Perhaps unexpectedly, a recent case says “yes” and this is a scary (but salutary) ruling for any mortgage holder—although it is appropriate to add that the reckoning could have been avoided if the mortgage holder was more careful in paying attention to its situation. [Bank of New York v. Terrapin Industries, LLC, 189 A.D.3d 620, 139 N.Y.S.3d 149 (1st Dept. 2020).]
There is an immediate perspective as to why laches as a possible defense is particularly worthy of consideration. While in significant commercial cases borrowers’ defenses tend to be related to the realities of the transaction (whether foreclosing plaintiffs deem them valid or not), in the residential situation, candor elicits the observation that “shotgun” defenses are oft-encountered. It is not unusual for answers in residential foreclosure cases to contain 10, 20 or even 30 or more affirmative defenses.
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