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A “HIGH COST LOAN” AS DEFINED BY THE BANKING LAW IS A DEFENSE TO A FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether the loan in this foreclosure action violated the Banking Law such that there is a defense to foreclosure pursuant to RPAPL 1302(2):

RPAPL 1302(2) provides, in pertinent part, that “[i]t shall be a defense to an action to foreclose a mortgage [for a high-cost home loan] that the terms of the home loan or the actions of the lender violate any provision of,” among other things, Banking Law § 6-l … . “A home loan is a ‘high-cost home loan’ if, among other things, the total points and fees charged exceed five percent of the total loan amount” … . Here, the defendants demonstrated potential merit to their defense that their loan constituted a “high-cost home loan,” because the lender allegedly financed certain closing costs, thereby receiving indirect compensation related thereto … , and that the terms of the loan or actions of the lender violated provisions of Banking Law § 6-l. Wilmington Trust, N.A. v Newman, 2023 NY Slip Op 06557, Second Dept 12-20-23

Practice Point: Pursuant to RPAPL 1302(2), a “high cost loan” within the meaning of the Banking Law is a defense to a foreclosure action.

 

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