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Bankers Trust Company of California, N.A. v. Dayan

A-1673-00T3 (N.J. Super. App. Div. 2001) (Unpublished)

FORECLOSURE—The Fair Foreclosure Act does not require that a foreclosing lender provide a detailed list of agencies that provide financial assistance programs; identifying where a borrower may find such a list is sufficient.

A borrower defaulted on a mortgage note and the lender filed a foreclosure complaint. The borrower answered by stating that the “notice of intent to foreclose failed to comply with the Fair Foreclosure Act.” The Act requires that lenders give borrowers clear and conspicuous notice of “the possible availability of financial assistance for curing a default from programs operated by [the government]... This requirement may be satisfied by attaching a list of such programs promulgated by the commissioner; ... .” The actual notice told the borrower that such counseling and financial assistance might be available from HUD and gave a telephone number for the borrower to call if it wished to obtain a list of HUD-approved counseling agencies. Consequently, the borrower’s view was that because the lender did not attach a list of such programs, the lender failed to comply with the statute. According to the lower court, that argument “clearly constitute[d] form over substance.” The statute only says that its requirements “may be satisfied” by attaching a list. “It is a recommendation, it is not a requirement.” The Appellate Division agreed.


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