Please watch today’s video blog by clicking on the following link to learn about the new mortgage laws in effect in New York State:
Elliot S. Schlissel is a foreclosure defense lawyer. He can be reached at 1-800-344-6431 or by email at schlissel.law@att.net.
The Appellate Division of the Second Department is an Appeals Court in New York. This court recently rendered a decision with regard to the issue of a bank negotiating in good faith at foreclosure court conferences. In the matter of U.S. Bank, N.A. v. Sarmiento the court upheld a decision by a Supreme Court judge which prevented the collection of interest or fees which had been accumulating on a loan since December 2009. The court in its decision stated “the issue of whether a party failed to negotiate in good faith within the meaning of CPLR 3408(f) should be determined by considering what the totality of the circumstances demonstrates that the party’s conduct did not constitute a meaningful effort at reaching a resolution.”
Mortgage on Home in Brooklyn
U.S. Bank held a mortgage of approximately $600,000 on a home in Brooklyn owned by Jose Sarmiento. In May 2008, Mr. Sarmiento lost his job. He was in touch with the mortgage servicing company, America’s Servicing Company, a subsidiary of Wells Fargo. He was told he did not meet their qualifications with regard to a mortgage modification. They claimed he didn’t make enough money. He thereafter defaulted on making the payments under his loan. However he found a tenant who was willing to pay rent and asked for another opportunity to submit a mortgage modification application. The servicing company refused his request. The court found Civil Practice Law and Rules section 3408 (f) states “both the plaintiff and defendant shall negotiate in good faith to reach a mutually agreeable resolution including the loan modification, if possible.” The court’s decision indicated between September 2009 and January 2011 there were 18 separate court conferences. The referee in charge of these conferences found the servicing organization mishandled various aspects of the negotiations. Documents were misplaced and denials were made on erroneous grounds. That mortgage modification actually wasn’t appropriate for Mr. Sarmiento.
Bank Prevented Settlement of the Case
The court found the bank prevented the reasonable settlement of this case. The attorney for Sarmiento indicated this court’s decision gives homeowners “a sword against lenders and they can use it immediately.” He further stated the bank was prevented from collecting over $300,000 in interest in this case. A spokesman for Wells Fargo stated their company “works hard to help our customers avoid foreclosure and communications during the modification process.”
Foreclosure Court Conference
Our office handles numerous foreclosure court conferences each and every week. We often find the banks hire per diem lawyers who know nothing about the case and have no authority to negotiate with the homeowner’s attorney at these conferences. The failure of banks to send attorneys who have authority to deal with important issues at these foreclosure court conferences is a violation of the good faith requirements of the statute which created these foreclosure court conferences. In essence it makes the foreclosure court conferences a waste of time!
Please view today’s blog article regarding pleading defenses in a foreclosure action by clicking on the following link:
Elliot S. Schlissel is a foreclosure defense lawyer. He can be reached at 1-800-344-6431 or by email at schlissel.law@att.net.
Wells Fargo Bank had brought a foreclosure proceeding in August 2013 against Grotzer. Grotzer died on January 22, 2013. He was the sole owner of the property and the only person who signed the note and mortgage. Wells Fargo brought an application in the Supreme Court requesting the appointment of a temporary estate administrator. They took this action to avoid going to the Surrogate’s Court to appoint an administrator of the decedent’s estate. Their action was for the sole purpose of continuing their lawsuit for foreclosure of the mortgage.
Justice James Pagones sitting in the Supreme Court of Dutchess County denied their request. The judge took the position that Wells Fargo should commence a proceeding in the Surrogate’s Court under Surrogate’s Court Procedure Act section 1001 with regard to this case. The shortcut Wells Fargo’s attorneys sought to take was inappropriate. Even though this might delay the foreclosure case somewhat Wells Fargo still had to follow the appropriate legal procedures to maintain their foreclosure lawsuit.
Elliot S. Schlissel is a foreclosure lawyer representing homeowners throughout the Metropolitan New York area. He regularly sues banks to set aside mortgages and help keep his clients in their homes.
Chinese home buyers are buying billions of dollars of real estate in the United States. They are now the largest international investors in the American real estate market. It is estimated Chinese home buyers spent in excess of $22 billion in real estate acquisitions during the past twelve months within the States of New York, California and Washington. California is the state with the most activity by Chinese home purchasers. This is partly because it is the closest state to mainland China. In San Francisco and Oakland, Chinese real estate investors have had a significant impact on inflating real estate prices.
Chinese Home Purchasers in New York
Chinese real estate investors are especially focused at buying high end properties in Manhattan. A significant portion of these acquisitions of real estate are not to be lived in by the purchasers. They are simply investments in property in the United States. To Chinese investors, owning property in New York is a safe haven for their money. These real estate purchasers also look at purchasing property in the United States as a means of diversifying their assets. A significant number of the Chinese people investing in the United States never see the property or actually come to the United States for the transaction. The transactions are handled through middle men on behalf of the Chinese purchasers. It is estimated less than 40% of the Chinese real estate purchasers in the United States involve families who plan on living on a full time basis in these homes.
Elliot Schlissel is a foreclosure defense lawyer. He represents New Yorkers whose homes are foreclosed on. He has been successful in keeping his clients in their homes, and in many situations, helping them obtain mortgage modifications. His office offers free consultations with regard to foreclosure issues.
The Notarization of the Assignment Document
The assignment document needs to be notarized. The first thing you should check is if the date of the notarization is the same date as the date the person with the power of attorney, or the alleged officer of the financial institution executed the assignment. The second item you should look for is whether the notarization is from a notary in the same state as the individual who executed the assignment on the date of its execution. The notarization should have taken place on the same day and at the same location as the signature of the person making the assignment for the financial institution.
Is The Bank Still in Business?
During the past ten years, numerous mortgage companies, financial institutions and banks have gone bankrupt, have been dissolved, have merged and/or have been acquired by other financial institutions. If the bank or financial institution no longer exists, how could an employee of an institution that no longer exists execute an assignment? In these cases there is usually some sort of fraud which took place.
If the financial institution indicates there was a document attached to the note or affixed to the note, check to see if there are staple marks. If no staple marks exist on the document it is either not the original document or there was nothing actually attached to the document. If the financial institution is claiming the note is lost, check to see there has been an affidavit submitted explaining in detail the circumstances and events related to the loss of the original note. Be careful to make sure the person signing the affidavit actually was in a position to have personal knowledge about the loss of the note.
Elliot Schlissel is foreclosure defense lawyer. He has helped scores of New Yorkers fight foreclosure lawsuits and stay in their homes.
Please view today’s blog video at the following link:
Elliot S. Schlissel is a foreclosure defense attorney. He can be reached at 1-800-344-6431 or by email at schlissel.law@att.net.
The purpose of this article is to acquaint homeowners with spotting obvious bank fraud related to foreclosure lawsuits. In a case where there is a mortgage on a home, it is necessary for the bank to prove to the court that as of the date of the initiation of the foreclosure lawsuit it was in possession of the original note and mortgage. In addition, the bank must be able to prove to the court that as of the date of the initiation of the foreclosure lawsuit it owned the mortgage.
Checking to See If An Assignment is Valid
The following is a list of ways of investigating whether the assignment to the bank which has initiated the foreclosure lawsuit against you was in conformity to New York State law.
The first thing you should do is look at the signatures on the assignment document. Next to the signature should be the date of the assignment. Check to see the date of the assignment was earlier in time than the date the bank initiated the foreclosure lawsuit. The date on the top of the assignment document should not be different from the date it was executed at the bottom of the document.
Check to see if the person executing the assignment has executed it as “attorney in fact.” This means the person executing the assignment was executing it under power of attorney. In that case there should be a power of attorney related to this assignment. The bank should be able to produce the power of attorney so you can ascertain as to whether the person who executed as attorney in fact actually had power of attorney on the date he or she executed the document. If the person with the power of attorney was not an employee of the financial institution which was the holder of the assignment he or she may not have had the appropriate authority to execute the assignment.
