Archives for December 2014

Foreclosure Defense Strategies

foreclosure defense attorneysForeclosure Solutions

Homeowners must understand a foreclosure lawsuit is simply a lawsuit between a bank and the homeowners. Homeowners have rights and banks have an extremely heavy burden to meet to be successful in a foreclosure lawsuit. When a homeowner is served with a Summons and Complaint, he or she must submit a written Answer to opposing counsel and file the Answer with the court. The homeowner should be asserting affirmative defenses and counterclaims against the financial institution in his or her Answer. The homeowner can use the foreclosure lawsuit to obtain leverage against the bank and put pressure on them to grant a mortgage modification.

The Answer

When served with the foreclosure Summons and Complaint, the homeowner has twenty days to respond if served personally, and thirty days to respond if served by any other means other than personal service. The homeowner can either submit an Answer or in certain circumstances, make a motion to dismiss the lawsuit right off the bat. It is important to remember that lending institutions and foreclosure legal action by them are extremely heavily regulated by State, Federal and local laws and regulations. Foreclosure defense attorneys utilize these regulations of financial institutions in developing defenses for homeowners. In addition to making a motion to dismiss, and submitting defenses, a homeowner can submit what are called affirmative defenses. These are technical legal challenges on substantive grounds with regard to issues related to the foreclosure lawsuit. Examples of affirmative defenses are: lack of standing, robo-signing, dual tracking, failure to document the loan, improper notice, improper service, fraud, loan modification issues and many other affirmative defenses.

Countersuits

Counterclaims can be brought against financial institutions seeking monetary damages. These countersuits can be based on allegations the financial institution caused injury to the homeowner. There are also statutory violations and statutory penalties which can be brought against the financial institution. Unique facts related to each homeowner’s situation can be molded into an appropriate Answer with affirmative defenses and countersuits against the bank.

Discovery

After the Summons and Complaint is served and an Answer is submitted, a lawsuit enters what is called the discovery phase. During this phase the attorneys for the homeowner can force the bank to turn over documents, bank records, underwriting records, and other information to help the homeowner with his or her defenses. If the bank’s attorneys refuse to comply with discovery demands, motions to dismiss the lawsuit can be made to the court.

foreclosure lawyers on Long IslandDeveloping The Response To The Summons and Complaint In The Foreclosure Lawsuit

Some law firms who handle one or two foreclosures a year look at a research book and submit a standard response in their answer. This is a standardized document not tailored to the specific needs of the homeowner. Our law firm, which has represented hundreds of homeowners, does not use boiler plate responses. Each and every foreclosure lawsuit is analyzed and specific affirmative defenses and countersuits related to the circumstances in each and every case are submitted by our law office.

Foreclosure Settlement Conferences

New York State has mandatory foreclosure settlement conferences required to be attended by the attorney for the homeowner and counsel for the lender. At these settlement conferences both parties are expected to negotiate and act in good faith. Referees at these conferences try to motivate the financial institutions to grant the homeowner a mortgage modification. Even if the homeowner has been turned down several times before, he or she can still use the leverage of the mandatory foreclosure court conference to obtain a mortgage modification.

Motion for Summary Judgment By The Banks’ Lawyers

In almost every foreclosure lawsuit, at some point, the attorneys for the financial institution bring a motion for summary judgment. This motion basically states that there are no issues of fact involved in the case, no valid defenses and the bank should be entitled to a judgment of foreclosure without a trial or further hearing. This is where the affirmative defenses and discovery demands by the homeowner come into play. The affirmative defenses can be utilized to argue to the court what the bank has done wrong. The failure of the bank to provide necessary documents and other requested information by the lawyer for the homeowner can help to defeat the summary judgment motion.

Conclusion

Banks do not always win foreclosure lawsuits. The legal system is designed to see to it financial institutions don’t take advantage of homeowners. Our law firm’s single goal is to help homeowners fight the foreclosure, keep their home, and obtain mortgage modifications. We have been successfully representing homeowners for more than 45 years.homeowner advocates on long island

Predatory Loan Issues

foreclosure defense help in New YorkBAC Home Loans Servicing had brought a foreclosure lawsuit against Ramsay. BAC had moved for summary judgment claiming there were no issues of fact and therefore they should be entitled to summary judgment without the need for a trial. They also sought to strike Ramsay’s Answer and have a referee appointed to compute the sums due and owing BAC under the terms of the mortgage.

Ramsay contended BAC’s summary judgment application should be denied. Ramsay claimed there was predatory lending and discriminatory practices involved in making the mortgage by the original lender, Madison Home Equities.

Justice Bernard Graham found BAC did not establish a prima facie case allowing them to obtain summary judgment in their foreclosure proceeding. Judge Graham had questions concerning the relationship between Madison Home Equities and BAC. A question arose as to whether their business relationship would support the allegations made by Ramsay concerning predatory loan practices. In addition the court found Ramsay had offered plausible, reasonable evidence BAC’s decision to deny the mortgage modification was based on incorrect calculations by them. Judge Graham found denial of the mortgage modification may have been unreasonable and Ramsay may have been entitled to said mortgage modification.

Conclusion

The judge carefully reviewed the facts of this case and rendered an important decision supporting homeowner’s rights in this foreclosure case.helping homeowners stay in their homes

How to Qualify For a Mortgage

To watch today’s video blog, please click on the link below:

http://youtu.be/S1VQNNwAYj0

Elliot S. Schlissel is a foreclosure defense attorney. Elliot and his associates have been helping homeowners stay in their homes for more than 45 years.  The lawyers at the Law Office of Elliot S. Schlissel help their clients obtain mortgage modifications, defend foreclosure lawsuits, and counter sue banks.  Elliot can be reached for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.

Tips to Avoid Foreclosure

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Elliot Schlissel is a foreclosure defense lawyer.  He has been helping homeowners stay in their homes for more than 45 years.  He can be reached for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.

Bank Has No Standing, Summary Judgment Denied

foreclosure defense for Long IslandersHSBC Bank, USA, brought a foreclosure case against Thomas in Kings County Supreme Court. Thomas submitted an Answer in the foreclosure legal action with affirmative defenses. The affirmative defenses stated HSBC was not the owner of the note and the mortgage at the time the lawsuit was initiated. Therefore, they lacked standing to bring the lawsuit.

Thomas had taken out several mortgages. HSBC, in its summary judgment motion, claimed it had standing as it was assigned Thomas’s mortgage pursuant to an assignment by MERS. It also claimed it was in possession of the note at the time the action was commenced. They claimed since Thomas had not made his payments on the notes which were secured by the mortgage on the property, they had the right to initiate the lawsuit and they should be granted summary judgment. (Summary judgment grants the moving party an order for the relief requested in the complaint without the need for a trial).

Notes Not Assigned

Ms. Thomas, in her opposition to the summary judgment motion, claimed the notes were not assigned. She claimed the notes were not negotiated since there was an allonge (which is an amendment to a note) which did not comply with the Uniform Commercial Code section 3-202(2). This section of the Uniform Commercial Code requires an allonge be firmly attached to the note.

Supreme Court Justice Wayne Saitta agreed with Ms. Thomas’s argument. He found the assignment of the mortgage was insufficient as it only assigned the mortgage and did not include the notes and underlying debt. The judge found HSBC did not establish the note was negotiated prior to the commencement of this action. The negotiation of the note required physical delivery of the note. Judge Saitta ruled HSBC did not have standing to bring the lawsuit and summary judgment motion striking Thomas’s answer and affirmative defenses was denied.

Conclusion

If you are sued, it is important to have a detailed review of all of the facts and circumstances in the case with an experienced foreclosure defense lawyer. There are many defenses available in foreclosure lawsuits. There are numerous statutes, state and federal laws which protect consumers and mortgage holders.assistance for homeowners facing bankruptcy

The Truth Behind Many Refinancing Scams

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Elliot S. Schlissel is a foreclosure defense attorney.  He has more than 45 years of experience representing homeowners in mortgage modifications and foreclosure proceedings.  He can be reached for consultation at 516-561-6645, 718-350-2802, 1-800-344-6431 or by email to schlissel.law@att.net.

No Money Down Mortgages

foreclosure attorney on long islandIn 2008, there was a financial crisis in the United States. The economy wasn’t doing well, banks went out of business. Hundreds of thousands of Americans couldn’t meet their mortgage payments and their homes went into foreclosure. In 2014, six years later, we are still dealing with the aftermath of the issues created by giving mortgages to individuals who couldn’t afford to make the payments.

The no money down mortgage, to a minor extent, still exists in the United States. The no money down mortgage, which to a considerable extent, was responsible for the housing bubble that existed in the United States in 2008, does still exist in 2014. Although this type of mortgage is still available in the marketplace, it is hard to find.

What is a no money down mortgage? This is a mortgage where 100% of the purchase price of a house is financed. A no money down mortgage can allow people with virtually no assets to buy a house. However, these types of mortgages usually come with higher fees, and high interest rates.

Veterans’ Administration Mortgages

The Veterans’ Administration still has mortgage programs which allow veterans to purchase homes without putting money down. These programs, however, have funding fees of two or three percent. The fee is required to be paid in advance. This payment in advance actually creates a down payment of sorts.

There is also a program by the United States Department of Agriculture which offers no money down mortgage in rural areas. It should be noted that some suburban areas around large cities are still considered to be rural areas by the United States Department of Agriculture.

Credit Unions

While banks are for profit institutions, credit unions are not for profit institutions. An example of a credit union which offers a no money down mortgage is the Navy Federal Credit Union. The no money down mortgage given by the Navy Credit Union has a 1.71% funding fee. This funding fee must be paid at the time the mortgage is given.

What Mortgage is Right for You?

If you are in the market to buy a home, you should meet with a mortgage consultant. You should discuss your financial circumstances and make inquiry as to what type of mortgage is best for you and your family. This discussion should take into consideration your long term ability to make the mortgage payments to avoid having your home going into foreclosure.

helping homeowners stay in their homesElliot S. Schlissel is a foreclosure attorney. He represents individuals and families throughout the Metropolitan New York area whose homes have gone into foreclosure. Elliot and his staff of lawyers take the appropriate legal action to keep families in their homes and avoid losing their homes in foreclosure proceedings.

Fannie Mae Easing Mortgage Rules

mortgage modification attorneysFannie Mae is the largest mortgage government entity in the United States. In an attempt to bring more people into the housing market, it is in the process of taking action to expand the availability of mortgages with low down payment requirements. The new program by Fannie Mae will require mortgage insurance from private organizations on top of the down payment made by the purchaser.

Fannie Mae is a government backed entity which guarantees mortgages. It is regulated by the Federal Housing Finance Agency. Since the onset of the financial crisis in the year 2008, more than 3/4 of all mortgages in the United States have had some type of government backed guarantee behind it. Fannie Mae’s current requirements only allow borrowers to borrow up to 80% of the purchase price of the home. Under the new proposed program, Fannie Mae will back programs with down payments as low as 3% of the value of the home. However, all of these loans will require private mortgage insurance with regard to the portion of the 20% of the cost of the home that is not made as a down payment. The purpose of this new program is to bring more borrowers who have not accumulated significant amounts of savings back into the housing market.

Raising The Risk of Future Foreclosure

Studies have shown prospective home purchasers who make down payments of less than 20% have significantly higher default rates. When these homeowners default, their homes go into foreclosure. Low down payment loans were part of the problem which caused the huge mortgage crisis in 2008, which is still playing out today.

Conclusion

Helping prospective homeowners come into the housing market with smaller down payments gives more and more Americans access to the American dream, the ownership of a single family home. However, this program must be careful not to create a new mortgage bubble which may cause a deluge of foreclosures in the future.

foreclosure advocate for homeownersElliot Schlissel is a foreclosure lawyer. He fights foreclosure lawsuits and helps keep homeowners in their homes.

Mortgage and Foreclosure Schemes to Be Aware Of

To watch today’s video blog, please click on the link below:

http://youtu.be/MkK9tbxbO0U

Elliot S. Schlissel is a foreclosure lawyer.  He has been representing clients in foreclosure lawsuits and mortgage modifications for more than 45 years.  He can be reached at 516-561-6645, 718-350-2802, 1-800-344-6431 or by email schlissel.law@att.net.

Improper Service of a Summons and Complaint

Please click on the link below to watch today’s video blog:

http://youtu.be/5HCFfWKSuLk

Elliot S. Schlissel is a foreclosure defense attorney.  He and his associates have been helping homeowners fight foreclosure lawsuits for more than 45 years.  He can reached at 516-561-6645, 718-350-2802, 1-800-344-6431, or by email to schlissel.law@att.net.

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