Foreclosure Defense Attorneys

VIDEO: Statute of Limitations Defense for Foreclosure

Elliot discusses another case in which the statute of limitations was used as a defense for foreclosure.

Foreclosure Dismissed: Bank Failed to Comply with 90 Day Notice Requirement

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In a case before Supreme Court Justice Peter Sweeney sitting in Kings County, he dismissed the bank’s foreclosure lawsuit. The bank had brought a summary judgment motion requesting an order that the house be sold at public auction, in addition they sought an order of reference with regard to this mortgage. The mortgage was on a two-family home owned by the Mitchells. The Mitchells brought a cross-application. They asked Judge Sweeney to dismiss the case. They claimed the bank had failed to serve them with Real Property Actions and Proceedings Law Section 1304’s 90 day notice prior to bringing the foreclosure lawsuit. The bank submitted evidence by their process server which alleged he had personally served Mitchell with the 1304 Notice when he served the Summons and Complaint. He claimed this took place at Mitchells’ residence.

No Personal Service

Mitchell in his opposing papers and cross-motion claimed he was never personally served with the 1304 Notice or the Summons and Complaint in this foreclosure lawsuit. He claimed he was more than a mile away at a local store at the time the alleged personal service took place by the process server.

Hearing Ordered Regarding Process Server’s Affidavit

Justice Sweeney found Mitchell submitted proof which contested the process server’s affidavit. Justice Sweeney therefore ordered a traverse hearing to determine whether service of process was properly effectuated. A special referee was appointed to supervise this proceeding. The referee found the bank’s claim that Mitchell had waived the bank’s failure to comply with Real Property Action and Proceedings Law Section 1304 was untrue. The special referee found a lender’s failure to comply with the 90 day notice provisions of Section 1304 is not an affirmative defense the defendant had to plead in his or her answer. Defendant Mitchells’ cross-motion to dismiss was therefore granted.

Attorney Elliot Schlissel


Banks have a definitive obligation to provide homeowners with 90 day’s-notice prior to initiating foreclosure lawsuits.

The Statute of Limitations Expired: Case Dismissed!

In a foreclosure lawsuit in Kings County before Justice Johnny Bayes, a set of facts was presented to the court concerning issues involving a statute of limitations defense and a mortgage modification. The Bank of New York had initiated a foreclosure lawsuit and thereafter brought a motion for summary judgment (a motion claiming there are no issues of fact). The defendant in this case, McQueen, brought a cross application for summary judgment. She also asked for a declaratory judgment which argued the statute of limitations had run on the mortgage and therefore the mortgage was now unenforceable.

Bank of New York’s Defense

The Bank of New York claimed McQueen had submitted a mortgage loan modification application and correspondence requesting information about the mortgage. The Bank of New York asserted these two items tolled (stopped) the running of the statute of limitations on the mortgage. It should be noted the Bank of New York rejected the mortgage modification application. However, even after they rejected the application, they alleged in their court documents the modification application and the correspondence resurrected the expired statute of limitations and also constituted a further acknowledgment of the debt.

Court Doesn’t Buy Bank of New York’s Defense

Justice Baynes stated that the request for a mortgage modification was simply a settlement offer. Settlement offers do not contain an acknowledgment of liability. Therefore, settlement offers such as mortgage modifications are not admissible at trial as evidence of liability. Justice Baynes ruled the application for request for a modification was not an offer to pay the mortgage. The letters did not constitute a promise to pay by McQueen. Bank of New York’s motion was denied and McQueen’s cross motion was granted. The Judge ruled that the statute of limitations had run on the mortgage and the mortgage was therefore unenforceable.

Elliot S. Schlissel and his associates have been helping homeowners stay in their homes and fight foreclosure lawsuits for more than 35 years.

VIDEO: Tax Foreclosure

Elliot Schlissel discusses tax foreclosure.

Non-Bank Servicing Companies Creating Problems for Homeowners

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Banks have been using non-bank servicing companies for the past few years. These servicing companies are not regulated by the modest consumer protections built into the National Mortgage Settlement Law of 2012. Non-bank servicing companies are known to take a long time to review mortgage modifications. They wrongfully deny mortgage modifications on a regular basis. The investors who buy the loans from the non-bank servicing companies are not interested in helping homeowners save their homes by working out amicable mortgage modifications.

Investors and Mortgage Modification

Private investors are becoming more involved with regard to the ownership of delinquent mortgages. In the year 2015 non-bank servicing organizations served approximately a quarter of the $10 trillion in outstanding mortgages on residents in the United States. This percentage of mortgages being serviced by non-bank servicing companies has expanded in both 2016 and 2017.

Oversight of Servicing Companies

Attorney Elliot Schlissel

Senator Elizabeth Warren of Massachusetts and Eliza Cummings of Maryland have looked into the need for oversight with regard to non-bank mortgage servicing companies. They recently made a joint statement “harm to consumers such as problems or errors with account transfers, payment processing, and loss mitigation processing have developed related to non-bank mortgage servicing companies.”

There are approximately 100,000 mortgage foreclosures going on in the State of New York. Homeowners often feel overwhelmed when dealing with non-bank servicing companies. The best way to deal with issues involving these servicing companies is to hire an experienced foreclosure attorney to represent you on these matters.

Elliot S. Schlissel and his associates have been representing homeowners throughout the Metropolitan New York area with regard to foreclosure cases for more than 35 years. They work hard to help keep their clients in their homes.

Bank’s Summary Judgment Application Denied

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In a case before Justice Elliot sitting in Supreme Court in Queens County, HSBC Bank brought a motion for summary judgment (a motion for a judgment of foreclosure claiming there are no issues that need to be tried) against Murphy in a foreclosure lawsuit. HSBC claimed they had possession of the original note with the proper endorsement. They therefore claimed they were the owner of the note and mortgage. They took the position that Murphy had not made his monthly mortgage payments and was therefore in default regarding his contractual obligations.

Bank Lacks Standing Defense

Murphy claimed in his defense the bank lacked standing to bring this lawsuit. He argued that a copy of the original note with a blank endorsement annexed to its motion and the affidavits dealing with the motion were invalid. Murphy claimed the endorsement was on a separate piece of paper which amounted to being on a blank page.

Justice Elliot found the affidavit of the bank’s servicer attesting to physical possession of the original note was not sufficient. He found the endorsement did not provide significant evidence that it was “firmly affixed thereto to become part thereof.” HSBC’s servicer did not provide sufficient information with regard to the original note’s condition. Therefore, Justice Elliot ruled the bank was not entitled to summary judgment on the case and the case would continue.

Attorney Elliot Schlissel

Elliot S. Schlissel and his associates have been representing clients in foreclosure cases throughout the Metropolitan New York area for more than 35 years.

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Reverse Mortgages: Should You Consider One?

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Reverse mortgages are usually taken out by seniors to unlock the equity in their homes. However, there are pros and cons as to whether a reverse mortgage is the appropriate thing to do.

Facts About Reverse Mortgages

Reverse mortgages are mortgage loans taken out by individuals at least 62 years of age. The theory behind a reverse mortgage is that the equity in the home will support the reverse mortgage and the mortgage will be repaid when the homeowners die. Reverse mortgages do not have to be paid as long as one of the borrowers is still living in the home. The funds received from the reverse mortgage can be taken in a lump sum, as a line of credit or in monthly payments.

Reverse Mortgages vs. Traditional Mortgages

In a traditional mortgage the homeowner takes out a mortgage and then makes monthly payments until the mortgage is paid in full. The monthly payment represents both the payment of principal and interest due and owing on the principal. With regard to reverse mortgages, the homeowners do not have to repay the reverse mortgage on a monthly basis. It is usually paid after both of the homeowners die or both of the homeowners are no longer living in the home.

Benefits of a Reverse Mortgage

One of the most significant benefits of a reverse mortgage is the home will not be foreclosed upon and the homeowners will not be forced out of their home because they can’t make monthly payments. Reverse mortgages give homeowners peace of mind knowing they no longer have a monthly payment they need to make to the bank.

Some Disadvantages of Reverse Mortgages

Banks are usually very conservative with regard to how much money they will provide a homeowner with pursuant to a reverse mortgage. When the homeowners die, the homeowners’ heirs will either have to have the home sold to pay back the reverse mortgage or they will have to come up with the balance due on the reverse mortgage. Reverse mortgages generally have higher interest rates than traditional mortgages.


If you are considering a reverse mortgage you should first shop around to several different financial institutions. You should compare the interest rates offered on the reverse mortgage from each of these institutions. If you are not sure as to whether a reverse mortgage is the appropriate avenue for you to pursue, you can consult with an elder law attorney to help you make this decision.Attorney Elliot Schlissel

Elliot S. Schlissel, Esq. is a member of the National Academy of Elder Law Attorneys representing seniors throughout the Metropolitan New York area.

VIDEO: Reverse Mortgage Foreclosures

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