23 legal defenses to foreclosure

In re Gorman , 495 B.R. 21005, 2005 -Ohio- 6825. at 610 ). Courts have not always strictly applied the making, validity, or enforcement requirement in evaluating the sufficiency of equitable special defenses such as those raised here, particularly if a strict application would offend traditional notions of equity. NOT Bankruptcy! Each state's statute of limitations will be different and examined and applied differently. Perhaps you never received notice of the default, for example, as required by the terms of the mortgage. Debtor'sbankruptcyhas effectively stoppedforeclosure. The servicer used a defective affidavit or declaration in the foreclosure process. Their counterclaim was submitted to a jury, which found for defendants and awarded damages to them. After this, the Bank demanded Brothers to vacate the property, but they refused to do so. Homeowners' Association Liens Leading to Foreclosure, Right of Redemption Before and After a Foreclosure Sale, Reinstatement and Payoff to Prevent Foreclosure, Fannie Mae and Freddie Mac Foreclosure Prevention Strategies, Natural Disasters and Foreclosure Prevention, Federal Mortgage Servicing Laws Protecting Homeowners, Homeowner Rights Before, During, and After Foreclosure, Impact of Liens and Second Mortgages on Foreclosure, Statute of Limitations Defense to Foreclosure, Defective Affidavit or Declaration Defense to Foreclosure, Invalid Assignment Defense to Foreclosure, Your Rights Under Mortgage Servicing Rules and the FDCPA, Foreclosure Laws and Procedures: 50-State Survey. This form clearly contemplates that the notarial certification is to include the name of the person acknowledging the document. For the reasons explained below, the Court finds that Chase's failure to attach documentation to its Claim # 2 and respond to the Debtor's information requests is fatal to Claim # 2. The cases recognize a "recoupment exception" to the limitations bar on TILA actual damages claims. 2015) https://casetext.com/case/thompson-v-bank-of-am-natl-assn, The acceptance, before the expiration of the right of redemption and after the commencement of foreclosure proceedings of any mortgage of real property, of anything of value to be applied on or to the mortgage indebtedness by the mortgagee shall constitute a waiver of such foreclosure. v. Detweiler, 191 Ohio App. City Bank, Northwest v. Columbian Mut. We are known for our excellent legal work and outstanding results. 2019) https://casetext.com/case/wells-fargo-bank-na-v-juza. 402.302, which states that under the Wisconsin U.C.C., "[i]f the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract." IN RE FIRST PHOENIX-WESTON, LLC 575 B.R. (Author), Andrew Gerling Esq. For instance, the servicer must contact you soon after you fall behind in mortgage payments to discuss alternatives to foreclosure and can't dual-track your loan, among other things. Additionally, Defendants rushed the Feachers into signing the Contract without allowing them a reasonable opportunity to read and understand the Contract or obtain independent legal counsel. Damages and fees might also be available. Id., at 310, 777 A.2d 670. Also, it was immaterial that the Modification Agreement was not indorsed in blank and that it was specially indorsed to Washington Mutual, because by its terms the agreement was not a negotiable instrument. Id. Fed. The lender used predatory or unfair mortgage lending practices when you took out your mortgage loan. Ct. App. <p> 23 Legal Defenses To Foreclosure: How To Beat The Bank<br>by Doucet, Troy<br><br>Pages can have notes/highlighting. While the deficiency in Smith's Lessee was apparent on the face of the certificate, the court has also held that latent defects can also render a mortgage ineffective as against subsequent interests. 17-224-DLB-CJS. Sosa v. U.S. Bank Nat'l Ass'n, 153 So. They may pile up excessive fees that are not permitted under the terms of the mortgage. The district court determined that the note was not a negotiable instrument and, therefore, that Ameritrust was not a holder in due course. Before signing an affidavit on behalf of the bank, the custodian must review the loan documents and verify the affidavit's contents, including the principal balance, the amount of interest owed, and the costs of the foreclosure. Format: Paperback. (2) The mortgaged property is not within 200 miles of the mortgagee, its servicer, or a branch office of either. Any records kept by Mr. Pritchard that would reflect the status of the debt subsequent to its inception were destroyed by either a hurricane or fire. Miles v. Deutsche Bank Nat'l Trust Co., 186 Cal. The Contract termswhich specifically exclude the service the Feachers soughtfavor Preferred Law to an extent it unfairly oppressed, and no doubt surprised, the Feachers. Pointing out a violation of these rights can prevent a foreclosure until the lender complies with the law. In response to the defendants'foreclosureefforts, Coxson filed an adversary proceeding in the bankruptcy court, claiming that the loan documents violated the TILA. Bankruptcy Code 502(b) prescribes nine categories of claims which will be disallowed, including that "(1) such claim is unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or unmatured." (3) The mortgagor has clearly indicated that he will not cooperate in the interview, (4) A repayment plan consistent with the mortgagor's circumstances is entered into to bring the mortgagor's account current thus making a meeting unnecessary, and payments thereunder are current, or. See Chakford v. Strum, 87 So.2d 419 (Fla. 1956); Manchester Insurance Indemnity Co. v. Novack, 284 So.2d 433 (Fla. 3d DCA 1973). Spine may show signs of wear. Bank of N.Y. Mellon v. Rogers, 407 Ill. Dec. 365, 378 (Ill. App. But since the foreclosure crisis and great recession, many homeowners have successfully challenged foreclosure actions. In some states, the information on this website may be considered a lawyer referral service. 2012) https://law.justia.com/cases/ohio/sixth-district-court-of-appeals/2012/wd-11-055.html, Failure to follow FHA guidelines as a Conditions Precedent, It has been held that a term in a mortgage such as one requiring prior notice of a default or acceleration to the mortgagor is not an affirmative defense but rather a condition precedent. Ct. App. 2015) https://casetext.com/case/jarvis-v-deutsche-bank-natl-trust-co#p196. We agree with the defendant. v.Sadler Clinic Ass'n, P.A.,384 S.W.3d 875, 888-89 (Tex. Pa. 1992). 1975). Ct. 2018) https://casetext.com/case/us-bank-na-v-stibolt, 3709 N. Flagler Drive Prodigy Land Trust, Mango Homes LLC v. Bank of Am., N.A., 226 So. The creditor may nonetheless proceed withforeclosurebyjudicialaction or proceed withforeclosurebased upon a different default. A successful defense may take several different forms, ranging from procedural issues to substantive errors or abuses. Common Defenses to Foreclosure Writing a Hardship Letter If you want to avoid foreclosure with a short sale, deed in lieu, or loan modification, you might need to write a hardship letter. It's now much more difficult to win your case based on a standing argument. It may sue you later for the $5,000, but that is its remedy at law not for you to jump through paperwork hoops. See Filak v. George,594 S.E.2d 610, 614 (Va. 2004). If it's later discovered that the information was false, and the matter ends up in court, a judge will give an affidavit greater evidentiary weight than after-the-fact trial testimony. Defendants' only remaining argument in support of the dismissal of the breach of contract cause of action is that plaintiff failed to attach the contract or to plead its terms verbatim. Id. For most homeowners who want to keep their homes, Chapter 13 is a better choice because it affords more options. Hello, Sign in. The dispositive facts in this appeal are not in dispute. And even if the plaintiff is unable to demonstrate good cause, "the district court must still consider whether a permissive extension of time may be warranted. (12 C.F.R. 65; ECF No. Further, In re Peed, 403 B.R. * * * The holder of a cognovit note in default obtains a judgment without a trial of possible defenses which the signers of the note might otherwise assert. Co. v. Newman, 851 S.W.2d 22, 26 (Mo. Most mortgage contracts include a "grace period" of around ten or fifteen days. It appears that HomEq believed the balance had been miscalculated on the March 13 agreement and thus refused to honor it (even though management had reviewed it and a vice-president had signed it). See Terlecky v. Countrywide Home Loans, Inc. (In re Baruch), Adv. 23 Legal Defenses to Foreclosure breaks down 23 powerful foreclosure defenses into easy-to-understand chapters. 1994) https://casetext.com/case/burns-v-resolution-trust#p153, Note is a NOT a Negotiable Instrument Rules, Note Not Negotiable: Takes Only the Rights Seller Has, Contains one of the prohibited items from 1303.05 (see above) Natl. Apr. To invoke the doctrine of unclean hands as a defense to a foreclosure action, a defendant is required to prove unfair conduct that is germane to the mortgage transaction. E.D. 3:10-232. https://www.leagle.com/decision/infdco20140304d81, To succeed on a promissory estoppel claim, the plaintiff must further establish that the action he took amounted to a substantial change of position. However, the appeal court ruled that the judge erred in making this judgement and the assignment made no such obligation of the plaintiff. If the foreclosing party can't prove it owns the loan, it doesn't have "standing" to foreclose. 1808 ). 525, 531 (Bankr. Chase has the burden of establishing its standing. The book includes: legal letters, forms, motions, an "Answer" to the lawsuit, and sample discovery to get damaging information directly from the bank. But that party may nevertheless sue for breach of the contract if its default was excused by the other party's prior material breach. GUNDERSON v. WEIDNER HOLDINGS, LLC 463 P.3d 315 (2019) https://www.leagle.com/decision/incoco20191226025. Ms. Boone knew about the foreclosure, but also knew about the supposed executed extension agreement, the Conseco billings after her bankruptcy filing and about her payments. Mortgage servicers often make mistakes when they're dealing with borrowers' accounts. However, when the plaintiff is suing upon a contract and alleges performance that is denied by the defendant, "it is incumbent upon the plaintiff to prove performance, at least substantially." Had HCTA accepted the check and applied it in the order prescribed by section 5655(a), the amount of delinquent assessments would have been less than $1,800. Wells Fargo Bank, N.A. Some of the various defenses to foreclosure include the following. Harrison also pleads facts sufficient to conclude that U.S. Bank breached its obligation to him. We recognize that the defendant retained a technical right to remain living in the home, but this "right" could be terminated by the plaintiff/mortgagee upon thirty days' notice; moreover, the defendant's right to repurchase her home was also a hollow right because she was penniless, as the plaintiff well knew. The buyer could still have financing and appraisal contingencies in the contract with you, but your efforts directly to the bank should be limited and specific to the dollar amount. In re Minbatiwalla, No. Here, Bank's complaint was filed in 2013, based on an alleged default occurring on June 1, 2006.3Because trial counsel for the parties stipulated to the court that the facts were undisputed, with Bank's counsel additionally confirming that the sole determinative issue to resolve at trial was one of law, the court erred when it failed to dismiss the foreclosure complaint with prejudice based on a default that occurred out-side of the five-year statute of limitations period. In short, independent actions for fraud on the court are available only to "prevent a grave miscarriage of justice." 1993) https://casetext.com/case/auto-owners-mut-ins-co-v-newman, Fireman's Fund Mortg. . If you want to learn about possible ways to avoid a foreclosure, like with a loan modification, short sale, or deed in lieu of foreclosure, consider also talking to a HUD-approved housing counselor. If an affidavit that a bank or servicer submits as part of a foreclosure is false, either because the affiant (the signer) doesn't have personal knowledge of the facts and figures contained in the document or because the affidavit has incorrect information, you can contest the foreclosure. Ct. 2016) https://casetext.com/case/td-bank-na-v-doran-1?resultsNav=false, In applying the laches doctrine to the belated foreclosure of a mortgage, the Williamson court said: Though recovery on the note is barred by a statute of limitation, the running of such statute on the note does not prevent foreclosure of the mortgage given as security therefor. 20 Civ. U.S. Bank v. Stibolt, Appeal No. In regards to foreclosure by judicial sale, necessary parties can include "parties who acquired easements, liens, or leases after the mortgage being foreclosed was executed."[7]. 57-1 at 13-17; ECF No. Here, the court found that the allegations in the pleadings were wholly sufficient to support the special defenses of estoppel and unclean hands, but only failed because they did not directly relate to the making, validity, or enforcement of the note or mortgage. Harrison alleges that he received only twenty-five days' notice, which is a breach of U.S. Bank's obligation to provide him with thirty days' notice. We agree with the reasoning of the district court in Signet Bank and the district court in this case. The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site. You can probably get rid of the foreclosure proceeding if you can show that you are making payments under the loan modification plan. The loan owner or servicer violated federal law, such as the Truth in Lending Act or Real Estate Settlement Procedures Act. Ct. App. 260, 5A;O'Brien v. Deutsche Bank Nat'l Tr. Ct. 2016) https://casetext.com/case/td-bank-na-v-doran-1?resultsNav=false, The foreclosure statute provides that "[s]ervice of process on all parties in interest and all proceedings must be in accordance with the Maine Rules of Civil Procedure." But these days, banks and investors are pretty careful about addressing any gaps in their paperwork before starting a foreclosure. Enterprise Roofing & Sheet Metal Co. v. Howard Investment Corp. (1957), 105 Ohio App. Lloyds,875 S.W.2d 691, 692 (Tex. The unintended consequence foretold by HCTA suggests not that the Legislature intended for an association to be able to decline partial payments. https://www.nolo.com/legal-encyclopedia/what-pooling-servicing-agreement-psa-the-mortgage-industry.html, With respect to the interplay between assignments and pooling and servicing agreements, homeowners lack standing to enforce the terms of a pooling and servicing agreement to challenge an underlying assignment because noncompliance with a pooling and servicing agreement does not render an assignment void. This may seem like a minor problem, but an overstatement can cause a homeowner to give up their home because they believe that they do not have enough funds to reinstate the mortgage. S.D.N.Y. Substantive defense = a defense based on the specific facts of the case (such as when the defendant is not behind on their mortgage payments). 293, 299,413 P.2d 397(1966)). Corp.,157 A.D.3d 1152, 1154-1155 [3d Dept 2018]) IMRIE v. RATTO 2019 NY Slip Op 50845(U) https://www.leagle.com/decision/innyco20190530464, Generally, the doctrine of promissory estoppel is applicable when a promise has been made, but there is no tangible consideration offered in return; instead, detrimental reliance acts as a substitute for actual consideration. Be aware that the servicer generally doesn't have to review more than one loss mitigation application from you. Federal and state laws prohibit lenders from using predatory tactics. "Appellee could not prevail on the claims assigned by the bank without proving the existence of a valid assignment agreement." You may also attach a summary. The statute of limitations begins to run when a cause of action accrues, and [a] cause of action accrues when the last element constituting the cause of action occurs. In re Randall, 358 B.R. 19-cv-3050-WJM-SKC https://www.leagle.com/decision/infdco20200821c40, Dismissal without prejudice. A defense of insufficient service of process must be raised in a responsive pleading or by motion or it is not preserved. Ct. App. 2004) ("It is a fundamental principle of contract law that when one party to a contract commits a material breach of that contract, the other party is discharged or excused from further performance."). Ct. 2005) https://casetext.com/case/monetary-v-pluchino, As Official Comment 1 to 2-302 of the Uniform Commercial Code suggests, [t]he basic test is whether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract. A foreclosure action has two counts. Learn the Foreclosure Process in Your State. Delaney's, Inc. v. Pritchard, 480 So. 83-AP-799, citing Thomas v. Matthews (1916), 94 Ohio St. 32 http://www.supremecourt.ohio.gov/rod/docs/pdf/6/2006/2006-Ohio-3798.pdf, As to materiality: In determining whether a breach of contract is material, five factors are provided: "(a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; "(b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived; "(c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; {"(d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; "(e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing." Ky. 2004);McCarthy v. Louisville Cartage Co.,796 S.W.2d 10, 11 (Ky. Ct. App. https://www.legalmatch.com/law-library/article/breach-of-contract-defenses-unclean-hands.html, https://blog.amerihopealliance.com/blog/is-unclean-hands-an-effective-defense-against-foreclosure#:~:text=The%20doctrine%20is%20often%20stated,to%20default%20on%20their%20mortgage, https://www.miamidade.gov/business/library/reports/foreclosure-defenses.pdf, https://www.leagle.com/decision/inctco20180918067, https://www.leagle.com/decision/inctco20171102090, https://www.leagle.com/decision/inadvfdco130327000116, https://www.justia.com/foreclosure/alternatives-to-foreclosure/filing-for-bankruptcy-to-avoid-foreclosure/, https://www.leagle.com/decision/inflco20151113138, https://www.leagle.com/decision/infdco20210106674, Florida Rule of Civil Procedure 1.420(a)(1), https://casetext.com/case/us-bank-na-v-stibolt. It helps ensure the accuracy of information. Ms. Boone's damage is that she paid Conseco and will lose her home if it can stand on its foreclosure. Moreover, "[o]n a Rule 12(b)(5) motion to dismiss, the plaintiff bears the burden of establishing that service was sufficient. 2103.02, "[a] spouse who has not relinquished or been barred from it shall be endowed of an estate for life in one third of the real property of which the consort was seized as an estate of inheritance at any time during the marriage." It was a proper holder in due course when it possessed the original note that was indorsed in blank. ", Statement authorizing attorney to confess judgment against obligor, Statement consenting to creditor bringing action to obtain judgment against obligor based on warrant and attorneys confession of judgment, Waiver of prior notice of judgment, right to trial and right to appeal. A recoupment or set-off claim will be exempt from the one-year statute of limitations only when the debtor's claim is raised as a defense. demand letter, affidavit from lender containing amount of unpaid principal/interest if these documents are required by local rule, Common Practice to Submit Original Warrant of Attorney with Complaint, 2323.13(A) "original or copy of the warrant shall be filed with the clerk". The loan owner or mortgage servicer didn't follow federal mortgage servicing laws. Corp. v. Allstate, 838 P.2d 790 (Alaska 1992) https://casetext.com/case/firemans-fund-mortg-corp-v-allstate. . E.D. 12 U.S.C. Situations where cognovit judgments have been vacated: o Cognovit judgment against corporate officer in individual capacity (not against the corporation), o Transaction underlying cognovit judgment was actually a consumer transaction, o Amount of cognovit judgment exceeded amount due on instrument, o Creditor/agent had told guarantor that guarantor was not personally liable for debt (fraud in inducement). In essence, Ms. Boone will be on a strict compliance schedule due to Conseco's postforeclosure actions. If this applies to your case, you need to talk to an attorney about possibly looking at a bankruptcy to wipe out the mortgage and get our client over $130,000 equity free and clear. But servicers and lenders sometimes make errors or skip steps when completing the process. 23 Legal Defenses to Foreclosure: How to Beat the Bank by Troy Doucet is an excellent overview for anybody exploring this area. In Lambert v. Dracos, the Lamberts had two mortgages against their home. Ltd., 127 F.Supp.2d 280, 285 (D. Conn. 2000) ("New York courts have embraced a more flexible approach to personal service upon corporations," allowing service upon a corporate employee who then "redelivers" the summons to a person authorized to accept service); Melkaz Int'l Inc. v. Flavor Innovation Inc., 167 F.R.D. Mich. Feb. 26, 2009), https://www.casemine.com/judgement/us/591467a5add7b049342b6651. State laws that prohibit predatory lending. Because an action to foreclose a mortgage is an equitable proceeding, the doctrine of unclean hands may be applicable. It is hornbook law that a general creditor having no lien upon the property is not a proper party, initially or by intervention, to a foreclosure suit. https://www.nolo.com/legal-encyclopedia/challenging-late-other-fees-foreclosure.html, Miles v. Deutsche Bank Nat'l Trust Co., 186 Cal. 254, 778 A.2d 529 (N.J. Super. R. 9(C) states, "In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. No. v. Detweiler, 191 Ohio App. https://www.leagle.com/decision/19921503843sw2d66011404, Generally, if the mortgagee recovers under the policy, the monies received by the mortgagee inure to the benefit of the mortgagor. Federal and state foreclosure laws are complicated. 2013), https://casetext.com/case/pfeifer-v-countrywide-home-loans-2. Compass Bank v. MFP Financial Services, Inc.,152 S.W.3d 844, 852 (Tex.App.-Dallas 2005, pet. A lawsuit cannot proceed without proper service of process. Submitting data does not create an attorney-client relationship. Start here to find foreclosure lawyers near you. v. Dutch Lane Associates, 775 F. Supp. 2:13-cv-92-EJF. MAZZEI EX REL. If the foreclosing party failed to follow the procedures required by state law, you can ask the court to dismiss the case. Therefore, because it did not acquire its interest until after the filing of the lis pendens, it had no "sufficient stake in a justiciable controversy, with a legally cognizable interest that would be affected by the outcome of the litigation.". 3d 128 (D.N.H. Account & Lists Returns & Orders. 2020). );Joseph v. PPG Indus.,674 S.W.2d 862, 867 (Tex. It is only when the mortgage debt has been due after maturity for a time sufficient to raise a presumption that the same has been satisfied that mere delay will furnish a defense to foreclosure. 7031 Koll Center Pkwy, Pleasanton, CA 94566. Hamrick v. Safe Auto Ins. Judgement in the foreclosure action favored the bank, the mortgages were foreclosed, a sheriffs sale was ordered, and the Bank purchased the property. You may have a right to force a lender to pursue a judicial foreclosure instead of a non-judicial foreclosure if you took out your mortgage before going on active duty. On the undisputed facts presented, we hold that Fireman's Fund is not precluded by AS 34.20.100 (1990) from satisfying its outstanding debt from available insurance proceeds even though it purchased the fire-damaged property at its own foreclosure sale. In addition, there was testimony that Mr. Pritchard performed accounting services for Mr. Delaney and the defendant for many years. Jul. Courts, also mostly in the credit card context, disagree whether, and under what circumstances, the failure to attach sufficient documentation to a proof of claim can result in disallowance of a claim on procedural grounds. Read 23 Legal Defenses To Foreclosure: How To Beat The Bank book reviews & author details and more at Amazon.in. Sykes v. RBS Citizens, N.A., 2 F. Supp. . P. 12(b) & (h). at 174. Typically, the affidavit will contain the following information: The bank or servicer will appoint an employee familiar with the bank's record-keeping practices as the "custodian" of records. July 1, 2015)https://law.justia.com/cases/new-york/appellate-division-second-department/2015/2013-07197.html. Buy 23 Legal Defenses To Foreclosure: How To Beat The Bank by online on Amazon.ae at best prices. The judgment was in favor of Comanche and ordered "that all of said lands and premises be sold." Although the lien could not be foreclosed until the conditions of section 5720(b)(2) had been met, the lien itself is a powerful coercion mechanism; for instance, the lien would have to be satisfied to permit the sale of the home. ), cited by Citibank v. Hyslop, 2014-Ohio-844, 10 (10th Dist. GALLAN v. BLOOM BUSINESS JETS, LLC Civil Action No. Hartman v. Great Seneca Fin. 3-16-0699, 7 (Ill. App. . See also Smith's Lessee v. Hunt, 13 Ohio 260, 269 (1844) (holding that court was unable to infer name of grantor when acknowledgment was blank as to the grantor and, thus, the mortgage was defective and did not convey title); Cala, 2008 WL 2001761 at *6 ("In order to properly certify an acknowledgment, the notary must provide some indication that the party actually appeared."). Available Copies. At its core, these two claims are based in contract law. Pro. [1] https://www.uscourts.gov/sites/default/files/Rules%20of%20Civil%20Procedure. Fed. If you make timely payments under your Chapter 13 debt repayment plan, you can avoid foreclosure. These are just some examples of possible defenses to a foreclosure. Gen. Laws ch. Servs.,51 A.D.3d 1169, 1170 [2008] [internal quotation marks and citation omitted])" (Kaloyeros v Fort Schuyler Mgt. A motion to dismiss can be presented based on failure to join indispensable parties. Ct. App. Relevant here, "[w]here the plaintiff contends that its standing to foreclose derives from an endorsement of the note, the plaintiff must show that the endorsement occurred prior to the inception of the lawsuit." "Ocean View Towers, Inc. v. First Fid. This ruling established that a bank must joins all parties it knows has some claim in a foreclosure. Such judgment shall authorize the same proceedings for its enforcement as judgments rendered in actions regularly brought and prosecuted. https://www.leagle.com/decision/infdco20190529e05, How would someone spot it in their own situation, Promissory estoppel is a quasi-contractual theory and "generally serves as a stop-gap where no valid contract exists to enforce a party's promise." These provisions further provide that, for a sixty day period beginning on the date of the effective transfer, if a borrower sends their payment to the transferor (instead of the transferee, where the payment should be sent), the borrower will not be charged a late fee. (N.Y. App. 502(b). Accordingly, unlike inU.S. Bank National Assn.,the allegations of preforeclosure conduct by the plaintiff in the present case had a far more obvious and direct connection to the enforcement of the note or mortgage.7 Moreover, the majority's suggestion that the defendants' special defenses could be viable only if the defendants actually had reached a modification agreement would unnecessarily shield mortgagees or their agents from judicial scrutiny of potentially unscrupulous behavior that may have directly resulted in the foreclosure action. In holding plaintiff to his promise, the court, after conceding that normally a consideration must be shown to support a promise, said: "But a court of equity will sometimes prevent parties from disregarding their promises, even when no consideration has accrued to them upon the making of such a promise. For example, say the servicer fails to send you a notice of default that state law requires. ARNOLD v. LIBERTY MUT. So, in order to assert a claim based on a quasi-contractual theory, a party must plead that a contract is either lacking or invalid.