Archives for September 2018

• Foreclosure – This is the legal process in which a lender takes legal action to recover the balance due on a mortgage loan from the borrower.  This takes place after the borrower has stopped making the mortgage payments.  The purpose of the foreclosure is to force the sale of the home which is collateral for the loan.

• Promissory Note – A promissory note is an IOU executed by the homeowner at the time they take out the mortgage.  The mortgage creates a lien on their home which gives the financial institution a security interest protecting them in the event the homeowner defaults on making the payments under the promissory note.

• Mortgagee – The mortgagee is the financial institution that makes the loan to the homeowner.  The mortgagee can also be referred to as a lien holder.

• Mortgagor – The mortgagor refers to the individual or family who has taken a loan out and put the house up they are buying as collateral for that loan.

• Default – Default refers to a homeowner failing to make timely mortgage payments on the mortgage loan.

• Lis Pendens – Lis Pendens is the filing of a notice by the financial institution that they are taking legal action regarding the title and ownership interest in a home.  The filing of a Lis pendens has the impact of creating a cloud on the title of the home owned by the homeowner.

• Secured Creditor – A secured creditor in a foreclosure case is the mortgagee, the financial institution that loaned the homeowner the money, so they could either buy the home or refinance the home.

• Deed – This is the document which establishes who is the owner of a home. In States like New York this is the evidence of ownership of the home.

• Deficiency Judgment – When a home is sold in a foreclosure sale, if the financial institution is not paid back all the money they are owed at the time of the sale, they can proceed against the homeowner to obtain a deficiency judgment for the balance due and owing the financial institution which was not satisfied by the sale of the home.

Elliot S. Schlissel, Esq. is a foreclosure lawyer representing homeowners throughout the Metropolitan New York area for more than 45 years.  His law firm is dedicated to keeping homeowners in their homes.  He can be reach for a free consultation at 800-344-6431 or by e-mail at Elliot@sdnylaw.com.

There are a variety of solutions or ways to stop a foreclosure lawsuit from moving forward.

Modifying the Mortgage

A homeowner whose home goes into foreclosure can seek to have the mortgage modified. This action can be taken prior to the initiation of the foreclosure proceedings or after the foreclosure lawsuit starts. The homeowner by applying for a mortgage modification seeks to change the terms of their mortgage by lowering their monthly payments. In addition, the homeowner usually wants to have the arrears of their mortgage placed at the end of the mortgage.

Litigating the Foreclosure Lawsuit

The homeowner can fight the foreclosure lawsuit. The first step in doing this is filing an answer to the summons and complaint. The answer usually needs to be filed within 20 or 30 days after the homeowner is served with the summons. As part of the foreclosure defense the homeowner can make discovery demands upon the financial institution. The homeowner can seek to obtain documents and other information with regard to the underwriting of the mortgage application, the bank’s practices involving mortgages and other information related to the case. In addition, the attorney for the homeowner can engage in motion practice seeking to have the foreclosure lawsuit dismissed. If the financial institution has obtained a scheduled sale date for the homeowner’s home, an emergency Order to Show Cause can be brought in the New York State Court to obtain a stay of the foreclosure sale. In the order to show cause the homeowner must show mistakes in the foreclosure process by the attorneys for the financial institution or improper action taken by the bank.

Chapter 7 Bankruptcy

The homeowner can go into a United States Bankruptcy Court and file a bankruptcy. The filing of the bankruptcy gives the homeowner an automatic stay which goes into effect upon the filing of the bankruptcy case. The automatic stay freezes the foreclosure lawsuit in all State Courts.

Chapter 13 Bankruptcy

By filing a Chapter 13 bankruptcy the homeowner can catch up on the mortgage arrears under a 5 year plan. The homeowner can also seek to have the mortgage modified through a mortgage modifying procedure under the auspices of the bankruptcy court.

Sell the House

If the home has equity in it the homeowner can sell the house at any time during the foreclosure process.

Short Sale

If the homeowner’s home is worth less than the amount owed they can request the bank approve a short sale. A short sale means the bank will take all of the money from the sale in full satisfaction of what the homeowner owes even though the amount of the proceeds from the sale will be less than the bank is entitled to.

Elliot S. Schlissel is a foreclosure defense lawyer. He has been helping homeowners keep their homes for more than 45 years. He can be reach for a free consultation at 718-350-2801, 516-561-6645 or 631-319-8262. He can also be contacted at Elliot@sdnylaw.com.