Real Estate Expert Witness Opines on Lender’s Failure to Follow Foreclosure Sale Law During Eviction Proceedings

Michael Morgenstern

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— Updated on October 12, 2017

real estate expert witness This case involves a home owner who obtained a mortgage on his home. An appraisal of the home indicated a valuation of $1,250,000. Two years later, the home owner defaulted on the mortgage and the lender commenced foreclosure proceedings. The home owner never received notice of the foreclosure from the lender and he first learned about it when the lender placed a notice of eviction on his fence. The home owner regularly received personal mail and business mail through a post office box and not at his home. All other documentation about the mortgage had been sent by the lender to the home owner’s post office box. The lender started an eviction action in the city’s housing court. The home owner raised the defense that the notice of the eviction was defective.

Question(s) For Expert Witness

  • 1. Can a lender evict a home owner without giving sufficient notice of the foreclosure sale to the home owner?

Expert Witness Response

In general, a homeowner may challenge a lender’s entitlement to possession of property in an action for eviction where the property was purchased at a foreclosure sale. In these cases, it is usually the lender who must establish their right to possession of the property. This is done by establishing legal title to the property. Legal title is established when the lender shows proof that the title to the property was acquired strictly according to the power of sale provided in the mortgage. In a case like this, the lender must show that they obtained a deed to the property and that the deed and affidavit of sale, were both recorded. In this case, the lender’s title to the property may be invalid because it failed to serve the homeowner with advance notice of the foreclosure sale. This type of notice is usually required by state law. In most states, a lender is required by law to mail notice of a foreclosure sale to the last address of the owner of the property that appears on the records of the mortgage holder. This type of law is enacted to protect homeowners from “self-dealing” by the lender who might take unfair advantage of the homeowner. In this case, since the lender did not mail notice of the foreclosure sale to the homeowner at his post office box, the mortgage was not properly foreclosed according to the power of sale. In order for the lender to have lawfully evicted The homeowner in this case, it would have to provide the court with an affidavit showing that the requirements of the power of sale and the applicable state foreclosure law had been complied with.

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