sue a homeowner and win if they were paid to install marble countertops and instead installed Formica countertops that cost less than they were already paid. The contractor did something unethical and has unclean hands, and cannot recover in the court because of this.
In the Riley case, “JP Morgan Chase N.A. as successor in interest to Washington Mutual Bank …. ” sold Defendant’s note and mortgage to the Plaintiff Trust. The bank tried to prove it had the right to sue by submitting documents that were false. At trial, an employee for the bank admitted that any claim that the bank ever owned or sold Defendant’s note and the mortgage was false. The court found the bank had unclean hands, and dismissed the case.
Without Proper Service, a Case Cannot Move Forward
In Wells Fargo Bank, N.A. v Jones, this New York Foreclosure case was dismissed because the bank could not prove proper service. To start a foreclosure case a bank has to prove it has the standing to sue. Standing basically means the right to file a lawsuit or file a petition under the circumstances of the case
So to commence a mortgage foreclosure action a bank must show that it was “both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action was commenced” (Bank of N.Y. Mellon Trust Co. NA v Sachar, 95 AD3d 695, 695 [1st Dept 2012]).
Standing to sue was raised as an affirmative defense in Wells Fargo v Jones. An affirmative defense takes states facts that are contrary to those stated in the original complaint against the defendant and often includes various defenses based on standard legal principles. Many of these defenses fall into what would be considered “boilerplate” defenses as they are common and raised all the time as defenses, however, when the Plaintiff does not follow the proper legal procedures, then “boilerplate” defenses can win. But, the defenses need to go beyond just stating a defense and have some basis in reality. Raising a defense and not stating how it relates to the lawsuit will not win in court.
If you have any questions on how to defend a foreclosure case in New York, you should speak to an attorney to go over all of your options. Filing a wrong answer can be more damaging to your case than not filing at all. My law firm offers free consultations to help you develop a strategy to go over all of your options.
Call us today to set-up an appointment at 973-200-1111.
Derek J. Soltis, Esq., MBA/MS is a New York State Licensed attorney, focusing on Foreclosure Defense and Bankruptcy who has helped many people with defending foreclosure law suits in New York.