What’s In A Name? Identifying Servicer, Not Lender, Inadequate Notice Of Intent To Foreclose Under New Jersey’s Fair Foreclosure Act

by:  Steven P. Gouin

The New Jersey Chancery Division has reaffirmed that substantial compliance with New Jersey’s Fair Foreclosure Act (“FFA”) is not enough to overcome a motion to dismiss a foreclosure complaint.  In Bank of New York Mellon v. Elghossain, the Chancery Court noted that the issue of whether a mortgage servicer’s Notice of Intent to Foreclose (“NOI”) satisfies the FFA’s statutory mandate that notice be provided by the lender, had not yet been decided in New Jersey.  Ultimately, the Court held that, where an NOI identifies only the servicer and not the lender, the NOI is deficient and the foreclosure complaint should be dismissed without prejudice.

 


The FFA requires that the “lender,” which it defines 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,” identify its name and address in a properly served NOI.  In this case, the servicer, not the lender sent the NOI and identified the servicer’s address and telephone number.  Despite the lender’s argument that the NOI did not prevent the borrowers from being made fully aware of the situation, the Court held that “substantial compliance” is not enough under the terms of the FFA. 

 The Court also noted that where a servicer and a lender are involved, the NOI should state the names, addresses, and telephone numbers of both parties.

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