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Hidden defects in title are one of the nightmares of the title insurance industry – as well as one of the protections that make the purchase of title insurance the more alluring. Although only experience may supply the ultimate answer, there is a possibility that the new “predatory lending law” in New York will generate lurking infirmities in titles devolving through mortgage foreclosure actions that may render tenuous the issuance of insurance on such properties. (L.2002, ch.626, amending the banking law, the general business law and the real property actions and proceedings law.) The immediate heart of the issue relates to the new RPAPL 1302, entitled “Foreclosure of High-cost Home Loans.” Subsection (1) now requires that any complaint served for foreclosure of a high-cost home loan must affirmatively allege that the plaintiff has complied with all the provisions of banking law section 595-a and 6-1. In addition, that allegation must be proven to the satisfaction of the court before judgment (by default or otherwise) can be entered. Subsection (2) specifically denominates as a defense to foreclosure that the home loan violates any provision of section 6-1 of the banking law.
Although there is much more about the new statute yet to analyze, here are some scenarios, and the questions they raise, which might give pause to underwriting counsel:
Dangers in Enforcement
In the usual mortgage foreclosure situation, an insurer of the title would typically be concerned only about assaults from named defendants in the foreclosure action. (For unnamed defendants the issues, of course, involve strict foreclosure or reforeclosure actions.) And most often this attack will come from a disgruntled borrower. Such are the expected vicissitudes of insuring titles devolving through foreclosure; insurers are accustomed to them and surprises may not be unduly frequent.
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