In this case, the plaintiff, Wells Fargo Bank NA, brought a residential foreclosure lawsuit against the defendant Seibold. During the course of the foreclosure proceedings, both parties brought motions before the court. Wells Fargo sought summary judgment authorizing them to sell the property and holding defendant Seibold liable. Seibold brought a motion requesting the case be dismissed and he be held not liable.

Judge Finds Problems With Mortgage Industry Practices

Justice Philip Straniere heard the case in a Supreme Court Part located in Richmond County, New York. Judge Straniere had problems with a variety of practices of the mortgage industry, and specifically with Wells Fargo with regards to defendant Seibold in this case. He questioned the circumstances under which Seibold, who did not sign the note, was added to the mortgage. He didn’t understand why the estate in this case was not made a party to the lawsuit. He questioned certain allegations with regard to the ownership of the property which was excluded from the pleadings of the plaintiff in their Complaint. In addition he wanted to know why the original transaction was scheduled as a first and second mortgage when really it was simply a single mortgage. He found that the setting up this transaction as two mortgages may have been the cause of the default on this obligation. He took the position that the lenders were engaged in deceptive practices in violation of New York’s General Business Law Section 349.

Justice Straniere concluded the defendant Seibold was not liable for the payment of this mortgage. He found he did not sign the note. He also found that Seibold had raised an issue of fact with regard to questions concerning an escrow shortage.

Conclusion

I find this to be a very troubling case. Here is a situation where a judge has basically accused Wells Fargo of a variety of improprieties. Unfortunately, my office has seen numerous cases where banks have been involved in improprieties. When we bring these improprieties to the attention of judges, more and more homeowners are relieved of their financial obligations by the judges leading these cases.

Elliot S. Schlissel is a foreclosure attorneys representing homeowners throughout the New York Metropolitain area.

CitiMortgage Forced to Vacate Default and Accept Untimely Answer

Mr. Pollard had a mortgage with CitiMortgage. He had failed to make payments and CitiMortgage initiated a foreclosure proceeding. The case moved forward without Pollard participating in the case. Eventually, CitiMortgage moved for an Order of Reference. Mr. Pollard opposed the motion and brought a cross application to vacate the default in answering and to force CitiMortgage to accept his late Answer.

No Personal Service of Foreclosure Lawsuit Papers

Mr. Pollard took the position he did not intend to default in the lawsuit and waive his claims and defenses against CitiMortgage. He indicated in his moving papers he travels frequently related to his business situation. On the day the lawsuit was initiated, his wife Odessa was home in the house. However, she claimed she was not personally served with the foreclosure lawsuit Summons and Complaint.

Judge Agrees With Homeowner

Justice Janice Taylor sitting in the Supreme Court Foreclosure Part in Queens County was assigned to hear and determine the case. She found Mr. Pollard adequately demonstrated he did not receive actual notice of the start of the foreclosure proceeding by CitiMortgage. Justice Taylor took into consideration Mr. Pollard, although he was in default in responding to the Summons and Complaint, the period of default was only a relatively short period of time. She found in her decision that Mr. Pollard lacked any intent to abandon his claims and defenses to the foreclosure lawsuit brought by CitiMortgage. She also found that due to the short period of time that had gone by since Mr. Pollard had defaulted in answering the Summons and Complaint that CitiMortgage was not prejudiced by this delay. She also found the documents submitted by Pollard and his attorney demonstrated that he had a meritorious defense to the foreclosure based on the issue of lack of standing and the failure of CitiMortgage to comply with the Real Property Actions and Proceedings Law Sections 1304 and 1306 with regard to providing him with ninety days notice before bringing the foreclosure lawsuit. Pollard’s request to vacate the default in answering the Summons and Complaint and compelling CitiMortgage to accept the service and filing of an untimely Answer was granted.

Conclusion

Even if you ignore a foreclosure lawsuit, if the proper applications are presented to the court, the case can be reopened and brought back procedurally to the point in time when it was actually initiated.

Elliot S. Schlissel is a foreclosure defense lawyer representing homeowner throughout the Metropolitan New York area. He has represented hundreds of homeowners in foreclosure cases and helped numerous homeowners obtain mortgage modifications.