Archives for June 2015

Various Fraudulent Mortgage Transaction Issues – Part II

legal help for homeownersFraudulent Mortgage Assignments

There are a variety of types of fraud which banks engage in related to the assignment of mortgages. Sometimes the assignment contains signatures of individuals claiming to be corporate officers of the bank and/or mortgage company when in fact they were never employed by these institutions. On other occasions, mortgage assignments are signed by individuals who claim to be corporate officers of financial institutions which went out of business or filed bankruptcy many years earlier. There are also many examples of assignments of mortgages which are notarized by notaries who were actually in a different state at the time of the transaction. These notaries never witnessed the signatures of the individuals they notarized.

Ownership of the Note and Mortgage

There is a United States Supreme Court Case which stands for the proposition the foreclosing institution must own the note and mortgage at the time of the initiation of the foreclosure lawsuit. The case is Carpenter v. Longan, 83 U.S. 271. In this case, the United States Supreme Court stated “plaintiff failed to show that it owned the mortgage at the time the complaint was filed.” As a result the court ruled the plaintiff financial institution did not have standing in the foreclosure case. The financial institution must not only be the holder and owner of the original note, but also must be the holder and owner of the mortgage as well. In Carpenter v. Longan, the United States Supreme Court held the plaintiff lacked standing to initiate and prosecute the foreclosure case and therefore the case was dismissed.

New York foreclosure defense attorney IslandElliot S. Schlissel, Esq., is a foreclosure lawyer representing homeowners throughout the Metropolitan New York area. He defends homeowners whose homes are subject to being foreclosed upon. He also helps homeowners obtain mortgage modifications.

Various Fraudulent Mortgage Transaction Issues – Part I

foreclosure defense help in New YorkPhony Appraisals

Many fraudulent mortgage transactions start out with the appraiser coming back with an inflated value of the home for which the purchaser seeks to obtain a mortgage. In cases where the purchaser actually couldn’t afford the home to begin with, the mortgages they were offered were mortgages involving negative amortization. Negative amortization refers to a situation where instead of paying down the mortgage, a portion of the interest gets added to principal and the homeowner ends up owing more money than they started out borrowing.

Truth in Lending Law Violations (“TILA”)

The Truth in Lending Law requires banks to abide by a certain ethical code of conduct. Predatory lending is defined under the Truth in Lending Law as any pattern of conduct in which the actual lender is hidden through subterfuge. Violations of the Truth in Lending Law allow the damaged party to recover their attorney’s fees, and treble damages.

When purchasers attend a closing they sign numerous documents. The two most significant documents are the note and the mortgage. The note is an I Owe You. It is documentation that a debt exists. However, the evidence of the existence of the debt is subject to being rebutted. The mortgage creates a lien pursuant to a written contract. The contract is a contract to enforce the note. If the note is invalid, is unenforceable or can be rebutted, in theory, the mortgage should be able to be set aside. Unfortunately, the courts in New York currently do not see things this way.New York foreclosure defense attorney Island

The Foreclosure Process: The Initial Steps

foreclosure defense for homeownersThe first step in a foreclosure proceeding is the bank sending the homeowner a letter accelerating the mortgage. The acceleration letter advises the homeowner the financial institution (lender) will call in the entire balance of the mortgage, which represents the total amount due, unless the homeowner becomes up to date on his or her mortgage payments by a specified date. Most banks send an acceleration letter after the homeowner falls approximately three months behind on their mortgage payments. However, there is no specific rule which requires a bank to send an acceleration letter when the homeowner is three months behind.

Falling Behind On Your Mortgage Payments

The homeowner technically defaults on the payment of the loan on their home when they become one month late on their mortgage payments. However, as indicated earlier in this article, acceleration letters are almost never sent out prior to the homeowner being three months behind on their mortgage.

Ninety Day Pre-Foreclosure Filing Notice

New York State has a statute which requires the financial institution holding the mortgage to send out a notice a minimum of ninety days before they initiate a foreclosure legal action by filing a Summons and Complaint in the County Clerk’s office of the County in which the home is located. There are very specific rules and notice requirements concerning the ninety day pre-foreclosure filing notice. This notice also must list at least five not for profit organizations which can provide information or counseling to homeowners with regard to the problems they are having in making their mortgage payments.New York foreclosure defense attorney Island

How A Home Is Sold In Foreclosure

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

http://youtu.be/uhj4y6Vf62Q

Elliot S. Schlissel is a foreclosure lawyer who has been representing homeowners for more than 45 years.  His goal is to keep homeowners in their homes.  He defends homeowners in foreclosure lawsuits and helps his clients in obtaining mortgage modifications.  He and his associates can be reached for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.

The Note and The Mortgage

foreclosure and real estate lawyer in New YorkIf you have purchased a home and financed it through a financial institution, you attended a closing. At that closing, you executed numerous documents. One of those documents is the note. The note is simply an I owe you. The note basically states you are borrowing money from a lender and you promise to pay it back. The note includes the terms of repayment, interest rates, the term of the loan and information concerning late charges and other issues.

The Mortgage

The mortgage and note are two separate documents completely. The mortgage is an agreement which allows the financial institution, who is the lender concerning your property, to have a security interest, or lien, on your property. Another way of looking at the mortgage is you pledge your home as collateral to secure the financial transaction which allows you to buy your home. If the bank does not get paid, they go after the collateral, to wit, your home, to take it back and sell it at auction to repay the note which documents the loan you took from them.

New York foreclosure defense attorney IslandElliot S. Schlissel is a foreclosure lawyer. He has helped hundreds of New Yorkers stay in their homes. He fights foreclosure lawsuits throughout the Metropolitan New York area and helps his clients obtain mortgage modifications. Elliot and his staff of attorneys can be reached 7 days a week.

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