Servicers well recognize that newspapers are filled with stories about lender and servicer mistakes – robo-signing, incorrect notarizations, etc., etc.. There is no doubt that this avalanche of unfortunate publicity creates some biases in the courts about the legitimacy of some foreclosure actions – a different subject we will address in another forum.
But the question arises, can a borrower – or other party to a foreclosure – use a newspaper article as a defensive tactic? While as an addition to an otherwise legitimate defensive posture it may offer some moral suasion, the answer to the question is no, the newspaper article cannot provide a defense.
This was the issue in a very recent eviction after foreclosure where a holdover borrower not only declined to leave the foreclosed premises, but filed an order to show cause seeking a stay of the eviction proceeding. [Federal Nat’l Mtg. Association v. Gomelsky, 29 Misc. 3d 1215(A), 2010 WL 4188042 (N.Y. Dist. Ct.)] In support of that effort, the borrower justified his posture by offering an article taken from the New York Times talking about errors in foreclosure cases.
The important point is that the court rejected such evidence. The holding was that it is well known in both federal and state courts that newspaper articles are generally inadmissible to prove the facts of the case because those articles are simply hearsay.
So while these newspaper reports – and articles in other media – are certainly more than troublesome, they are not evidence so in and of themselves cannot provide a defense in a mortgage foreclosure action.
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.