Notwithstanding the reputation that arose from the robo-signing controversy several years ago, the process of initiating a foreclosure action requires careful, considered decision-making. This is especially true in the commercial foreclosure context, where the amounts at issue often exceed seven figures. Some of the critical threshold issues that are often overlooked in a foreclosure case are addressed here in turn.
The Standard for Standing to Foreclose
Oftentimes, there is no dispute as to the mortgagor’s default under the loan documents. That does not mean, however, that the foreclosure will not be disputed. Because foreclosure actions are highly technical, there are myriad defenses available to a mortgagor having nothing to do with the actual payment or nonpayment of the loan. A mortgagee should anticipate as many of these potential defenses as possible and attempt to both plead around such defenses in the foreclosure complaint and have sufficient documentation available to quickly rebut such defenses, if raised.
