Case Dismissed - Foreclosure Action Dismissed Because Loan Servicing Company Failed to Name Lender in Notice of Intent to Foreclose

Homeowners fighting foreclosure in New Jersey may have a new defense.  In a recent published decision, Bank of New York Mellon v. Elghossain, MID-F-13402-10, a trial court ruled that the notice of intent to foreclose, required by New Jersey law to be sent to homeowners by certified mail, must identify the lender and it is not enough to merely name the loan servicing company.

Because the foreclosure notice sent to George and Mona Elghossain did not name the Bank of New York Mellon, which owns their debt, Judge Glenn Berman dismissed their foreclosure action without prejudice.  He also did not allow the bank cure the defect by redoing the notice correctly.  Instead they will have to refile the action again after sending a proper notice of intent.

The 1995 N.J. Fair Foreclosure Act requires the notice state “the name and address of the lender and the telephone number of a representative of the lender whom the debtor may contact … .” It defines “lender” as “any person, corporation, or other entity which makes or holds a residential mortgage, and any person, corporation or other entity to which such residential mortgage is assigned.”

The judge emphasized that substantial compliance with the law is not enough; rather “strict compliance is required.” He did not allow Bank of New York to fix the mistake by serving a corrected notice. “Merely re-serving the [notice] would eviscerate the statute’s plain meaning and effectively reward plaintiff for its neglect, regardless of how benign it may appear,” he wrote.

 
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