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Elliot S. Schlissel is a foreclosure defense attorney. He and his associates have been representing homeowners and keeping families in their homes for more than 45 years. Elliot defends foreclosure litigation and helps his clients obtain mortgage modifications. He can be reached for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.
A “zombie home” is a home which is no longer under the control of the owners, but the foreclosure case is still pending and therefore the bank does not have legal title or possession of the home.
Foreclosed Abandoned Homes
There are communities which have numerous foreclosed homes within them. Sometimes the homeowners abandon these homes. This has a negative effect on the tax base. The other homes in the area have their taxes go up as a result of this action. The abandoned homes fall into disrepair causing the homes surrounding them to lose value. When people drive through an area with abandoned homes, it creates a blight on the neighborhood. Zombie homes are a problem in many neighborhoods throughout the United States. It is estimated that as many as 20% of the homes in foreclosure are vacant.
Proposed New York Program
In States such as New York, where the foreclosure process is long, the issue of zombie homes becomes a larger problem. Attorney General Schneiderman in the State of New York is currently backing an idea of letting communities create land banks for the purpose of buying, refurbishing, and reselling abandoned homes. Attorney General Schneiderman has proposed legislation which would force lenders to maintain a property which has been abandoned after the start of the foreclosure lawsuit.
Maintenance Problems of Abandoned Homes
Homes that are abandoned often have significant maintenance problems. Pipes burst. The wood rots. The lawns sprout weeds. These homes create eyesores and create a blighted effect on the neighborhood.
Syracuse Land Bank Program
Katelyn Wright, the Executive Director of the Greater Syracuse Land Bank, recently stated “studies have shown that they [abandoned homes] have a dramatic negative impact on the property values for the homes in the surrounding vicinity, but also less dramatic but still notable for homes in a several block radius.” Katelyn Wright, as Director of the Greater Syracuse Land Bank, has been involved in dealing with abandoned homes in the Syracuse area. Syracuse experiences as many as 50 new abandoned homes each month. The Land Bank buys many of these homes for a very modest price using State, City and County funding. The homes are then either rehabilitated and put back on the market or, if they are not able to be rehabilitated, they are demolished. This is an example of how one community is dealing with zombie homes.
Elliot Schlissel is a foreclosure attorney who represents homeowners whose homes have been foreclosed on. He helps keep his clients in their homes and advises his clients not to abandon their homes.
Your Loan Modification Was Denied!
This is not the end of the world. To start with, even if your loan modification was approved, they may not have modified your loan to the point where you can afford to make the payments. If your loan modification is denied, you must litigate the foreclosure lawsuit. After submitting an Answer with affirmative defenses and countersuing the bank, you have an opportunity to make discovery demands upon the bank. You can request documents, financial records and other information from the bank with regard to the processes, procedures and what was involved in initiating the mortgage, having the financial documents moved from one bank to another, and bank policies and procedures. This will give you more information with regard to defending your lawsuit.
Banks can be sued within their foreclosure proceedings. This is called countersuing the bank. In the foreclosure lawsuit, the bank must present testimony and documentary evidence to support their claims. It is not uncommon for litigated foreclosure lawsuits to take three to five years to get through the court system.
Does Foreclosure Mean You Are Losing Your Home?
The answer to this is no! The foreclosure lawsuit is the start of a process by a financial institution to take back the home. If proper Answers with affirmative defenses and counterclaims are filed and discovery demands are made, the banks can be put on the defensive. No one is going to show up at your house and force you out into the street. The purpose of the foreclosure proceeding is for the bank to obtain a court order to sell your home. This is not an easy process. It takes a long time to get through the legal system. Using an experienced foreclosure defense lawyer can give you the security of knowing you will not be forced out of your home in the short run. Before a bank can take your home, they must get through your foreclosure defense law firm. I can tell you this is not an easy thing to do if you are represented by the right lawyer.
Do I Need A Lawyer To Help Me Litigate The Foreclosure Case?
The answer to this question is yes. In theory you can submit an Answer and represent yourself. However the law firm representing the bank usually brings hundreds of lawsuits against consumers. They usually have an expertise in foreclosing on homes and having the homes sold at auction on the courthouse steps. If you do not hire a lawyer, you will find yourself in an extremely disadvantaged situation. You will not understand the laws, the court rules, and the procedures involved in fighting a foreclosure case. Retaining a law firm who has fought hundreds of cases and has a successful record such as our law firm puts you in the best situation to keep your home, obtain a mortgage modification, and/or get the foreclosure lawsuit dismissed.
You Can Obtain A Mortgage Modification
You will have the opportunity to modify your mortgage under the auspices of the mandatory mortgage modification conference. New York requires, in all foreclosure lawsuits, a mandatory settlement conference on residential mortgage foreclosure cases. At the foreclosure settlement conference you will have an opportunity to apply for a mortgage modification. Even if you have already been turned down, you can apply for another mortgage modification under the supervision of the referees in the mandatory foreclosure settlement conference part in the courthouse.
To Avoid Default, You Must Answer The Summons And Complaint
A foreclosure lawsuit is initiated by the bank’s lawyers serving you with a Summons and Complaint. You can be served personally. The service can be on a person of suitable age and discretion at the residence. You can also be served by the process server leaving a copy of the Summons and Complaint at the residence and mailing you a copy. When you are served with a Summons and Complaint in a foreclosure you must file a written Answer. You must serve it on opposing counsel and file it with the Court within twenty days if served personally, or thirty days if served by any other means!
Mortgage Modification
You may be negotiating a mortgage modification with the bank. This does not change the fact you must respond to the Summons and Complaint by serving on opposing counsel a written Answer and filing it with the court. Negotiating a mortgage modification does not stop the foreclosure lawsuit from moving forward. If you don’t serve an Answer upon opposing counsel and file it with the court, the bank lawyers will take a default judgment against you. This will allow them to move forward with the foreclosure action without the court ever hearing as to whether you have a defense or wish to stay in your home.
Answering the Complaint
An Answer to the Complaint is a written response to the allegations in the Complaint. In addition to responding to what the bank states in their Complaint, you can submit affirmative defenses and you can also counter sue the bank. There are numerous requirements a bank must meet for their foreclosure lawsuit to go forward. Affirmative defenses can be alleged that the bank lacks standing to sue you, the bank does not have the original note and mortgage, the bank has violated truth in lending laws, the bank has failed to provide you with pre-foreclosure notice requirements, the bank was engaged in fraudulent activities, the person signing the documents is a robo-signer, and numerous other defenses. You only have to be successful with regard to one affirmative defense to stop the bank’s foreclosure lawsuit in its tracks!
To watch today’s video blog, please click on the link below:
Elliot S. Schlissel is a foreclosure lawyer. Elliot and his associates help their clients obtain mortgage modifications, defend foreclosure lawsuits, and counter sue banks. Elliot can be reached for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.
The Appellate Division of the Second Department, an appeals court, has recently rendered a decision establishing remedies for homeowners when their lenders fail to act in good faith during the course of mandatory foreclosure settlement conferences. The appellate court in the case of US Bank National Association v. Williams upheld the lower court decision which cancelled interest from accruing and also prevented the bank from charging the debtor with their legal fees during the foreclosure conference period.
Homeowners’ Remedies
This case gave homeowners remedies to use against banks when they act in bad faith during foreclosure conference negotiations.
In this case, the bank continually asked the borrower for further documentation during the course of the foreclosure settlement conferences. However, it turned out even though the bank was asking for more and more documentation during the 13 month period, they had a ban which would have prevented them from granting a mortgage loan modification.
The Appellate Court’s Decision
The appellate court stated in its decision, “under these circumstances, the Supreme Court providently exercised its discretion in finding that US Bank was not entitled to collect interest accrued as a result of its wrongful conduct.” Under Civil Practice Law and Rules section 3408(a)(f), “both the plaintiff and defendant shall negotiate in good faith to reach a mutually agreeable resolution, including a loan modification, if possible.”
The court stated in its decision, attorneys representing mortgage holders have been complaining that in many cases financial institutions refuse to offer mortgage loan modifications but still come to the mandatory foreclosure court conferences and demand the homeowners provide them with detailed documentation to underwrite mortgage modifications. During these periods of time, the interest and the attorneys fees is accruing on the homeowner’s mortgage. Foreclosure defense lawyers have been continually asking courts for sanctions against financial institutions when they act in bad faith concerning these mandatory mortgage modification court conferences.
Conclusion
There exists remedies for homeowners when they are dealing with banks who refuse to negotiate mortgage modifications in good faith.
