Lack Of “Attorney Affirmation” Proves Fatal To Foreclosure


15 December, 2011


Mortgage Lender and Servicer Alerts

It has come to this, and maybe not surprisingly:  For want of the new attorney affirmation, a foreclosure action was dismissed!  [U.S. Bank, N.A. v. Solorin, Queens County Index No. 5769/10]

The real underlying problem is that as of October 20, 2010, attorneys are constrained in home loan foreclosures (an owner occupied one-to-four family dwelling) to affirm in essence that they have reviewed the foreclosing plaintiff’s documents and records in the case, communicated with a representative of the plaintiff and were told that the representative personally reviewed those records and the summons and complaint.  Thus, the attorneys are bound to have confirmed the accuracy of the filings and the notarizations.

The difficulty for the attorneys – and certainly in this case – is that they are understandably reluctant to make such representations if everything is not absolutely clear on these points.  So if the foreclosing plaintiff is unable to provide the information and a knowledgeable person to confirm it, counsel will be forced to refrain from submitting the affirmation.

The noted case was a bit odd in that plaintiff rejected the borrower’s answer as untimely and it involved some obscure practice requirements requiring entering a default within one year.  But the peril is highlighted nonetheless.  Here, sixteen months had passed after the borrower’s default and still no order of reference had been sought – because counsel was unable to present the required affirmation.

When the borrower moved to dismiss the action because more than one year had elapsed since the default, the court granted the motion.  Here then it was not merely case delay incurred because there was no attorney affirmation; the entire action was gone.

While the court was possessed of the authority to do this, the “affirmation” requirement was designed not as a basis to dismiss foreclosures, but to assure accuracy in the process.  The problem is that some courts are seizing upon regulations of this type to smash lenders.  It is both unfortunate and a startling lesson:  foreclosure counsel must be timely given the backup to submit the attorney affirmation at whatever stage it may be required.  Neglect to do so might lead to case dismissal.

Mr. Bergman, author of the four-volume treatise, Bergman on New York Mortgage Foreclosures, LexisNexis Matthew Bender (rev. 2017), is a partner with Berkman, Henoch, Peterson, Peddy & Fenchel, P.C. in Garden City, New York. He is also a member of the USFN, The American College of Real Estate Lawyers, The American College of Mortgage Attorneys, an adviser to the New York Times on foreclosure issues and writes a regular servicing column for the New York Law Journal. He is AV rated by Martindale-Hubbell, his biography appears in Who’s Who In American Law and he has been for years listed in Best Lawyers In America and New York Super Lawyers.