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Elliot 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. He and his associates can be reached by calling 516-561-6645 or 718-350-2802 or by sending an email to schlissel.law@att.net.
To watch today’s video blog, please click on the link below:
Elliot S. Schlissel is a foreclosure defense attorney who helps homeowners fight foreclosure lawsuits and obtain mortgage modifications. He and his associates are available for consultation by calling 516-561-6645 or 718-350-2802 or send an email to schlissel.law@att.net.
To watch today’s video blog, please click on the link below:
Elliot 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. He and his associates can be reached by calling 516-561-6645 or 718-350-2802 or by sending an email to schlissel.law@att.net.
The Complaint
The purpose of the Complaint in a foreclosure lawsuit is to spell out the financial institution’s claims as to why they are entitled to relief. The Complaint specifically will discuss the nature of the mortgage and the promissory note. The Complaint will also provide the address and legal metes and bounds description of the property being foreclosed upon. It will usually state the homeowner had agreed to make payments pursuant to the terms of the note and mortgage and they defaulted on these terms. The Complaint will specifically name who owes the bank money and their interest in the property being foreclosed upon. In addition, the Complaint will usually have exhibits attached to it. These exhibits, at a minimum, will be the note and the mortgage.
The Complaint will also state the relief the lender asks for. This will usually be the right to sell the property and after the sale having the net proceeds after the costs of the sale apply to the balance due under the lender’s mortgage. The bank’s complaint may also have a request they receive a deficiency judgment in the event the proceeds from the sale of the home do not satisfy the entire balance due of their mortgage costs and disbursements.
The Lis Pendens
The lis pendens is a legal document the attorney for the financial institution files in the County Clerk’s office of the county where the property being foreclosed upon is located. This document serves to provide public notice to all future individuals obtaining liens and judgments as well as any potential interested purchaser of the property the property is in the midst of a foreclosure lawsuit and is encumbered by this foreclosure proceeding. The attorneys for the financial institution bringing the foreclosure proceeding usually files the lis pendens on or about the same time the Summons and Complaint are filed with the County Clerk’s office.
The Homeowner’s Response To Being Served In A Foreclosure Lawsuit
It is extremely important that the homeowner respond to the foreclosure lawsuit by filing a written Answer with the court and serving it upon opposing counsel. The Answer should contain denials, affirmative defenses, and in the appropriate situations, counter lawsuits against the bank. This is the homeowner’s opportunity to advise the court with regard to the bank’s behavior, the bank’s underwriting process, issues involving robo-signers, issues involving predatory lending, issues involving fraudulent bank action, issues involving violations of the Truth in Lending Law, federal and state banking laws, consumer protection laws, and numerous other issues.
If the homeowner does not file the written Answer as indicated above, it is considered that he has defaulted with regard to the foreclosure lawsuit. This means the homeowner will not get to advise the court that he or she has any defense whatsoever concerning the foreclosure lawsuit.
Consequences of the Homeowner’s Default
As stated above, the homeowner defaulting in the foreclosure lawsuit is a HUGE MISTAKE! This allows the attorneys for the financial institution to bring a motion for an Order of Reference. An Order of Reference is a request to the judge to appoint a referee to do an accounting as to how much is owed to the lender. This would include principle, interest, late charges, attorney’s fees, foreclosure costs, and all other expenses. After the Order of Reference is obtained the financial institution can then bring a motion for an Order asking for a default judgment in the foreclosure and sale of the home.
Sale of the Home in Foreclosure
If the judge signs the Judgment of Foreclosure and Sale, the attorneys for the financial institution then publish a Notice of Sale in a newspaper of public distribution a minimum of 30 days before an auction sale date. Thereafter, the referee can schedule an auction sale of the property. Technically, if the homeowner does not file an Answer to the Summons and Complaint in the foreclosure lawsuit, the attorneys for the financial institution are not required to give notice of the sale to the homeowner. However, even though they may not be required to do so, most law firms bringing foreclosure cases on behalf of banks provide notice to the homeowner of the specifics regarding the sale date, terms and location of the sale.
Filing the Summons and Complaint
The first step in the actual legal process in the court system involves the financial institution hiring a law firm which drafts a Summons and Complaint and files the Summons and Complaint in the County Clerk’s office of the County in which the home to be foreclosed on is located. Simultaneously with filing a Summons and Complaint most attorneys representing financial institutions also file a “Lis Pendens“. A lis pendens is notice to the world a lawsuit is pending in court involving the home. The lis pendens specifically tells all people who do a title search on the property the home is in litigation. This has a negative effect on the title to the home.
Service Of The Summons And Complaint
After the Summons and Complaint is filed, the attorneys for the financial institution receive an index number and a filing date for the Summons and Complaint. This is attached to the top right hand corner of the Summons. Thereafter, the attorneys for the bank hire a process serving company to serve the Summons and Complaint on the homeowner.
Methods of Service of the Summons
There are a variety of ways the service of the Summons can be made in the State of New York. The Summons can be actually put in the hand of the homeowner. It could also be left with a person of suitable age and discretion at their principle place of residence or place of business. In addition, the Summons and Complaint can be tacked to the door and mailed to the homeowner. It is extremely important the homeowner not ignore the Summons and Complaint. Once they are served they have twenty days to respond by filing an Answer with the court and serving a copy on opposing counsel, if served personally, and thirty days if served by any other means other than personal service.
After the process server serves the Summons and Complaint they draft an Affidavit of Service and file that Affidavit with the court.
Request for Judicial Intervention
The next step in the process is the filing of a “Request for Judicial Intervention”, which is commonly referred to as an “RJI”. The purpose of the RJI is to advise the court the lender’s attorney wants to schedule a mandatory foreclosure settlement conference.
There is currently a bill in the New York State Legislature to protect homeowner. The statute states that a bank or other financial institution cannot commence a foreclosure proceeding unless they have an original mortgage document. This means that a prerequisite for the financial institution to commence a foreclosure proceeding will be that it must allege and prove ownership of the note and the mortgage. These documents also must be filed by the bank, with the Summons and Complaint, when the foreclosure action is initiated.
Illegal Foreclosure Proceedings
There has been a series of cases in the past few years where banks who are not the mortgage holders have illegally foreclosed on homes and sold them at auction. This new law will codify the rulings of court cases that have held that institutions must have standing to initiate mortgage foreclosure proceedings.
When a homeowner receives the Summons and Complaint in foreclosure, they are usually frightened. Since homeowners are not lawyers and are generally not familiar with this area of the law, they do not know what their rights are. If a homeowner is sued by a bank that doesn’t own his or her mortgage, they have a right to claim that the bank doesn’t have standing to sue them. Unfortunately, if the homeowner doesn’t submit a written answer alleging lack of standing, this defense to the lawsuit is waived.
This new statute helps homeowners by making the homeowner’s defense that the bank has lack of standing to bring the foreclosure lawsuit non-waivable. This gives the homeowner a complete defense to the lawsuit. It also allows counsel for the homeowner to use this defense as a tactic in defending the foreclosure lawsuit.
Foreclosures can be stopped in a number of ways. The filing of an Answer on behalf of the homeowner stops the foreclosure case from going forward. There are specific defenses that can be alleged in the answers, such as predatory lending, the mortgage was defective, the foreclosure lawsuit is defective, and other real estate related defenses. Another foreclosure defense option is to file a Chapter 7 bankruptcy or a Chapter 13 bankruptcy. The filing of either of these bankruptcies gives the homeowner an automatic stay that immediately stops the foreclosure lawsuit from going forward.
Many homeowners are under the false belief that filing for a mortgage modification stops a foreclosure from going forward. This is incorrect! The mortgage modification process has nothing to do with the litigation in the courts of foreclosures. Most mortgage modification programs fail to provide the homeowners with the relief they are seeking. The large majority of homeowners are denied mortgage modifications! Feel free to call us for a free consultation regarding foreclosure defense and bankruptcy matters. Thank you for visiting our foreclosure blog.
There is a foreclosure crisis in America. There has been a lot of discussion as to where the blame lies for this crisis. From my point of view, the blame sits squarely with the financial institutions.
There are those who say that homeowners are responsible for the foreclosure crisis because they haven’t been paying their mortgages. Every foreclosure starts with a bank making a mortgage loan. Banks make money by giving mortgage loans to consumers. They make more money when they sell the loans to other banks. The banks that buy the loans make money when they contract with servicing companies to service these loans. When the underlying loans should not have been given to the consumer because the banks knew the consumer had no potential of making the loan payments, the banks bear the responsibility when the loans go bad.
Banks Knowingly Made Millions of Bad Loans
Banks made millions of loans in the United States to potential homeowners who had no potential of making the payments on these loans. They carelessly handled the paperwork and processing of these loans. Then when confronted with the mortgage crisis by President Obama, they said they would set up mortgage modification programs to help the beleaguered homeowners. Instead of setting up reasonable mortgage modification programs, the banks intentionally and incompetently set up under-financed, poorly managed programs that were doomed to fail. These programs, if they were properly and intelligently designed, operated and maintained, could have saved hundreds of thousands of salvageable mortgage loans.
Should you need help with a foreclosure, we are the law firm for you. We provide foreclosure defense for our clients. We handle mortgage modifications. Should you be served with a Summons and Complaint (legal documents in a foreclosure), we can represent you in these proceedings and keep you in your home. We also countersue banks for defective foreclosure lawsuits, predatory lending and bad faith. We attend foreclosure conferences and we litigate foreclosure proceedings on behalf of our clients. Feel free to contact us at 1-800-344-6431, 516-561-6645 or 718-350-2802.
