Facing foreclosure? Petroff Amshen LLP is a New York consumer rights and foreclosure defense law firm. We find the defense in your file and take it to court.
Free case review. Confidential. Representation is by application.
Quick AnswerIn a Decision and Order dated August 28, 2026, Justice Menachem M. Mirocznik of the Supreme Court, Kings County, denied with prejudice a motion for summary judgment by Lakeview Loan Servicing, LLC, the loan servicer foreclosing on a Brooklyn property mortgaged by our client. Lakeview's only evidence was an affidavit from an Assistant Secretary of LoanCare, LLC, a subservicer it said was its attorney in fact. The court found three separate failures: no proof that LoanCare had authority on this loan, no proof that the 90-day notice required by RPAPL 1304 was mailed, and a copy of the RPAPL 1306 state filing with the borrower's phone number redacted. Lakeview's requests to strike our client's answer, for a default judgment and for a referee were denied as well.
In a New York foreclosure, summary judgment is the lender's shortcut. The lender tells the judge there's nothing left to try and asks for a foreclosure judgment on the papers alone. In our experience, that's how banks usually win these cases. When a lender loses that motion, it loses its fastest road to a sale.
Courts call summary judgment a "drastic remedy." The lender has to prove its case with admissible evidence, and when the borrower's answer raises New York's pre-foreclosure protections, the lender has to prove it followed those rules strictly.
Lakeview Loan Servicing, LLC started this foreclosure on September 1, 2023, against a Brooklyn property mortgaged by our client. His amended answer raised fifteen defenses, among them the duty to mail a 90-day warning notice and to report it to the state.
Lakeview moved for summary judgment. It also asked the court to strike our client's answer and appoint a referee to compute the debt. Its only evidence was an affidavit from an Assistant Secretary of LoanCare, LLC, a subservicer Lakeview said was its attorney in fact, meaning an agent authorized to act for it.
We took that affidavit apart, and the court found three separate failures. It held that each one was "independently dispositive," so any one of them would have defeated the motion.
First, authority. LoanCare's power of attorney covered only loans handled under a June 1, 2015 subservicing agreement. That agreement, the court wrote, "appears nowhere in the record." Without it, nobody could tell whether this loan was covered. "For this reason alone," the court held, the motion had to be denied.
Second, the 90-day notice. RPAPL 1304 requires the lender or servicer to mail the borrower a warning at least 90 days before suing, by certified or registered mail and by first-class mail. The notice here, dated May 10, 2023, was on LoanCare's letterhead. The witness never said she mailed it. There was no affidavit of mailing and no return receipt. She claimed only "familiarity" with Lakeview's practices and said nothing about LoanCare's. Lakeview's lawyers argued that LoanCare's acts were automatically Lakeview's own, and the court called that argument "specious." For the same reasons, Lakeview couldn't show it sent the default notice the mortgage itself requires.
Third, the state filing. RPAPL 1306 requires the lender to report the notice to the New York Department of Financial Services within three business days, including the borrower's phone number. The copy Lakeview filed with the court had that number redacted. The court held the omission was "not a mere technical defect or irregularity." Lakeview tried to fix it with a new copy in its reply papers, and the court refused to consider it.
From the court's Decision and Order of August 28, 2026. Each ground, it held, is "independently dispositive."
The record, in order: what the law requires, what Lakeview offered, and what the court held on each argument.
When the borrower's answer raises New York's pre-foreclosure protections, the lender has to prove, as part of its own case, that it followed them strictly. If it cannot, the motion "must be denied without regard to the sufficiency of the opposition papers."
Lakeview's only witness worked for LoanCare, not Lakeview. LoanCare's power of attorney covered only loans handled under a June 1, 2015 subservicing agreement, and that agreement was never filed. Without it, the court could not tell whether this loan was covered.
To prove the 90-day notice was mailed, a lender needs proof of the actual mailing or a witness with personal knowledge of a standard mailing procedure. Here the notice was on LoanCare's letterhead, and the witness claimed only "familiarity" with Lakeview's practices. The court held that "a mere vague familiarity is thus insufficient."
RPAPL 1306 requires a lender to report the 90-day notice to the state within three business days, including the borrower's last known telephone number. The copy Lakeview filed with the court had that number blacked out, and the court refused to consider a clean copy first offered in reply.
A foreclosure affidavit is only as good as the person who signs it and the papers behind it. Lakeview leaned on a witness from another company and a power of attorney tied to an agreement nobody ever produced. That wasn't enough.
Those defenses worked because they were in our client's answer, which forced Lakeview to prove strict compliance. If you've been served with a foreclosure, get your answer in and make sure it raises them. We'll review the proof line by line.
I could not recommend a better group than Petroff Amshen. If you find yourself in a situation that requires the assistance of attorneys, this is the firm.
After years of battling in court, thousands of dollars in legal fees, and quite a few subpar attorneys, we found Petroff and Amshen, who delivered winning results. They're incredibly easy to talk to, making the whole legal process feel less intimidating.
An effective firm with a minimum of fuss. When you need attorneys who actually do the work, you need these guys on your side.
Petroff Amshen does not take every case. Submit the application and a licensed New York attorney will review the matter directly. The case review is free and confidential.