The Statute of Limitations Expired: Case Dismissed!

In a foreclosure lawsuit in Kings County before Justice Johnny Bayes, a set of facts was presented to the court concerning issues involving a statute of limitations defense and a mortgage modification. The Bank of New York had initiated a foreclosure lawsuit and thereafter brought a motion for summary judgment (a motion claiming there are no issues of fact). The defendant in this case, McQueen, brought a cross application for summary judgment. She also asked for a declaratory judgment which argued the statute of limitations had run on the mortgage and therefore the mortgage was now unenforceable.

Bank of New York’s Defense

The Bank of New York claimed McQueen had submitted a mortgage loan modification application and correspondence requesting information about the mortgage. The Bank of New York asserted these two items tolled (stopped) the running of the statute of limitations on the mortgage. It should be noted the Bank of New York rejected the mortgage modification application. However, even after they rejected the application, they alleged in their court documents the modification application and the correspondence resurrected the expired statute of limitations and also constituted a further acknowledgment of the debt.

Court Doesn’t Buy Bank of New York’s Defense

Justice Baynes stated that the request for a mortgage modification was simply a settlement offer. Settlement offers do not contain an acknowledgment of liability. Therefore, settlement offers such as mortgage modifications are not admissible at trial as evidence of liability. Justice Baynes ruled the application for request for a modification was not an offer to pay the mortgage. The letters did not constitute a promise to pay by McQueen. Bank of New York’s motion was denied and McQueen’s cross motion was granted. The Judge ruled that the statute of limitations had run on the mortgage and the mortgage was therefore unenforceable.

Elliot S. Schlissel and his associates have been helping homeowners stay in their homes and fight foreclosure lawsuits for more than 45 years.

VIDEO: Tax Foreclosure

Elliot Schlissel discusses tax foreclosure.

Non-Bank Servicing Companies Creating Problems for Homeowners

Picture of a home

Banks have been using non-bank servicing companies for the past few years. These servicing companies are not regulated by the modest consumer protections built into the National Mortgage Settlement Law of 2012. Non-bank servicing companies are known to take a long time to review mortgage modifications. They wrongfully deny mortgage modifications on a regular basis. The investors who buy the loans from the non-bank servicing companies are not interested in helping homeowners save their homes by working out amicable mortgage modifications.

Investors and Mortgage Modification

Private investors are becoming more involved with regard to the ownership of delinquent mortgages. In the year 2015 non-bank servicing organizations served approximately a quarter of the $10 trillion in outstanding mortgages on residents in the United States. This percentage of mortgages being serviced by non-bank servicing companies has expanded in both 2016 and 2017.

Oversight of Servicing Companies

Attorney Elliot Schlissel

Senator Elizabeth Warren of Massachusetts and Eliza Cummings of Maryland have looked into the need for oversight with regard to non-bank mortgage servicing companies. They recently made a joint statement “harm to consumers such as problems or errors with account transfers, payment processing, and loss mitigation processing have developed related to non-bank mortgage servicing companies.”

There are approximately 100,000 mortgage foreclosures going on in the State of New York. Homeowners often feel overwhelmed when dealing with non-bank servicing companies. The best way to deal with issues involving these servicing companies is to hire an experienced foreclosure attorney to represent you on these matters.

Elliot S. Schlissel and his associates have been representing homeowners throughout the Metropolitan New York area with regard to foreclosure cases for more than 45 years. They work hard to help keep their clients in their homes.

Bank’s Summary Judgment Application Denied

Keys and A House

In a case before Justice Elliot sitting in Supreme Court in Queens County, HSBC Bank brought a motion for summary judgment (a motion for a judgment of foreclosure claiming there are no issues that need to be tried) against Murphy in a foreclosure lawsuit. HSBC claimed they had possession of the original note with the proper endorsement. They therefore claimed they were the owner of the note and mortgage. They took the position that Murphy had not made his monthly mortgage payments and was therefore in default regarding his contractual obligations.

Bank Lacks Standing Defense

Murphy claimed in his defense the bank lacked standing to bring this lawsuit. He argued that a copy of the original note with a blank endorsement annexed to its motion and the affidavits dealing with the motion were invalid. Murphy claimed the endorsement was on a separate piece of paper which amounted to being on a blank page.

Justice Elliot found the affidavit of the bank’s servicer attesting to physical possession of the original note was not sufficient. He found the endorsement did not provide significant evidence that it was “firmly affixed thereto to become part thereof.” HSBC’s servicer did not provide sufficient information with regard to the original note’s condition. Therefore, Justice Elliot ruled the bank was not entitled to summary judgment on the case and the case would continue.

Attorney Elliot Schlissel

Elliot S. Schlissel and his associates have been representing clients in foreclosure cases throughout the Metropolitan New York area for more than 45 years.

VIDEO: Bank Brings Foreclosure Lawsuit Against Deceased Individual

VIDEO: Bank Did Not Establish Legal Standing to Bring Foreclosure Lawsuit

Reverse Mortgages: Should You Consider One?

Picture of a home

Reverse mortgages are usually taken out by seniors to unlock the equity in their homes. However, there are pros and cons as to whether a reverse mortgage is the appropriate thing to do.

Facts About Reverse Mortgages

Reverse mortgages are mortgage loans taken out by individuals at least 62 years of age. The theory behind a reverse mortgage is that the equity in the home will support the reverse mortgage and the mortgage will be repaid when the homeowners die. Reverse mortgages do not have to be paid as long as one of the borrowers is still living in the home. The funds received from the reverse mortgage can be taken in a lump sum, as a line of credit or in monthly payments.

Reverse Mortgages vs. Traditional Mortgages

In a traditional mortgage the homeowner takes out a mortgage and then makes monthly payments until the mortgage is paid in full. The monthly payment represents both the payment of principal and interest due and owing on the principal. With regard to reverse mortgages, the homeowners do not have to repay the reverse mortgage on a monthly basis. It is usually paid after both of the homeowners die or both of the homeowners are no longer living in the home.

Benefits of a Reverse Mortgage

One of the most significant benefits of a reverse mortgage is the home will not be foreclosed upon and the homeowners will not be forced out of their home because they can’t make monthly payments. Reverse mortgages give homeowners peace of mind knowing they no longer have a monthly payment they need to make to the bank.

Some Disadvantages of Reverse Mortgages

Banks are usually very conservative with regard to how much money they will provide a homeowner with pursuant to a reverse mortgage. When the homeowners die, the homeowners’ heirs will either have to have the home sold to pay back the reverse mortgage or they will have to come up with the balance due on the reverse mortgage. Reverse mortgages generally have higher interest rates than traditional mortgages.

Conclusion

If you are considering a reverse mortgage you should first shop around to several different financial institutions. You should compare the interest rates offered on the reverse mortgage from each of these institutions. If you are not sure as to whether a reverse mortgage is the appropriate avenue for you to pursue, you can consult with an elder law attorney to help you make this decision.Attorney Elliot Schlissel

Elliot S. Schlissel, Esq. is a member of the National Academy of Elder Law Attorneys representing seniors throughout the Metropolitan New York area.

VIDEO: Reverse Mortgage Foreclosures

Trump Administration Creates Mortgage Problems For Potential Homeowners

Picture of a home

Donald Trump shortly after becoming President of the United States signed an administrative order to stop a fee rate cut for mortgages from going into effect. This fee rate cut would have saved potential home buyers who do not have the funds for large down payments – significant amounts of money. As a result of the action taken by the Trump administration 40% of all millennial home buyers will find it more expensive to pay their mortgage.

The Actual Events

A few hours before Donald Trump was sworn in as President he signed an order which set aside action taken by the Obama administration that would have lowered monthly fees for prospective homeowners who buy homes and have less than 20% of the cost of the home to pay as a down payment. These prospective home buyers who do not have 20% to put down for the purchase of a home use a government program operated by the Housing and Urban Development Department known as “FHA Loans” to insure their mortgages. The decrease in the cost of the FHA fees would have saved the average prospective homeowner who takes out an FHA backed mortgage in the State of New York about $1,000.00 a year.

The FHA loan fees were raised during the height of the real estate crisis. The action was taken to cover short falls within the FHA program. The action taken by the Obama administration was designed to bring the FHA costs to the level they were at before the housing bubble crisis took place. The action by Donald Trump has the impact of reducing the buying power of prospective homeowners. The amount of money that could be used for mortgage payments will be reduced by the approximately $1,000.00 a year that has to be paid for the FHA insurance fees.

Mortgage Insurance

Prospective homeowners who do not have 20% to put down as a down payment on a home must buy mortgage insurance. This mortgage insurance covers the potential losses to the financial institution if they are unable to make their mortgage payments. This is necessary because when homeowners do not have 20% to put down on their home there is often insufficient equity in their homes for banks to cover their potential losses in the event the home is foreclosed upon and sold.

Attorney Elliot Schlissel

FHA loans are most often utilized by young home purchasers. Almost 40% of all home purchases by younger purchasers are FHA backed loans.

Reverse Mortgages: What Are They and How Do They Work?

reverse mortgage

A reverse mortgage is a mortgage loan given to senior citizens that seek to utilize the equity in the home to support themselves in their old age. Generally speaking, the loan does not have to be repaid until the last surviving spouse either dies or permanently moves from the home. In the event of the death of the last of the husband and wife to die the estate of the second to die has approximately 6 months to repay the entire balance of the reverse mortgage or take action to sell the home for the purpose of paying off the reverse mortgage. After the reverse mortgage is paid off the rest of the equity derived from the sale of the home becomes an asset of the estate. Should the home be underwater, be worth less than the reverse mortgage, the estate and either the executor or administrator of the estate will have no personal liability with regard to paying off the portion of the reverse mortgage not covered by the sale of the home.

Who Is Entitled to Obtain a Reverse Mortgage?

Eligibility to obtain a reverse mortgage requires all of the homeowners be a minimum of 62 years of age. In addition, all mortgages on the home must be paid off prior to obtaining the reverse mortgage or at the time of obtaining the reverse mortgage. The home must be the primary residence of the individuals seeking to obtain the reverse mortgage. In addition, the homeowners must continue to pay homeowners’ insurance and property taxes of every type and nature that accrue on the home. The taxes can be property taxes, school taxes, town taxes and village taxes.

Loan Amounts

The amount the homeowners can obtain from the reverse mortgage depends on four (4) specific issues: the interest rate at the time of the reverse mortgage loan, the appraised value of the home, the age of the parties seeking to take the loan and the current government imposed lending limits at the time of the loan application.

How Reverse Mortgage Payments are Made

Attorney Elliot Schlissel

Reverse mortgage payments can be made on a monthly basis for as long as the homeowner lives in the home, for a fixed period of months or the homeowners can take a lump sum out all at once. In addition, the reverse mortgage can create a line of credit the homeowners can access at any time. It is not recommended that the homeowners take the lump sum of all the funds from the reverse mortgage. In these cases the homeowners may not be able down the road to pay at one time the taxes on the home. The non-payment of the property taxes on the home or failure to pay the homeowners insurance is a basis for the financial institution bringing a reverse mortgage foreclosure lawsuit.

Foreclosure Defense in Valley Stream, Lynbrook, Baldwin, Malverne, Freeport, Oceanside, Long Beach, Elmont, Lakeview, West Hempstead, Hempstead, Merrick and Bellmore, New York

We represent individuals throughout the New York Metropolitan area with divorce and child custody, personal injury, car accident, wrongful death, estate administration, nursing home and medicaid issues

The information you obtain at this website is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your particular legal issue. This is attorney advertising.

This is attorney advertising. This website is designed for general information purposes only. The information presented on this website shall not be construed to be legal advice. If you have a legal problem you should consult with an attorney.

Copyright © 2018 By The Law Offices of Schlissel DeCorpo. All Rights Reserved.