Archives for January 2016

Notable Foreclosure Cases of 2015

foreclosure attorneyThere are two significant foreclosure cases in 2015 which have a broad impact on foreclosure lawsuits. The first of these two cases is Faison v. Lewis. In this case the New York Court of Appeals, the highest court in New York State, held that when bringing a lawsuit to set aside a mortgage due to forgery in the chain of title there is no statute of limitations.

Statute of Limitations Defense

In the Faison case an action was brought by a homeowner to set aside a mortgage claiming the deed was forged. The financial institution involved plead the usual six year statute of limitations defense had passed since the deed was prepared. They also claimed that more than two years had passed since the homeowner discovered the alleged forgery.

The sum and substance of the court’s decision is that a forgery creates no rights with regard to the deed involved. Therefore there is no point in time that limits the challenge to the document. Homeowners who have been involved in transactions involving fraudulent documents applaud the court’s decision. It eliminates time barred defenses of the statute of limitations which can be raised by financial institutions.

United States Supreme Court Case

The second case of importance to homeowners decided in 2015 was the case of Jesinoski v. Countrywide Home Loans. This decision was made by the United States Supreme Court, the highest court in America. In this unanimous decision, the United States Supreme Court decided a significant issue under the Truth in Lending Act (hereinafter referred to as “TILA”). In this landmark decision, the United States Supreme Court held that all that is needed to be done to rescind a mortgage loan was to send a letter within three years from taking the mortgage out requesting the mortgage be rescinded. Up until this decision it was thought the only way to rescind a mortgage under TILA within the three year period was to commence a lawsuit seeking to rescind the loan on the basis of failure to conform to the disclosure requirements of TILA.

Homeowners now, who feel that there has been a violation of TILA by a lending institution, can simply send a letter to the lending institution rescinding the loan. Starting a lawsuit to set aside the mortgage loan is no longer necessary.

Conclusion

The Faison case decided by the New York State Court of Appeals and Jesinoski case decided by the United States Supreme Court in 2015 further increased the arsenal of defenses and actions that can be used regarding defending foreclosure lawsuits. Foreclosure defense lawyers continue to challenge the mistakes, frauds, omissions, false applications, bait and switch tactics, robo-signers, bad assignments, statute of limitations issues, failure to give notice issues, violations of State and Federal laws, violations of banking laws, violations of Truth in Lending Laws, violations of predatory lending laws, and numerous other defenses in helping keeping beleaguered homeowners in their homes. I look forward to continuing with this process.foreclosure defense lawyer

The Lack of Standing Defense

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

https://youtu.be/IXqt27nalqU

Elliot Schlissel is a foreclosure defense lawyer helping homeowners stay in their homes throughout the Metropolitan New York area.  He and his associates can be reached for consultation at 516-561-6645 or 718-350-2802 or send an email to schlissel.law@att.net.

Foreclosure Notice Requirement

foreclosure lawyerNew York Real Property Actions and Proceedings Law (RPAPL) Section 1304 requires financial institutions and loan servicing companies to provide homeowners, on residential property, at least 90 days notice before initiating a foreclosure lawsuit. The banks and/or their loan servicers must also provide the homeowner with the form of notice prescribed by the statute which provides among other things notice to the homeowner that a foreclosure lawsuit may be initiated. This notice is referred to as the 90 day pre-foreclosure notice.

The statute states the notice must be served “by registered or certified mail and also by first class mail to the last known address of the borrower, and if different, to the residence that is the subject of the mortgage.”

Compliance With RPAPL Section 1304

Many lenders seek to meet the compliance requirements of this section by submitting an affirmation by their attorney with a summary judgment motion that the certified and regular mailing requirements have been complied with. However the attorneys for the lenders have no personal knowledge these events actually took place. Therefore their affirmation that they took place is meaningless! Attorney’s affirmations should not be considered by courts to justify compliance with RPAPL section 1304.

Affidavits of Loan Service

Some lenders try to comply with RPAPL section 1304 by including in their motions for summary judgment representations by the loan servicer that the mailing requirements under RPAPL secion 1304 have been complied with. This is also nonsense! The loan servicer is usually hired by the financial institution long after the mailing requirement under this section needed to be complied with. The servicer therefore has no personal knowledge as to whether this section of the Real Property Law was complied with.

Conclusion

The failure of the financial institution to comply with RPAPL section 1304 provides a basis for an affirmative defense to a foreclosure lawsuit. A motion can be made by the homeowner’s attorney to dismiss the lawsuit for the failure of the financial institution to comply with this section. In other situations it can be used to cause a court to deny a summary judgment motion on behalf of the bank because they have not fulfilled the prerequisites necessary to bring the foreclosure lawsuit.

New York foreclosure defense lawyerElliot S. Schlissel is a foreclosure lawyer representing homeowners throughout the Metropolitan New York area who are behind on their mortgages, seeking mortgage modifications, or have been served with notices concerning foreclosures. The office offers free consultations.

Defective Foreclosure Lawsuits

foreclosure lawyer New YorkHas the bank initiated a foreclosure action against you? How do you know the bank has acted appropriately with regard to fulfilling their obligations as a financial institution? The question then becomes, is the foreclosure lawsuit defective?

There are a variety of reasons that a bank’s foreclosure proceeding against you may be defective. The first issue is whether the bank has all of the proper documents to have legal standing to foreclose on your property. Another issue is how significant misrepresentations, predatory lending issues, or issues involving sub-prime mortgages affected your case.

Exposing Defects in Foreclosure Cases

How do you expose a defect in a foreclosure case? To start with, all of the documents related to the mortgage need to be reviewed. In addition, a detailed Answer to the Summons and Complaint needs to be filed with both the court and opposing counsel. Numerous affirmative defenses concerning potential defects in the case need to be alleged. Thereafter a document demand must be made seeking copies of all of the documents the bank has in its file related to this matter. In addition, interrogatories or bills of particulars can be served on the bank asking a variety of questions concerning the origination of the mortgage, the term of the mortgage and various issues pertaining to the mortgage.

Sloppy Paperwork by Banks

When the real estate industry was booming in 2006 through 2009, banks became overwhelmed with the number of applications being submitted to them. In many situations, their paperwork was sloppy, unprofessional, improperly handled, involved misstatements, false statements, and applications submitted by mortgage brokers that did not reflect the financial circumstances of the prospective mortgagor. Underwriters often lost documents concerning mortgage applications. They also misplaced documents or simply incorrectly handled the underwriting of the mortgage. It is the job of the foreclosure defense attorney to bring all of these problems to light when a bank seeks to foreclose against the homeowner. It is then presented to a judge with the hope the judge will carefully review the situation and reach the conclusion the bank has acted improperly.

Legal Rights and Options

So how do you protect your legal rights? What are your options? The only way you will find an answer to these questions is to consult with an experienced, dedicated foreclosure defense attorney. You can call our office for a free consultation. Our phones are monitored 24/7. Our office phone numbers are 516-561-6645 and 718-350-2802.New York foreclosure defense lawyer

The Statute of Limitations Defense

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

https://youtu.be/tIHRQQ2WhdY

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.

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