Elliot S. Schlissel

LEGAL PROCESS IN STATE AND FEDERAL COURTS INVOLVING FORECLOSURE

June 1, 2023 by Elliot S. Schlissel

Legal action can be taken by homeowners in either state courts or federal courts to save their homes. Unfortunately, these procedures are sophisticated. Most general practice lawyers are not familiar with the complicated process of fighting foreclosure lawsuits. Should you find yourself facing a foreclosure situation, do yourself a favor and hire an experienced foreclosure attorney.

WHAT CAN OF FORECLOSURE ATTORNEY DO TO HELP ME?

An experienced foreclose defense lawyer will be in a position to examine all of the documents connected with the obtaining of the mortgage on for your home. He or she can identify possible legal defenses or counter lawsuits which can be brought against the financial institution. A foreclosure defense lawyer can review your financial information and evaluate if there are mitigating circumstances which have caused your default. The mitigating circumstance can be brought to the attention of the financial institution to avoid your home from going into foreclosure. Your attorney could also be utilized to help you regarding a forbearance plan or a mortgage modification. There are a number of viable alternatives to losing one’s home in a foreclosure. Among them is having the attorney negotiate with your financial institution to work out a plan which meets your needs and saves your home.

LITIGATION

Should you end up in a foreclosure lawsuit, a qualified foreclosure defense lawyer can vigorously defend you and your family in court. Foreclosure defense attorneys who take an aggressive position with the financial institution can help in the negotiations with regard to obtaining a forbearance agreement, or a mortgage modification.

The law office of Schlissel DeCorpo have been defending homeowners regarding mortgage issues for more than three decades. They can be reached at 516-561-6645, 718-350-2802, 631-319-8262 and 914-998-0080 or emailed at Elliot@sdnylaw.com.

Filed Under: Foreclosure Tagged With: FEDERAL COURTS INVOLVING FORECLOSURE

CAN I FIGHT A FORECLOSURE?

June 1, 2023 by Elliot S. Schlissel

Mortgage loans generally are made for a period of 15 or 30 years. When homeowners take out the loan, they usually have good jobs, are healthy and have no problems making the payments. But during the term of the mortgage, sometimes homeowners run into financial difficulties. Their financial situations change. They experience all types of anxiety regarding losing their home.

THE FINANCIAL INSTITUTIONS ATTORNEY

Financial institutions have in house lawyers. They have outside counsel who bring lawsuits against homeowners that helps the financial institutions maintain their profitability. Foreclosure lawsuits can be fought. New York now has a mandatory modification mediation requirement before a foreclosure lawsuit is initiated. This puts pressure on the financial institution to come up with a program which is affordable by the homeowner and stops the foreclosure litigation from moving forward.

NOTICE REQUIREMENTS

There are all types of notice requirements and provisions which must be given to homeowners by financial institutions and the assignees of their mortgages before a foreclosure lawsuit can be started. In cases where the financial institutions do not specifically comply with all the terms and conditions of the statutes and consumer protection laws the homeowners may challenge the foreclosure lawsuit successfully and have it dismissed.

FRAUDULENT ACTIONS

In cases where there are fraudulent actions or misleading documents related to the loan application process or the foreclosure lawsuit, homeowners can fight these lawsuits in court and have the foreclosure lawsuits dismissed. In addition, there are procedural defenses in the New York Civil Practice Law and Rules and the rules of Court a foreclosing financial institution must very specifically comply with or the foreclosure lawsuit can be dismissed.

Filed Under: Foreclosure Tagged With: foreclosure lawsuits

A Primer On The Foreclosure Process

May 17, 2023 by Elliot S. Schlissel

PRE-FORECLOSURE

When a home owner falls three months behind on their mortgage payments the property is considered to be in a pre-foreclosure status. This will cause the financial institution to send demand letters. The letters will talk about mortgage modifications, forbearance plans, and possible other means of avoiding foreclosure. If the homeowner takes no action, the financial institution will usually initiate the foreclosure process.

NOTICE OF THE DEFAULT

Before the financial institution actually serves the summons and complaint in foreclosure case, a 90 day notice will be given to the homeowner. This 90 day notice advises the homeowner unless arrangements are made with regard to dealing with their late mortgage payments, a foreclosure lawsuit will be initiated.

FORECLOSURE LITIGATION

The litigation process in New York usually moves slowly. It was made slower by Governor Andrew Cuomo and Governor Hochul shutting down the foreclosure process during the course of the COVID-19 pandemic for approximately two years. A qualified foreclosure defense attorney can often tie a foreclosure up in the courts in New York for three to five years or even much longer than that.

THE END GAME IN A FORECLOSURE

At the end of a foreclosure litigation a public foreclosure auction takes place on the courthouse steps. The home is sold at the auction to the highest bidder. The financial institution will bid the entire amount of their mortgage and then speculators can bid over that amount if they seek to buy the home.

AFTER THE FORECLOSURE

When the foreclosure lawsuit has ended and a new owner has taken title to the home the new homeowner must provide notice they are the new homeowner to the ones who have lost their home. The notice statute in New York State requires they provide the former homeowners a copy of the new deed. Thereafter, the former homeowners will have to make arrangements to move from the premises or face an eviction proceeding which can result in their being put out of their home by the Sheriff or in the city of New York by a Marshall.

Filed Under: Foreclosure Tagged With: foreclosure process

LAWYERS AND FORECLOSURE DEFENSE

April 27, 2023 by Elliot S. Schlissel

Before you represent yourself or hire an attorney, carefully look into who are the best foreclosure defense lawyers. Attorneys are expensive. To become a lawyer in the state of New York, you need a four year undergraduate degree. Thereafter apply to law school, be accepted and attend three more years of education in the law in an approved law school. Then, after graduating from law school, the individual must take the bar exam, pass it, go through an ethics process and then be admitted to the bar. The process between applying to college, graduating, going through law school and get admitted to the bar takes approximately eight years. When that individual gets out of law school, it then takes many years until they develop the expertise necessary to litigate effectively in the courts of New York.

TYING THE CASE UP IN COURT

Even if a homeowner does not have a provable defense to the foreclosure lawsuit, a skilled foreclosure defense lawyer can tie up the case up in court from anywhere from three to five years. During this time the homeowners are living in their home without making any mortgage payments.

WHAT TO LOOK FOR IN A FORECLOSURE DEFENSE LAWYER

What to look for in a foreclosure lawyer is how much experience the attorney has representing homeowners. The second thing to look for is how many foreclosure cases the law firm has handled? Have they obtained loan modifications for homeowners?

Have they published articles on issues facing homeowners whose homes have been foreclosed? Do they have a staff to back them up? Finally, what will hiring that foreclosure defense attorney cost you and what legal services are being provided?

Filed Under: Foreclosure Defense Tagged With: LAWYERS AND FORECLOSURE DEFENSE

Missing Mortgage Payments

April 26, 2023 by Elliot S. Schlissel

Homeowners who miss making mortgage payments may be facing the risk of being placed into foreclosure. A foreclosure, is a legal proceeding designed to effectuate the bank taking the house back from the homeowner and thereafter evicting the homeowner from their homes.

AVOIDING FORECLOSURE

The best way to deal with the foreclosure is to avoid it. Homeowners who are falling behind on their mortgage payments, should look into a forbearance agreement which involves delaying their mortgage payments. In addition, they can look into modifying their mortgage to make it less expensive in the short run to keep up with their mortgage payments.

LATE MORTGAGE PAYMENTS

In New York, home mortgage loans have a 15 day grace period regarding making mortgage payments. After the 15 day grace period, the homeowner may incur a late fee on the missed mortgage payment. In addition, missing mortgage payments late or making mortgage payments can have a negative impact on the homeowner’s credit rating.

MORTGAGE MODIFICATIONS

A mortgage modification is a means of restructuring the mortgage payments to avoid default and make the mortgage more affordable for the homeowners. If this is done, it has a minimal impact on any potential damage to the homeowner’s credit score. There are a number of different ways to modify a mortgage. Here’s a list of some of them:

You can seek to reduce the interest rate on your mortgage payment. ∙ You can temporarily pause making mortgage payments and have them made-up at a later point in time.
You can ask the bank to reduce the amount of your mortgage.
In cases where the homeowner has an adjustable rate mortgage, the homeowners can request the mortgage be changed into a fixed rate mortgage.

HOMEOWNERS BEING SERVED WITH A FORECLOSURE LAWSUIT

If the homeowner falls three months or more behind on their mortgage, the financial institution has the ability to accelerate the mortgage, which means call the entire mortgage due and owning and thereafter start a foreclosure lawsuit. A foreclosure lawsuit is usually started by a process server showing up at the homeowner’s home and serving them with the foreclosure lawsuit documents. If served with the foreclosure lawsuit set of documents, the homeowner will be shocked to find out how complicated and long the paperwork is. Foreclosure lawsuit legal documents can be anywhere from 100 to 500 pages long, including exhibits attached to the summons and complaint. What do you do if you get served with the foreclosure lawsuit? It is strongly suggested you immediately hire a foreclosure defense attorney.

Filed Under: Mortgage Modification Tagged With: AVOIDING FORECLOSURE

REVERSE MORTGAGES: ARE THEY A GOOD IDEA?

April 20, 2023 by Elliot S. Schlissel

Many Americans, as they reach their retirement years, find they have not saved enough money to pay all of their bills. One of the ways seniors can deal with their expenditures is to obtain a reverse mortgage. Reverse mortgages can make up for the fact that seniors do not have sufficient assets to cover their expenses during their period of retirement.

THE REVERSE MORTGAGE

A reverse mortgage is available to individuals who are 62 years of age and older. The way the reverse mortgage works is no repayments need to be made until the homeowners die or the home is sold. When the homeowners die, their beneficiaries have up to a year to refinance the home, buy it or sell the house. If the home is sold and the proceeds from the sale are greater than what is owed on the mortgage, the heirs of the decedent keep the balance of the proceeds in excess of what is owed.

HOW REVERSE MORTGAGES WORK

Seniors who take out reverse mortgage do not have to make mortgage loan payments during the rest of their lives. However, they have to pay for real estate taxes on the house, insurance on the house and they must maintain the premises in a good condition.

TYPES OF REVERSE MORTGAGES

There are three different ways a homeowner can receive funds from the reverse mortgage. The first is in a lump sum payment. The second is a line of credit which they can draw on whenever they need money to pay bills. The third is called the stream of income. Set amount of payments on a monthly basis are sent to the homeowner. When a reverse mortgage is taken out, if there is an existing mortgage on the property, the funds from the reverse mortgage must first be used to pay off the existing mortgage, and then the balance of the funds becomes usable money for the homeowners as part of the reverse mortgage.

USES FOR REVERSE MORTGAGES

Families who have homes with significant equity in them can take out a reverse mortgage and use the equity to subsidize their lifestyle or to provide a cushion which can help them deal with unexpected expenses.

REVERSE MORTAGE FORECLOSURE

A reverse mortgage foreclosure can be brought by the financial institution if the homeowner doesn’t pay the taxes on the house, maintain the premises or pay the insurance on the house. In addition, the financial institution, if they are not paid off within a year of the homeowner’s death, can initiate a foreclosure lawsuit.

Filed Under: Reverse Mortgages Tagged With: REVERSE MORTGAGES: ARE THEY A GOOD IDEA?

HIRING A FORECLOSURE DEFENSE ATTORNEY

April 13, 2023 by Elliot S. Schlissel

A family’s home is usually their single largest asset. Homeowners whose homes are taken back by the financial institution usually have their credit negatively impacted upon. This often will prevent them from being able to purchase another home in the near future. This means the former homeowners will be living in apartments for a considerable period of time.

FORECLOSURE DEFENSES

There are many different potential defenses to a foreclosure lawsuit. There are consumer protection laws, there are law’s regulating financial institutions. There are both federal, state, and local rules which financial institutions need to follow and many other statutory and case law defenses which have been developed over the years.

The legal process involving filing documents with the court and making effective legal arguments is quite complicated. The financial institutions hire very experienced foreclosure attorneys who have usually handled thousands of these types of cases. This gives the financial institutions, which have unlimited funds to hire lawyers, a distinct advantage if a homeowner seeks to represent themselves.

Individuals who are in the military are subject to additional rights and protections to avoid losing their homes in foreclosure.

LOAN MODIFICATIONS

A homeowner can apply on their own for a loan modification. However, loan modifications brought under the supervision of a judge can put pressure on the financial institution to be more reasonable with the homeowner.

BANKRUPTCY

Filing either a Chapter 7 or Chapter 13 bankruptcy in the United States Bankruptcy Court is another alternative which should can be taken into consideration by a homeowner. Whether to litigate in the state court in New York or in the federal court involves questions concerning financial circumstances, the homeowner’s ability to make payments, the current financial situation of the homeowner, the quality of their employment, and various other issues.

Filed Under: Foreclosure Defense Tagged With: HIRING A FORECLOSURE DEFENSE ATTORNEY

NEW YORK STATE LEGISLATURE MAKES IT MORE DIFFICULT FOR BANKS TO SUCCESSFULLY FORECLOSE.

April 3, 2023 by Elliot S. Schlissel

Mortgage foreclosure lawsuits in the state of New York have been made more difficult, by actions of the state legislature. In addition to foreclosure lawsuits becoming more difficult, they’re taking longer and longer to get through the courts. There are more reasons or grounds that foreclosure defense lawyers can use to have foreclosure lawsuits dismissed.

STATUTE OF LIMITATIONS

Financial institutions have six years from the time the mortgage is accelerated to bring a foreclosure case. The acceleration of the mortgage starts when the bank calls the entire mortgage due and owing. In the event, the financial institution and/or their lawyers did not move forward with the foreclosure lawsuit within six years of the acceleration of the mortgage the case can be dismissed for violation of the statute of limitations regarding a mortgage default. The violation of statute of limitations simply makes the mortgage unenforceable.

If a lender brings a foreclosure lawsuit and then for one reason or another it is discontinued, this does not stop the acceleration of the mortgage from continuing to run. Even if the foreclosure is dismissed by the court, it does not necessarily stop the six year statute of limitation from running.

DISCONTINUING THE LAWSUIT
THE SAVING GRACE FOR BANKS

There is a section of the New York Civil Practice Law and Rules, Section 205 which is the saving grace for banks that discontinue a lawsuit or have a lawsuit dismissed. This section states if the foreclosure action has been dismissed, at which time the statute of limitations has expired, there is a limited authority which allows an action to be reinstituted. If the lawsuit was originally commenced on a timely basis, but later terminated, the financial institution is permitted to commence a new lawsuit upon the same facts and circumstances within six months after the termination of the original lawsuit.

The dismissal of a foreclosure lawsuit and preventing it from being brought again is a complicated process. Should you think you have the possibility of a statute of limitations defense the best way to deal with any questions regarding this issue would be to contact an experienced foreclosure defense lawyer.

Filed Under: Foreclosure Tagged With: statute of limitations

Pre-Foreclosure Notice

June 3, 2022 by Elliot S. Schlissel

New York Real Property Actions and Proceedings Law Section 1304 requires lenders and servicing companies who want to bring a legal action regarding a mortgage on a residential home in the State of New York must provide 90 days written notice to the borrower regarding the home loan foreclosure before starting legal action. The notice needs to be mailed to the homeowner by regular mayor and certified mail.

90 Day Notice To Homeowners Required

Homeowners challenge the compliance with a statute on a regular basis. It is a complete defense to the foreclosure lawsuit that the homeowner was not properly served the requisite notice under Real Property Actions and Proceedings Law Section 1304.The mailing of this notice is considered a condition precedent to the initiation of the foreclosure lawsuit. The financial institution or servicing company must be in a position to provide an affidavit of service of the mailing of the pre-foreclosure notice.

There have been numerous decisions by the Supreme Court Judges and the Appellate Courts dismissing cases for the slightest mistake or deviation that the financial institution, its services and its attorneys have made with regard to failing to fulfill the strict compliance with the terms of this 90 day pre-foreclosure mailing.

Elliot S. Schlissel and his law office has been protecting homeowners in foreclosure cases for more than 3 decades. He can be reached at elliot@sdnylaw.com and 800-344-6431.

Filed Under: Foreclosure Tagged With: Pre-Foreclosure Notice

90 Day Notice Requirement Not Complied With

May 4, 2022 by Elliot S. Schlissel

The plaintiff in this case, a financial institution, had appealed an order denying it summary judgment of foreclosure. A summary judgment motion is a motion that states there is no question of fact and the financial institution should be entitled to enter a judgment of foreclosure and sale without taking the case to trial. As stated earlier, the bank lost this motion and they appealed the loss of the motion. The appeal went to the Appellate Division of the 2nd Department.

The Issue On Appeal

The issue with regard to the appeal was Real Property Actions and Proceedings Law Section 1304 (2) This section requires a homeowner receive 90 days notice prior to the initiation of a foreclosure lawsuit. The Appellate Court found the “notice required by this section shall be sent…in a separate envelope from any other mailing or notice.” This was a strict interpretation of the statute.

The Bank’s Problem

The bank in this case acknowledged the envelope it had sent to the homeowner’s contained the required notice under Real Property Actions and Proceeding Laws Section 1304 but it also included other information in 2 separate and distinct notices. The Appeals Courts ruled the bank did not comply with Real Property Actions and Proceedings Law Section 1304.The appeals court found the bank had not strictly complied with the requirements of this section of the law. Therefore the bank failed to satisfy a condition precedent before it could bring its foreclosure lawsuit. The court went on to hold this strict approach precluding any additional materials to be contained in the same envelope with the notice required under Real Property Actions and Proceedings Law 1304 “promotes stability and predictability.” in foreclosure cases. The decision of the lower court ruling against summary judgment for the plaintiff and dismissing the lawsuit was sustained.

Conclusion

Is the purpose of the 90 day notice under Real Property Actions and Proceedings Law Section 1304 is to give the homeowner’s specific notice they are in default on their mortgage and that they have 90 days to cure the default or a foreclosure lawsuit will be initiated against them to take back the house. This strict interpretation of this section by the appeals courts is designed to clarify to the homeowner the serious nature of this notice and the need to deal with being behind on their mortgage payments prior to the foreclosure lawsuit starting after 90 days.

Elliot S. Schlissel is a foreclosure defenses lawyer who has been helping homeowners form more than 3 decades. He can be reached at elliot@sdnylaw.com or 516-561-6645, 718-350-2802, 631-319-8262.

Filed Under: Foreclosure Tagged With: Judgment of foreclosure and sale