There is a common misconception that filing for a bankruptcy, whether it be a Chapter 13 or Chapter 7 bankruptcy, is a solution to being sued in a foreclosure lawsuit. This is generally not the case. Although under certain limited circumstances bankruptcy may be helpful to you, you should consult with a foreclosure lawyer before considering filing a bankruptcy. Although my office has been involved in filing more than 800 bankruptcies, in most cases involving foreclosure, we do not recommend the filing of a bankruptcy in a federal bankruptcy court is the solution to the foreclosure problem. Foreclosure defense has become a niche legal practice. The litigating of foreclosures in New York State courts is becoming a more and more specialized area. Foreclosure defense lawyers over the past 20 years have developed unique skills in defending foreclosure lawsuits which put the banks on their heels and keep homeowners in their homes.
The Automatic Stay
The filing of a bankruptcy will immediately stop a foreclosure from moving forward. However, the automatic stay granted by a bankruptcy court is only a temporary solution to the underlying problem of the foreclosure. Most homeowners whose homes are in foreclosure are not only looking for a temporary solution to the problem. They are looking for a permanent solution. The filing of a bankruptcy is not necessarily the best route to take.
Foreclosure Lawyers
Financial institutions have engaged in numerous fraudulent, unethical, improper practices. There have been many lawsuits by attorney generals in all 50 states as well as the federal attorney general’s office with regard to these improper, fraudulent practices. The banks have been fined more than $100 billion for their improper and fraudulent practices.
There are numerous federal and state laws regulating bank practices. There are also procedural laws to protect consumers in the State of New York with regard to foreclosure lawsuits. There is an entire body of case law that has been developed which can be utilized to stop foreclosure lawsuits in their tracks, and in some situations, get these lawsuits dismissed.
Mortgage Modifications
New York State has a law which requires all financial institutions to negotiate in good faith at foreclosure court conferences with regard to mortgage modifications. The law is designed to help consumers stay in their homes. Unfortunately, the success rate in obtaining mortgage modifications in New York State is very low. However, pressure can be placed on a bank and its attorneys at these conferences to force them to make reasonable offers with regard to mortgage modifications.
Litigating the Foreclosure Case
In a foreclosure lawsuit, every individual has a right to ask for a jury trial. Jury trials provide homeowners with a constitutional level of protection. During the course of these trials evidence of robo-signing, sham foreclosure affidavits, improper bank practices, violation of federal Truth in Lending Laws, violation of New York State Consumer Protection Laws, and violation of procedural laws involving the initiation of foreclosure lawsuits can be put into evidence. If properly presented, these foreclosure lawsuits can be dismissed.
Conclusion
Although the bankruptcy may be a solution to some issues related to foreclosure proceedings, it is generally not the way to go. Homeowners facing foreclosure should fight the foreclosure in the New York State court they are sued in. The best way to deal with this issue is hire an experienced, dedicated foreclosure defense lawyer to see to it your rights are protected and that the banks have acted properly.
