Archives for June 2014

Is Bankruptcy the Solution to Stopping Foreclosure Proceedings?

June 26, 2014 by Elliot S. Schlissel

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.

Foreclosure Truths and Falsehoods – Part II

June 24, 2014 by Elliot S. Schlissel

Fighting The Foreclosure Lawsuit

3. Can I fight a foreclosure case on my own or do I need a lawyer?

You technically do not need to hire a lawyer to fight a foreclosure case. In theory you can represent yourself. But let’s look at the facts.

The financial institutions bringing the foreclosure proceedings are multi-billion dollar institutions. Banks such as Chase Manhattan are worth as much as a trillion dollars. The lawyers the banks hire to bring the foreclosure lawsuits specialize in foreclosure litigation. Many of these law firms have been operational for more than 25 years and are experts in handling foreclosure litigation. Unless you are very knowledgeable and experienced in the law regarding foreclosures, it would be a terrible mistake to try to defend yourself in a foreclosure proceeding. Experienced foreclosure lawyers have expertise in litigating foreclosure cases. Our law firm has been representing clients in foreclosure cases for more than 20 years. We have scores of cases pending, and many of our clients have been in their homes more than 6 years since the foreclosure proceedings were initiated against them.

Trying to represent yourself at a foreclosure proceeding, although legally appropriate, is almost always a mistake. You need to retain the right lawyer. You should look for a law firm that has extensive experience in representing clients in foreclosure lawsuits.

Loan Modifications

4. Are loan modifications the answer to foreclosure problems?

Loan modifications are the answer for many families’ foreclosure problems. However, they do not work if you have lost your job, are disabled, or have very little cash flow. Banks are not social service organizations. They are in business to make money. They make the mortgage loans to homeowners with the hope of making a profit on these loans.

There are various mortgage modification programs. However, the success rate consumers have in obtaining mortgage modifications runs approximately 20%. Sometimes the best way to motivate a bank to provide you with a mortgage modification is to aggressively litigate the foreclosure case and let them know you are not going to take this matter lying down. Foreclosure defense lawyers utilize the mandatory foreclosure conference parts to press the financial institutions into providing the clients with reasonable mortgage modifications. The failure of a financial institution to negotiate in good faith can be used as a defense in the foreclosure lawsuit.

Walking Away From Your House

5. Your loan modification was denied, should you turn over your home to the bank?

False!

Approximately 80% of the people who apply for loan modifications don’t receive permanent loan modifications. This does not mean you are going to be forced out of your home in the near future. Sophisticated foreclosure defense law firms file answers with numerous affirmative defenses and a variety of countersuits against the financial institutions. They can also demand documents, records and other material from the banks which may be embarrassing or may show the banks have violated federal and state laws. This can put further pressure on financial institutions to grant the client’s mortgage modifications.

Facing Foreclosure: What Do You Do?

6. What should I really do if I am behind on my mortgage and facing foreclosure?

Simply stated, call us. The Law Offices of Schlissel DeCorpo have been helping New Yorkers fight foreclosures and stay in their homes for more than two decades. We have an unparalleled record of success. Our law firm is known to the bank attorneys, the court personnel, and the judges. Call us at 1-800-344-6431, 516-561-6645, or 718-350-2802 for a free consultation. We will keep you in your home!

Filed Under: Foreclosure, Foreclosure Defense Tagged With: defective foreclosure lawsuits, defective mortgages, foreclosure attorney, foreclosure defense attorneys, foreclosure proceedings, New York foreclosure attorney, New York foreclosure defense lawyers

Foreclosure Truths and Falsehoods – Part I

June 22, 2014 by Elliot S. Schlissel

Foreclosure Summons and Complaint

1. If you are served with a summons and complaint in a foreclosure case, all you have to do is later show up at court at the mandatory arbitration court conference. This is not true!

If you are served with a summons and complaint in a foreclosure lawsuit, you have 30 days to submit a written answer to opposing counsel and the court, if served by any other means than by personal service. If the summons and complaint is personally put in your hand, you have 20 days to submit a written answer. If you do not answer it, you are considered to have defaulted. In the event you default, the financial institution’s lawyers, can move forward with the foreclosure case without you participating in it.

Under the law that exists in New York today, you would still be eligible to appear in court at a mandatory foreclosure mediation conference. However, you shouldn’t get your hopes up real high of it being successful and obtaining a mortgage modification. 4 out of 5 people who apply for mortgage modifications are turned down. Even those who are accepted for temporary mortgage modifications should not start celebrating. More than half of the time after the temporary modification period is over, the banks reject entering into a permanent mortgage modification.

You Will Be Thrown Out Of Your House

2. If your house is foreclosed on, you will most likely be thrown out of it in the near future. This is not true!

The foreclosure process can be a long and arduous process. If a foreclosure proceeding is brought against you, you can fight the lawsuit. There are numerous federal and state statutes which protect consumers in foreclosure lawsuits. There are issues involving robo-signers, bad assignments, failure to serve appropriate documents, and failure to effectively plead the case, which can be used as defenses against banks. Banks can also be countersued in the foreclosure proceeding for their violating state and federal laws and for the failure to act appropriately. If served with a foreclosure lawsuit do not vacate your home! You can continue to live in your home. There are remedies available to you!

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: defective foreclosure lawsuits, foreclosure attorney, foreclosure defense, mortgage modifications, New York foreclosure attorney

Wrongful Foreclosures

June 19, 2014 by Elliot S. Schlissel

There have been a significant number of lawsuits brought by attorney generals in states throughout the country as well as the federal attorney general’s office involving numerous financial institutions acting inappropriately with regard to foreclosure lawsuits. Lenders such as Bank of America, JP Morgan Chase, PNC Financial Services Group, Wells Fargo and GMAC mortgage company, have actually admitted to improprieties in the way these financial institutions handled the processing of foreclosure paperwork. These financial institutions and many others, including many mortgage servicing organizations, failed to verify the court documents they used to justify foreclosing on homes. In numerous situations, individuals referred to as “robo-signers” signed hundreds of documents which they did not read or were not familiar with. Far worse than that, many of these robo-signers were signing foreclosure documents for financial institutions they were not affiliated with.

Your Home

A family’s home is usually its most valued possession. No family should be forced from their home as a result of faulty bank practices. If your home has been foreclosed upon, is in the process of being foreclosed on, or is even being threatened with a foreclosure, it is important that you seek legal representation as soon as possible. There are numerous grounds to challenge foreclosures, numerous affirmative defenses, and potential lawsuits you may have available to you against the bank for financial damages. If you are the victim of a wrongful foreclosure lawsuit you owe it to yourself and your family to see to it your legal rights are protected.

Mortgage Servicing Companies

Many banks that make home loan mortgages do not service their loans. They either assign the loans to other financial institutions or they subcontract out the responsibilities to service the loans to mortgage servicing companies. Over the last 6 to 8 years, mortgage servicing companies have been overwhelmed with the large number of foreclosure cases they were required to service. Mortgage servicing is a high volume industry. The mortgage servicing companies sometimes hire employees with little formal training in handling these mortgages. In addition, many of them have inadequate supervision and have cut corners to make themselves more profitable. The unusually high number of mortgage defaults has added to this problem by overwhelming some of the mortgage servicing agencies. An example of the irregularities involved in servicing mortgages can be found with regard to Wells Fargo, one of the largest banks in the country, admitting to thousands of mistakes made in foreclosure documents. However, in spite of Wells Fargo’s admissions, they never took any action to stop those foreclosures based on mistakes and fraudulent documents from moving forward.

Robo-Signing

It was indicated earlier in this article the term robo-signer refers to individuals signing documents without authority and without reading these documents. During the course of depositions taken by foreclosure defense lawyers, some robo-signers have admitted to signing more than 10,000 foreclosure affidavits during a month. Most of these affidavits indicated the robo-signers actually personally reviewed the files and determined the paperwork they were signing was correct. During the course of depositions, these workers acknowledged there was virtually no time to even look at the files. They just simply signed the documents claiming to have reviewed files they never looked at.

Are You The Victim of Predatory Lending or
Improper Bank or Foreclosure Practices?

If you feel you are the victim of predatory lending or improper bank or foreclosure practices you should immediately retain a qualified law firm to investigate the situation. There are a variety of remedies available to you. You can even take legal action under certain limited circumstances to set the mortgage on your home aside. It may be that the mortgage loan against your home is unenforceable. If you feel you have grounds to challenge a mortgage or foreclosure practice, call our law firm for a free consultation. Our phones are monitored 24/7. We can be reached at 1-800-344-6431, 516-561-6645, or 718-350-2802.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: defective foreclosure lawsuits, foreclosure, foreclosure proceedings, Mortgage Modifications attorney, New York foreclosure defense lawyers

Long Island Home Sales Going Down But Prices Going Up

June 17, 2014 by Elliot S. Schlissel

The number of homes that were sold on Long Island during April of 2014 went down in relation to April of 2013. The number of transactions were approximately 20% lower than it was for April of 2013. One of the reasons given for the reduction of home sales was the fact that it was a long, cold winter. Prospective homeowners were kept off the market by the problems caused by the weather.

Home Prices Go Up

Even though less homes were sold in April 2014 than in 2013, the median price for home sales in Nassau and Suffolk Counties went up. The median price for homes in Nassau County in April of 2014, was up almost 6% from 2013, with a price of approximately $410,000. In Suffolk County, the median home price was approximately $301,000, with an annual gain of only 0.07%.

Mary Ann Murphy, a broker with Call Murf Real Estate in Lindenhurst, has recently stated the areas on Long Island which were subject to being devastated by Superstorm Sandy have been seeing much more sales activity. Although these properties are selling at a discount, they are starting to move.

Real Estate Brokers Expect a Busy Summer Selling Season

Brokers are anticipating the market will rebound during the summer months this year. In both Nassau and Suffolk Counties, it still takes approximately a year for the average home to be sold. In a more balanced real estate market, there would only be a six month delay for the average home to be sold.

About the Author

Elliot S. Schlissel is an attorney with more than 45 years of experience representing homeowners regarding fighting foreclosure lawsuits, obtaining mortgage modifications, and protecting homeowners’ rights. He offers free consultations to prospective clients.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: foreclosure attorney, mortgage modifications, real estate market

Avoiding Foreclosure

June 15, 2014 by Elliot S. Schlissel

Foreclosure for many homeowners is a threatening, harrowing experience they seek to avoid. If a homeowner fails to make mortgage payments, foreclosure will most likely occur. Foreclosure is the beginning of the initiation of legal proceedings by a lender to take back the property used to secure the loan. The property is usually the parties’ home. At the end of a foreclosure proceeding, if the family is still in their home, the purchaser of the property can bring an eviction proceeding in the landlord tenant court to have the family removed from their home.

Should the home be sold at a foreclosure sale for less than the amount of the mortgage, interest, late fees, and other penalties, the financial institution who held the mortgage can move forward to obtain a deficiency judgment against the mortgagors for the amount that is still owed to them after they receive the proceeds of the foreclosure sale.

What is the best way of dealing with foreclosure? Avoid it!

Falling Behind on Your Mortgage

If you are falling behind on your mortgage, you should contact your bank. You should ask your bank whether they have any programs that will be helpful to you in dealing with temporary financial setbacks. Most lenders have a variety of programs available to homeowners suffering from short term financial difficulties.

If you receive letters from your financial institution or threats of foreclosure by attorneys for the financial institution, you should carefully read these letters. Ignoring these notices is not a good idea. Respond to the correspondence either on your own or retain an experienced foreclosure lawyer to help you deal with the situation. There are a variety of rights homeowners have with regard to mortgages and foreclosures. An experienced foreclosure defense lawyer will be able to explain these rights to you. In addition, the attorney will be able to discuss with you defenses that can be raised in the event of a foreclosure lawsuit against you.

If you have financial problems you could discuss the possibility of a bankruptcy. Credit cards and other non-secured creditors should not be paid before you make mortgage payments. Your home provides security for you and your family. It should be one of the first bills to be paid by you.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: foreclosure, foreclosure defense, foreclosure proceedings, New York foreclosure attorney

Foreclosure and Reverse Mortgages

June 11, 2014 by Elliot S. Schlissel

The purpose of a reverse mortgage is to allow seniors who have homes with substantial equity to pull the equity out of their home and still be able to reside in the home for the rest of their lifetime without making mortgage payments. The difference between a reverse mortgage and a traditional conventional mortgage is the individual taking out the loan under a reverse mortgage does not have to make monthly mortgage payments. The lender only gets paid when the mortgagor dies, or in the event of the sale of the home prior to the mortgagor’s death.

No Personal Obligation to Pay a Reverse Mortgage

There is no personal obligation on the mortgagor to make payments with a reverse mortgage like there is in a traditional mortgage. The only method the financial institution has to collect under a reverse mortgage is from the sale of the home. The lender is therefore exposed to not being capable of having its loan repaid should the market conditions reduce the value of the home or the home be in poor condition. However, the lender can obtain insurance from HUD to protect it from the risk of the home not being worth the amount of the loan plus interest.

Underwriting Reverse Mortgages

The loans are underwritten by financial institutions based on a number of factors. The older the mortgagor is, the more money can be obtained in the mortgage. This takes into consideration the fact that the older the mortgagor is, the smaller his or her life expectancy will be. The shorter life expectancy allows the loan to become due and payable earlier in time.

In the event there are co-mortgagors on the loan, the loan is not called due until the second of the two mortgagors dies.

Problems with Reverse Mortgages

In recent years, when homes were owned by husbands and wives and one of the spouses was older than the other, the banks would convince the younger spouse to deed his or her share of the property to the older spouse. This action was taken so the underwriter would allow a larger amount of money to be borrowed in the mortgage based on the shorter life expectancy of the older spouse. The younger spouses were assured in the event the older spouse dies, they would be allowed to continue to reside in the house. Unfortunately, that is not what happened! When the older spouse, the mortgagor, died the surviving spouse was notified by the financial institutions the reverse mortgage was due and payable because the surviving spouse was not a party to the mortgage loan. Since the surviving spouse was also a senior, and had limited cash flow in most situations, he or she was unable to make the mortgage payments and therefore the house would end up in foreclosure.

HUD has recently dealt with this issue.

New HUD Policy

With regard to all reverse mortgages that are given by financial institutions after August 4, 2014, the new rule requires the non-borrowing spouse who had been married to the borrowing spouse (mortgagor), at the time of the closing, will be afforded protection by this rule and the financial institutions will not be permitted to bring foreclosure lawsuits against the surviving spouse or request payment of the mortgage upon the death of the spouse who was on the mortgage. The financial institution will not be entitled to bring a foreclosure proceeding until the surviving spouse also dies. It should be noted this rule only applies to parties who were actually married at the time the mortgage was taken out. In the event a reverse mortgage is taken out and then the mortgagor marries, that surviving spouse would not be included under this new rule and would need to either pay off the mortgage or have the house subject to being foreclosed upon.

Filed Under: Foreclosure, Uncategorized Tagged With: foreclosure defense attorneys, mortgage modification, New York foreclosure attorney, reverse mortgage

Judges Assigned to Foreclosure Court Conferences

June 6, 2014 by Elliot S. Schlissel

The courts in New York are being flooded with new foreclosure lawsuits. Before the litigation stage in a foreclosure lawsuit, the parties must attend mandatory foreclosure mediation conferences. The Office of Court Administration is assigning new judges to deal with the increased volume of foreclosure court conferences in the Counties of Nassau, Suffolk, Kings and Queens. This action is being taken related to numerous complaints which have been filed by the attorneys for homeowners. These complaints generally state the financial institutions attorneys’ who are showing up at the foreclosure court conferences have no authority to make the decisions necessary to amicably resolve these cases.

Bank Attorneys Have No Authority To Settle Cases
or Approve Mortgage Modifications

In a study provided by legal service providers, it was found in eighty percent of 252 settlement conferences which took place over a 90 day period last year, the lawyers representing the financial institutions either lacked the appropriate information concerning the cases or did not have settlement authority. Justice Barry Kamins, the Chief of Policy and Planning for the courts in New York has taken action to provide more judges at the foreclosure settlement conferences in the four counties that have the heaviest backlog of foreclosure cases for the purpose of having judges immediately available for resolving disputes that occur at the foreclosure court conferences.

New York Courts Bursting At The Seams With Foreclosures

In 2013, there were 87,000 foreclosure cases pending in the courts in New York. As of April 1, 2014, there are more than 90,000 cases now pending in the courts.

The purpose of foreclosure court conferences is to allow the homeowners and attorneys for the banks to get together for the purpose of negotiating a mortgage modification to prevent the house from being sold at foreclosure sales.

New York Law

New York Civil Practice Law and Rules section 3408(c) which governs foreclosure court conferences states “the plaintiff shall appear in person or by counsel, and if appearing by counsel, such counsel shall be fully authorized to dispose of the case.” In another section of CPLR 3408(f) it states, both sides to the legal proceeding “shall negotiate in good faith to reach a mutually agreeable resolution, including a loan modification, if possible.” Foreclosure defense lawyers are aware most financial institutions are ignoring this statute.

The large majority of attorneys who appear for banks do not have any settlement authority. It is estimated at less than ten percent of the attorneys who appear at foreclosure court conferences for financial institutions have any settlement authority. A recent report with regard to the conduct at foreclosure court conferences states the courts should “not tolerate rampant violation of the settlement conference law and should enforce the law as it is written vigorously.” The report goes on to state when the attorneys for the banks appear without the appropriate authority or do not negotiate in good faith, judges should create consequences for the lenders such as tolling or barring interest on the outstanding balance or staying actions until the financial institutions fulfill their obligations under the settlement conference law.

Conclusion

The purpose of the foreclosure court conferences were to provide an intermediate step prior to full fledged litigation to allow beleaguered homeowners to work out mortgage modifications to keep them in their homes. The statute was a step in the right direction. However, the banks are not complying with this statute. If they continue to fail to comply, judges should punish them for violation of this statute!

Filed Under: Foreclosure, Foreclosure Defense Tagged With: foreclosure defense, foreclosure proceedings, New York foreclosure defense lawyers

Archives for June 2014

Is Bankruptcy the Solution to Stopping Foreclosure Proceedings?

Foreclosure Truths and Falsehoods – Part II

Foreclosure Truths and Falsehoods – Part I

Wrongful Foreclosures

Long Island Home Sales Going Down But Prices Going Up

Avoiding Foreclosure

Foreclosure and Reverse Mortgages

Judges Assigned to Foreclosure Court Conferences

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