Elliot Schlissel

Bank Fails to Show Standing to Maintain Foreclosure Lawsuit

December 13, 2018 by Elliot Schlissel

Bank Fails To Show Standing To Maintain Foreclosure Lawsuit In a case before Justice Robert Muller sitting in Clinton County, Beneficial Finance Service provided a mortgage loan to Carpenter. Carpenter defaulted in making payments to Beneficial Finance Service. Caliber Home Loans, acting under a Power of Attorney for Beneficial Finance Service, started a foreclosure lawsuit against Carpenter. Carpenter claimed defenses to the lawsuit including a lack of standing by Caliber Home Loans.

Summary Judgment Application

The Calibers brought a motion for summary judgment against Carpenter. They sought to have his answer dismissed. Justice Robert Muller noted plaintiff’s papers did not contain a power of attorney. They also did not contain a servicing agreement authorizing Caliber Home Loans to act as attorney in fact and servicer.

The Judge’s Decision

Justice Muller found it was unclear whether the affidavit by Neilson indicating he was familiar with Caliber Home Loans business records also claiming that Caliber was the custodian receiving physical possession of the note and mortgage from Beneficial Finance Service was valid. Justice Muller found it was also unclear whether the plaintiff actually had physical possession of the note. The assignment of the mortgage did not discuss who had possession of the note. It only discussed the transfer of the mortgage.

Justice Muller rendered the decision stating Beneficial Home Servicer and Caliber Home Loans failed to establish standing to bring the foreclosure lawsuit and the summary judgment motion was denied.

Conclusion

Financial institutions must prove they are the appropriate party to bring a foreclosure lawsuit. The defense to the foreclosure lawsuit being brought by an institution that does not have the proper authority is called “lack of standing.”

schlissel-headshot Elliot S. Schlissel is a foreclosure attorney who has been fighting foreclosure lawsuits for more than three decades. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Foreclosure Action Dismissed: Bank Had No Standing

December 11, 2018 by Elliot Schlissel

In a case in Orange County before Justice Maria Vasquez-Doles a plaintiff moved for summary judgment claiming there were no questions of fact and that a trial was not necessary in this foreclosure case. They requested an appointment of a referee to compute the amount which was owed. In addition, they wanted a default judgment against non-appearing defendants. The original note and mortgage was between Home Funds Direct and the homeowners. It was claimed the homeowners defaulted by not making timely mortgage payments. US Bank Trust moved for summary judgment. The defendants argued US Bank Trust did not have standing to bring the lawsuit. They claimed MIRS was never authorized by the original lender to assign the note and mortgage to US Bank Trust. The defendants claimed the note was in the possession of “a custodian Wells Fargo Bank” not US Bank Trust.

The Judge’s Decision

Justice Vasquez-Doles found US Bank Trust had not met its burden of proof to show it had standing to bring the foreclosure lawsuit. She found they failed to establish a prima facie case that US Bank Trust was in possession of the note because Wells Fargo continued to possess the original note. She also found US Bank Trust could establish the standing by showing the note was assigned to them, but they failed to do this. She also pointed out there is no endorsement to MIRS on the note giving it authority to assign the note. The evidence presented in the case was there was no evidence indicating MIRS had a right to assign the note. MIRS also could not transfer something it did not have possession of. Although US Bank Trust could have established physical delivery of the note to them, they did not undertake to do this in this case. Justice Vasquez-Doles therefore dismissed the case.

Elliot S. Schlissel is a foreclosure lawyer representing homeowners throughout the Metropolitan New York area for more than 35 years. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: foreclosure, foreclosure defense

Reverse Mortgage Foreclosure Issues

November 27, 2018 by Elliot Schlissel

Reverse mortgages are made to homeowners aged 62 or older. They allow the homeowners to access the equity in their home to pay their bills while allowing them to continue to live in their homes. In situations involving reverse mortgages the homeowner no longer makes monthly payments. The amount owed to the financial institution gets charged against the homeowner’s home equity and these loans are usually insured by the Federal Housing Administration. The reverse mortgage is not due and payable until the homeowner’s death.

Taxes and Insurance on the Home

Although the homeowner does not have to make mortgage payments, the homeowner is usually responsible for paying the property taxes, school taxes and maintaining their homeowner’s insurance. The failure by homeowners to pay these expenses can cause the financial institution that provided the reverse mortgage to bring a foreclosure lawsuit based on the homeowner’s non-compliance with the conditions involved in the mortgage.

Reverse Mortgage Foreclosure Default

New legislation requires reverse mortgage defaults now have to receive a 90 day preforeclosure notice under the Real Property Actions and Proceedings Law Section 1304. The amendment to this law causes financial institutions to participate in mandatory settlement conferences with regard to working out alternatives to foreclosing on the home regarding reverse mortgages.

The new reverse mortgage law indicates a list of the items that can trigger a reverse mortgage foreclosure. These include:

failure to include a required certificate of occupancy on an annual basis
death of the named borrower
failure to pay real property taxes
failure to maintain homeowner’s insurance
failure to pay water bills and sewer bills
failure to make required repairs
failure to occupy the home as a principal place of residence

Conclusion

This new legislation provides homeowners who have reverse mortgages many of the same protections homeowners who have conventional mortgages have. In addition, it provides them with notice as to any of the possible items which could cause their home to go into foreclosure.

Filed Under: Foreclosure, Mortgage Modification, Reverse Mortgages Tagged With: foreclosure, reverse mortgages

Sue the Mortgage Loan Servicing Company

October 24, 2018 by Elliot Schlissel

Loan servicing companies can be sued. Loan servicing companies can make errors that have a negative impact on mortgage holders. Loan servicing companies can inaccurately calculate the amount due and owing by the homeowners. Sometimes they do not properly review mortgage modifications submitted by the homeowners. Upon request sometimes they provide inaccurate loan reinstatement information.

Good Faith

Mortgage holders are supposed to act in good faith. New York Civil Practice Law and Rules Section 8408 defines what is considered “bad faith” by a mortgage company.

Loan Servicing Companies

Loan servicing companies often hire inexperienced poorly paid individuals to act as their customer service representatives concerning the submission of mortgage modification applications. Sometimes they do not appropriately train their personnel with regard to the issues faced by homeowners submitting mortgage modification applications.

The process of submitting a mortgage modification usually involves the submission of information to the loan servicing company. Their customer service representatives therefore input the data into a computer program called an algarhythm. The algarhythm actually determines whether the homeowner qualifies for a mortgage modification. If the data is not properly put into the computer program the decision to deny a homeowner a mortgage modification can be based on an error made by the data processing person who inputed the data.

Foreclosure Defense Attorneys

Foreclosure attorneys experienced with the mortgage modification process are often able to help homeowners who have in the past had problems obtaining mortgage modifications.

Elliot S. Schlissel is a foreclosure lawyer representing homeowners for more than 3 decades. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Filed Under: Foreclosure, Mortgage Modification Tagged With: foreclosure, mortgage modification

Technical Foreclosure Defenses

October 22, 2018 by Elliot Schlissel

In almost all foreclosure situations the homeowners have applied for a mortgage, they have been approved by the financial institution, they obtained the mortgage, went to closing and purchased their home. Thereafter, the homeowners fell behind on their mortgage. So how can homeowners who borrowed the money and have not made the payments defend a foreclosure lawsuit? Most foreclosure defenses are based on the failure of the financial institution, its attorneys and/or its employees to comply with the many federal, state, local and other regulatory requirements involved in mortgage lending, recording of mortgages, servicing and administrating the mortgages, modifying the mortgages and providing the homeowners with the appropriate statutory notices they are entitled to. Lenders need to comply with many state and local ordinances andrules.

Issues Related to Closings

All financial institutions have disclosure requirements regarding what takes place at real estate closings. They are also laws and rules regarding predatory lending, fraud, unreasonable fees and other issues related to the underwriting of mortgages.

Standing Issues

Financial institutions have to produce the note. They need the original note before they can proceed with the foreclosure. Clear copies of the loan documents should be attached to the complaint. Homeowners should receive 30 days notice under Real Properties Actions and Proceedings Law Section 1304. There may be defective assignments of the mortgage. There may be late assignments of the mortgage. The individuals signing affidavits related to the foreclosure may not have had the appropriate authority to sign those affidavits. Some assignments of the mortgage may be invalid.

Mortgage Modifications

There are many issues that can occur with regard to the mortgage modification process. Sometimes financial institutions do not negotiate in good faith. They have an obligation in New York State to do this. Trial modifications sometimes are approved and then the permanent modifications are arbitrarily denied. Payments made under the trial modifications are sometimes kept by the financial institutions and homeowners are not given credit for those payments.

Litigation Issues

The Summons and Complaints in the foreclosure lawsuit must be properly served on the appropriate party. Homeowners are entitled to 90 days notice under the Real Property Actions and Proceedings Law before the foreclosure lawsuit is started. Financial institutions need to schedule foreclosure settlement mortgage conferences. They need to file affidavits of due diligence. The death of the homeowner can also create significant issues for the financial institution. Financial institutions also need to comply with the Fair Debt Collections Practices Act.

Legal Defenses and Affirmative Defenses

There are many types of defenses and affirmative defenses that can be alleged in foreclosures other than “I don’t owe the money”. The legal defenses need to be plead in the homeowner’s answer and they need to be backed up by detailed discovery demands forcing the financial institution to turn over all their books and records regarding the underwriting of the mortgage, the closing assignments of the mortgage and compliance with federal and state statutes. The way to win a case often involves investigating what the bank and their attorneys did and what they didn’t do. Finding the bank or their attorneys made a mistake in the mortgage or foreclosure process can be a basis for having the foreclosure lawsuit dismissed.

Elliot S. Schlissel, Esq. is a foreclosure lawyer having represented homeowners throughout the Metropolitan New York area for more than 3 decades. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Filed Under: Foreclosure Defense, Mortgage Modification Tagged With: foreclosure defense, mortgage modification

Foreclosure Terms

September 25, 2018 by Elliot Schlissel

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 30 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.

Filed Under: Foreclosure, Foreclosure Defense

Foreclosure Solutions

September 18, 2018 by Elliot Schlissel

Foreclosure Solutions 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 Elliot Schlissel 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 35 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.

Filed Under: Foreclosure, Foreclosure Defense

Foreclosure Problems in New York

August 17, 2018 by Elliot Schlissel

Have you fallen behind on your mortgage? Have you missed more than one mortgage payment? Could it be you’ve missed 2 or 3 or even more mortgage payments? If any of these problems have happened to you, the bank that holds your mortgage may take legal action to come after your home. The legal action taken by the financial institution to take the home back is called a foreclosure lawsuit.

How It Starts

The first item you should receive from the attorneys from the financial institution is called a 90 day Notice. This Notice states that you’ve fallen behind on your mortgage and unless you become current within the next 90 days your financial institution will be bringing a foreclosure lawsuit against you. The foreclosure lawsuit is commenced by the attorneys for the financial institution by drafting and filing a summons and complaint with the County Clerk in the County in which your home is located. Thereafter a process server is hired to serve the Summons and Complaint upon you either at your residence or at your principal place of employment.

Responding to the Foreclosure Proceeding

If served with the Summons and Complaint you must file an Answer. Submitting an application for a mortgage modification is not a response to a foreclosure lawsuit. Should you submit a mortgage modification application and if you do not serve and file an Answer to the Complaint with the Court and opposing counsel, you will default in the foreclosure case. A default is an acknowledgement the allegations in the financial institution’s foreclosure complaint against you are true. This allows the foreclosure lawsuit to move through the courts unopposed and faster.

Foreclosure Settlement Conferences

After a foreclosure lawsuit is initiated by the attorneys for the financial institution, the lawyers for the financial institution will file a request for court intervention. This will cause the court to schedule a foreclosure settlement conference. The purpose of foreclosure settlement conferences is to work out arrangements between the homeowner and the attorneys for the financial institution to allow the homeowners to stay in their homes. This is usually accomplished by the homeowner submitting a mortgage modification to counsel for the financial institution and having it monitored by the court. The progress of the mortgage modification will be supervised by a referee at the foreclosure settlement conference part at the court. It may take several conferences to finalize a mortgage modification. However, it must be pointed out, there is no guaranty you will receive a mortgage modification. Financial institutions provide homeowners with mortgage modifications when they meet the criteria developed by the financial institution with regard to approval of mortgage modifications. The purpose of the foreclosure settlement conferences is for the referee to make sure the financial institutions and their attorneys are negotiating in good faith.

Elliot S. Schlissel, Esq. is the managing attorney of Schlissel DeCorpo LLP. The law firm has more than 30 years of experience representing hundreds of homeowners throughout the Metropolitan New York area with regard to litigating foreclosure lawsuits and helping them obtain mortgage modifications. The firm can be reached at 800-344-6431 or by e-mail at Elliot@sdnylaw.com.

Filed Under: Foreclosure

Stop the Foreclosure Sale

July 30, 2018 by Elliot Schlissel

The purpose of this article is to discuss legal action that can be taken to stop a home from being sold at a foreclosure sale. A foreclosure lawsuit is the start of a process by the financial institutions to take back a home. At the end of the process the attorneys for the financial institution ask that a referee be appointed to sell the house. The referee thereafter advertises the house for sale. A sale date is established where the house will be sold on the courthouse steps. As the sale date approaches many homeowners dismay and give up. We strongly suggest this is not the way to deal with a sale date on a home. There are a variety of legal actions which can be taken to stop the foreclosure sale of a home.

Order to Show Cause

An emergency Order to Show Cause can be brought to the judge the foreclosure case is pending before. The Order to Show Cause can be served on the court requesting the court stop the sale from moving forward. If the Order to Show Cause is signed by the judge it is thereafter served upon the attorneys for the bank and referee. This will stop the sale of the house from going forward. If the judge in the New York State court does not sign the Order to Show Cause and stop the sale from moving forward there are other alternatives to stopping the sale of the house.

Chapter 13 Bankruptcy

Bankruptcies are brought in federal courts. Upon filing of a Chapter 13 bankruptcy the federal bankruptcy court issues a stay stopping all legal proceedings in the state court. The state court foreclosure action is frozen. Your house will not be sold. A Chapter 13 bankruptcy allows you to reorganize your finances, establish a plan to catch up on your mortgage and it keeps you and your family in your home.

Chapter 7 Bankruptcy

A Chapter 7 bankruptcy is also brought in a federal bankruptcy court. The filing of this bankruptcy stops the foreclosure in its tracks. The attorney filing the bankruptcy serves a copy of the bankruptcy notice on both the attorney for the financial institution and the referee who seeks to sell your home. This stops the sale of the house from moving forward.

The Chapter 7 bankruptcy is also known as a straight bankruptcy. It does not involve a plan to pay off the mortgage. It seeks to eliminate your personal liability on the mortgage. Therefore, if you owe $500,000.00 on the mortgage and your home is sold for $250,000.00 you will not have to pay the deficiency of the $250,000.00 the bank did not collect at the foreclosure sale. The filing of a Chapter 7 bankruptcy also ties up your case in federal court for months.

Mortgage Modifications

Once your case is tied up either by the Order to Show Cause , a Chapter 7 bankruptcy or Chapter 13 bankruptcy, a mortgage modification application can be submitted. Even if you were turned down in the past, you can still submit another mortgage modification application. God helps those who help themselves. All the bank can do is say no again if you submit another mortgage modification. However, during the mortgage modification underwriting process the bank generally will not move forward with trying to sell your home.

Foreclosure Defense Lawyers

The best way to protect yourself and your family and keep your home is to hire an experienced foreclosure lawyer. The law office of Schlissel DeCorpo LLP has been representing homeowners for more than 3 decades. We have hundreds of cases pending throughout the courts in the Metropolitan New York area and our attorneys are in court virtually every day defending our clients and keeping them in their homes. You can call us for a free consultation at any of our three offices. Our phone numbers are 516-561-6645, 631-319-8262 and 718-350-2802. Our phones are monitored 7 days a week. We can be e-mailed at Elliot@sdnylaw.com. We aggressively represent our clients and do everything in our power to keep them in their homes.

Filed Under: Foreclosure, Foreclosure Defense

House Scheduled to be Sold in Foreclosure: What Do You Do?

July 21, 2018 by Elliot Schlissel

At the end of a foreclosure sale a referee will advertise your home to be sold on the court house steps. The notice of the sale is published in local newspapers where the homeowners reside a minimum of four weeks prior to sale date. When this happens the homeowner usually receives notice of the scheduled sale date. Please note however if the homeowner has not hired an attorney or participated in the foreclosure litigation the financial institution and their attorneys are not legally obligated to give the homeowner notice of the foreclosure sale.

Stopping the Foreclosure Sale!

There are 2 main avenues a homeowner can pursue to stop a foreclosure sale. The first avenue is by filing an emergency order to show cause in the New York State court where the foreclosure is pending. The second avenue is by filing a bankruptcy in the United States Bankruptcy Court (a Federal Court) and obtaining an automatic stay from a bankruptcy judge to stop the foreclosure sale pursuant to the State Court order.

Bankruptcy Options

The filing of a bankruptcy guarantees that the foreclosure sale will be immediately stopped. Bringing an order to show cause in the New York State Court where the foreclosure is pending will require the judge assigned to the case to use their discretion as to whether to stop the sale.

Types of Bankruptcies

There are 3 types of bankruptcy that can stop a foreclosure sale. These are a Chapter 7, Chapter 13 and Chapter 11 bankruptcies. Chapter 13 and Chapter 11 bankruptcies are reorganizations involving terms designed to allow the homeowner to catch up on the mortgage arrears. A Chapter 7 bankruptcy is a straight bankruptcy that simply eliminates or “discharges” the debt.

Should you be facing a foreclosure sale it is strongly recommended you immediately contact a foreclosure lawyer and review the aforementioned options with him or her.

Elliot S. Schlissel is a partner in Schlissel DeCorpo LLP, a law firm that has been fighting foreclosures for more than 3 decades. He can be reached for a free consultation at Elliot@sdnylaw.com or at 800-344-6431. The law firm maintains offices in Nassau, Suffolk and Queens Counties.

Filed Under: Foreclosure

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Summary Judgment Application

The Judge’s Decision

Conclusion

The Judge’s Decision

Taxes and Insurance on the Home

Reverse Mortgage Foreclosure Default

Conclusion

Good Faith

Loan Servicing Companies

Foreclosure Defense Attorneys

Issues Related to Closings

Standing Issues

Mortgage Modifications

Litigation Issues

Legal Defenses and Affirmative Defenses

How It Starts

Responding to the Foreclosure Proceeding

Foreclosure Settlement Conferences

Order to Show Cause

Chapter 13 Bankruptcy

Chapter 7 Bankruptcy

Mortgage Modifications

Foreclosure Defense Lawyers

Stopping the Foreclosure Sale!

Bankruptcy Options

Types of Bankruptcies

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