Foreclosure Defense Attorney in Port Richmond, NY (Served with Papers? Start Here)

Port Richmond's homeowners include many who bought in the 2000s with loans underwritten on an ITIN, the taxpayer identification number the IRS issues to workers who are not eligible for a Social Security number, and those loans were sold into the same trusts and are serviced by the same companies as any other. When a Port Richmond family applies for a modification, servicers whose intake systems are built around a Social Security number sometimes reject the application as incomplete, demand a number the borrower does not have, or route the file into a review that never concludes. The borrower, often working through a family member with better English, hears that nothing can be done, and the foreclosure proceeds against a family that was never actually evaluated.

The law does not permit that. The Equal Credit Opportunity Act, 15 U.S.C. 1691, and its Regulation B prohibit a creditor from discriminating against an applicant in any aspect of a credit transaction on the basis of national origin, and the Consumer Financial Protection Bureau has made clear that loss mitigation is an aspect of the credit transaction and that a policy of refusing to work with ITIN borrowers, or of treating immigration status as a proxy for national origin, violates the Act. The Fair Housing Act, 42 U.S.C. 3605, prohibits discrimination in residential real estate-related transactions, including the servicing of loans, on the same ground. New York Executive Law 296-a prohibits discrimination in credit on the basis of national origin and is enforceable in court and before the Division of Human Rights. Fannie Mae, Freddie Mac and FHA guidelines all permit modification of loans to ITIN borrowers. A servicer that has stalled a Port Richmond application for want of a Social Security number has a fair lending problem, and raising it, in a written notice of error, at the CPLR 3408 conference and as a counterclaim, tends to produce the review the family should have had in the first place.

Port Richmond's Spanish-speaking and Mexican, Central American and West African communities have been through the foreclosure process in numbers, and the process is conducted in English by default: the 90-day notice, the summons, the servicer's letters and the modification agreement all arrive in a language the borrower may not read, and the borrower relies on a child, a neighbor or a broker to explain them, sometimes wrongly. The New York court system addresses the courthouse part of that directly. Part 217 of the Uniform Rules for the Trial Courts requires the court to appoint an interpreter, at no cost, for any party who is unable to understand and communicate in English to the extent necessary to participate, and the Richmond County Supreme Court has interpreters in Spanish and other languages available for the CPLR 3408 conference and every other appearance; a Port Richmond homeowner should request one in the answer and at the first conference, and a conference conducted without one when the need was apparent is a defect.

Outside the courthouse, the protections are less complete but real. RPAPL 1304 requires the 90-day notice in English, and the Department of Financial Services publishes the notice in Spanish and other languages that servicers may send in addition; a servicer that knew from its own records that the borrower communicated in Spanish and sent only the English notice has not violated the statute, but the court attorney referee weighs that choice in assessing whether the servicer dealt with the borrower in good faith, and the borrower's inability to understand the notice is relevant to any motion to vacate a default. Federal servicing rules require the servicer to provide a single point of contact and to communicate in a way the borrower can use, and New York's Department of Financial Services regulations require servicers to make loss mitigation information accessible. A modification agreement signed without understanding it is challenged where the servicer knew the borrower could not read it, and I do not let a Port Richmond client sign one until it has been translated and explained. Fear of the courthouse keeps many families from appearing at all; the courthouse is where their rights are enforced, and the interpreter is waiting there.

The St. George courthouse is close to Port Richmond and further from it than the map suggests, because many of its residents have never been inside a courthouse and would prefer not to start. I have practiced foreclosure defense for 27 years, and I have walked Port Richmond families through the doors at 26 Central Avenue and watched a court attorney referee, through an interpreter, ask a servicer's representative why an application from an ITIN borrower had been sitting for eight months, and watched the servicer's position change in the course of one conference.

The conference part runs the CPLR 3408 conferences for owner-occupied Port Richmond homes, provides the interpreter, and records whether the servicer negotiated in good faith, which includes whether it evaluated the borrower on the same terms as any other and communicated in a way the borrower could understand. The assigned justices decide standing, RPAPL 1304 and 1306, the six-year statute of limitations and the amount due, and they hear the fair lending counterclaims, with appeals to the Appellate Division, Second Department. A contested Port Richmond case runs two to four years from the summons to any auction, and a servicer with a fair lending exposure usually resolves it in the conference part with the modification the family should have received. An unanswered case reaches auction in about a year, and the families most likely to leave it unanswered, because the papers were in a language they could not read and the courthouse felt like a place to avoid, are the families the protections were written for.

Richmond County sits in the Second Department, where RPAPL 1304 compliance must be strict and the mailing must be proven by a witness with personal knowledge or a routine the witness follows; Port Richmond servicers that changed hands rarely have one. Port Richmond loans from the 2000s have passed through several servicers, and the current plaintiff often cannot produce that witness. A Port Richmond lender loses on a shared envelope, a missing Richmond County counselor list, the wrong type size or a conclusory mailing affidavit; because the Court of Appeals held in Kessler in 2023 that added envelope language does not alone void the notice, the mailing, the contents and the counselor list are the questions. The counselor list must identify agencies serving Richmond County, several of which provide counseling in Spanish, and a list for another county fails the statute.

The state filing under RPAPL 1306, due within three business days of mailing and proven by the confirmation, is a separate condition the Port Richmond plaintiff must satisfy. Where either statute fails, the Port Richmond case is dismissed without prejudice and the lender must restart the 90-day process, and on a loan accelerated years earlier the restart may fall outside the six years CPLR 213(4) allows, with the Foreclosure Abuse Prevention Act, effective December 30, 2022, barring the lender from claiming the acceleration was revoked. The language question is not a statutory defect, but it is not nothing: a servicer that documented the borrower's language preference in its own system, had the Department's translated notice available, and chose to send only English has made a choice the court attorney referee may consider in weighing its good faith under CPLR 3408(f), and that a court may consider on a motion to vacate a default by a borrower who could not read the papers.

The deadline does not bend for language, and the answer must be served in English, which is one reason to call counsel the day the papers arrive. The answer pleads standing first or it is waived, the six-year limitations period under CPLR 213(4) as an affirmative defense, the RPAPL 1304 and 1306 conditions precedent, a specific denial of the amount claimed, and, where the servicer stalled or denied a loss mitigation application on the basis of the borrower's ITIN or national origin, counterclaims under the Equal Credit Opportunity Act, the Fair Housing Act and Executive Law 296-a. It states that the Port Richmond owner occupies the home so the CPLR 3408 conference is mandatory, and it requests an interpreter under Part 217 for every appearance. Substituted service is complete ten days after the affidavit is filed and the 30 days run from then; a written stipulation from the plaintiff's attorney extends the deadline and a servicer representative's assurance, in any language, does not.

Where the deadline has passed, a motion under CPLR 3012(d) before judgment or CPLR 5015(a)(1) after it requires a reasonable excuse and a meritorious defense, and a borrower's documented inability to read the summons, combined with a servicer's failure to communicate in the borrower's language while pursuing the case, has been accepted as an excuse by Richmond County justices; the meritorious defenses are the same ones every borrower has. Where service itself was defective, CPLR 5015(a)(4) requires no excuse at all. A Port Richmond family should not let the language of the papers decide the outcome of the case, and the first step is to have them read, by someone who will also read the law.

For the Port Richmond family that wants to stay, the modification is the goal, and the path to it runs through a properly submitted application, an interpreter at every conference, and a servicer that has been told in writing that its treatment of an ITIN borrower is a fair lending issue. Fannie Mae, Freddie Mac, FHA and VA each permit modifications of loans to ITIN borrowers, and the standard tools, a term extension to 40 years, a rate reduction and a principal deferral, produce a payment the household can carry; a household whose hardship has passed reinstates or enters a repayment plan. Where the servicer's stalling caused interest and fees to accrue, a CPLR 3408(f) motion tolls the interest and bars the fees, and where its conduct rose to discrimination, the counterclaims produce damages and a settlement that usually includes the modification.

For the family that is selling, a sale while the case is pending pays the lender at closing and keeps the equity, and Port Richmond's houses have appreciated with the rest of the north shore; the contract and closing documents are translated and explained before anything is signed. Nothing about the auction favors a Port Richmond owner: a discounted price, default interest and fees paid first, and whatever surplus remains held by the Richmond County Clerk until an RPAPL 1361 claim is made. Where the loan exceeds the value, a short sale requires the lender's consent and a written RPAPL 1371 waiver of the deficiency. Every one of these outcomes is available to a Port Richmond family in the same measure as to any other, and the defended case, with an interpreter in the room, is how that is made true.