By: Kate Cavallaro and Nicholas M. Moccia, Esq.
Just over a year ago, Section 282 was added to an act amending the Real Property Law. This amendment is also known as enacting the “access to justice in lending act.” Section 282 gives borrowers the right to recover attorney’s fees in actions or proceedings arising out of foreclosure of residential property. The purpose of this bill is to allow borrowers in a foreclosure proceeding access to legal representation by providing that mortgage agreements which allow a prevailing lender to recover attorneys fees in a foreclosure proceeding shall be read to allow prevailing borrowers to recover attorneys fees as well, thereby enabling borrowers with meritorious defenses to foreclosure to obtain the legal representation necessary to assert those defenses, similar to the reciprocal attorneys fees rights given tenants by Real Property Law Section 234.
The notes on this section of the act provide that “any waiver of this section shall be void as against public policy. For the purposes of the act, “residential real property” is real property improved by a one to four family residence, a condominium that is occupied b the mortgagor or a cooperative unit that is occupied by the mortgagor.