Chat Banner

Can We Help You?

Motion Practice in Foreclosure Lawsuits By the Attorneys for the Homeowner

ForeclosureThe financial institution’s attorneys represent what is referred to in a lawsuit as the plaintiff.  The attorneys for the homeowner in a foreclosure case represent the defendant.  The plaintiff is usually the party that is pushing the case through the courts as quickly as possible to obtain the relief their client wants which is in foreclosure cases to sell the homeowner’s home.  The homeowner defends the lawsuit and seeks to have it dismissed or delayed.

Motion to Dismiss

A homeowner can make a motion to dismiss a foreclosure lawsuit.  There are various basis for motions to dismiss.  A homeowner can make a motion claiming the 6 year statute of limitations expired before the foreclosure lawsuit was initiated.  The homeowner can claim that there is a jurisdictional problem in the underlying lawsuit by the financial institutions against the homeowner.  The homeowner can also claim there are issues such as defective service of the summons and complaint, lack of standing of the financial institution to initiate the lawsuit and other defenses.

Motion to Extend Time to Answer

A homeowner has 20 days to serve an answer if served personally and 30 days to put an answer in if served by any other means.  If the homeowner is late in submitting their answer or needs extra time to submit their answer to the summons and complaint of the financial institution, the homeowner’s attorneys can request the financial institution’s attorneys extend their time to answer.  If they don’t agree to this extension, the attorneys for homeowner can make an application to the court via motion to extend the homeowner’s time to submit a written answer to the summons and complaint.  In addition to extending the time to submit an answer, if the homeowner has submitted an answer and there are problems with the answer or the answer does not contain all the material necessary to properly defend the lawsuit, the homeowner can make an application to the court to amend their answer even after the time for the homeowner to amend their answer as of right has passed.

Discovery Motions

The homeowner can serve discovery demands on the attorneys for the financial institution.  These discovery demands can ask for the providing of information, documents, names of witnesses and other material needed by the homeowner to effectively litigate the foreclosure case.  If the homeowner serves discovery demands on the attorneys for the financial institution, the financial institution has a limited period of time to respond to these discovery demands.  If the financial institution fails to respond to the discovery demands or responds to some questions and doesn’t respond to others or makes unreasonable objections to the discovery demands, the homeowner can make a motion to force the financial institution to respond to the homeowner’s demands in an appropriate manner.  This motion is referred to as a motion to compel discovery.

Motion to Dismiss for Failure to Prosecute

Sometimes in a foreclosure case the attorneys for the financial institution let a file fall by the wayside.  In these situations the homeowner can give the financial institution written notice that unless the attorneys for the financial institution move forward with their case, they will make a motion to dismiss for failure to prosecute the case.  The homeowner’s attorneys must give the financial institution’s attorneys 60 days notice prior to making this motion.

Motion for Summary Judgment

Counsel for both the plaintiffs and for the defendants in any case can make motion for summary judgment.  In a situation where the counsel for the homeowner believes they can prevail in a foreclosure lawsuit on paper with legal arguments and present undisputed facts with regard to pertinent legal defenses submitted in counterclaims, they can move for summary judgment against the financial institution.

Course of Motion Practice

Most financial institutions have billions of dollars in assets.  Most homeowners are working people.  The attorneys for the financial institutions have much greater leeway to get involved in motion practice because their client, the “bank”, can pay them tens of thousands of dollars if necessary to prosecute their lawsuit.  Homeowners’ attorneys have to take into consideration the costs of litigation.  Motion practice by the homeowners’ attorneys has an expediential increase in the costs of foreclosure litigation.  In many situations homeowners simply cannot afford the costs of this type of motion practice.

Elliot S. Schlissel, Esq. is a foreclosure defense attorney.  He has been keeping homeowners in their homes for more than 3 decades.  Elliot, his partner Nathan DeCorpo and his staff of lawyers litigate cases throughout the Metropolitan New York area involving foreclosures.  They obtain mortgage modifications and also file bankruptcies for their clients when necessary to avoid their homes going to sell.  Elliot can be reached at Elliot@sdnylaw.com or the law firm can be called at 800-344-6431.

Wells Fargo Ordered to Pay $575 Million Regarding Unfair Trade Practices

Unfair Trade PracticesIn a recent case the Attorney Generals for all 50 States in the United States and the District of Columbia reached a settlement with Wells Fargo Bank. The settlement involves a variety of consumer protection claims and unfair trade practices utilized by Wells Fargo Bank. The settlement was in the amount of $575,000,000.

Wells Fargo Acted Improperly

Wells Fargo agreed to this settlement based on numerous improper actions it took and laws it violated. Among the many improper actions and laws it violated Wells Fargo charged customers for mortgage rate lock extension fees.

Wells Fargo has acknowledged millions of deposits, credit card and other accounts were created without the consumer’s permission. Wells Fargo was involved in the transfer of funds without consumer authorization. Wells Fargo acknowledged these improper actions took place between 2002 and 2017.

Texas Attorney General Ken Paxton stated “the settlement held Wells Fargo accountable for its widespread victimization of its customers through unfair and deceptive trade practices.”

Wells Fargo Acknowledges Problems

Wells Fargo’s Chief Executive Officer Tim Sloan stated: “this agreement disclosed our serious commitment to making things right in regard to past issues as we worked to build a better bank.”

schlissel-headshotElliot S. Schlissel, Esq. is the managing partner of Schlissel DeCorpo LLP. Elliot is a foreclosure attorney. He represents homeowners with regard to mortgage modifications and defending foreclosure lawsuits throughout the Metropolitan New York area. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Reverse Mortgages Explained

Reverse MortgagesA reverse mortgage is different than a conventional mortgage. A reverse mortgage is used by seniors who own homes. It seeks to allow them to utilize a portion of the home’s equity as collateral for a loan. The loan is usually not repaid until the homeowner or his or her surviving spouse dies or permanently moves out of the home. Most reverse mortgages give the estate of the homeowner 6 months either to sell the home and pay off the balance due on the mortgage or make other arrangements to satisfy the mortgage.

The Estate and the Reverse Mortgage

In the event there is not enough equity in the home to pay off what is owed on the reverse mortgage the estate and the heirs are not liable for the unpaid portion of the reverse mortgage.

Eligibility for Reverse Mortgage

A homeowner must be a minimum of 62 years of age to be eligible for a reverse mortgage. If the homeowner does not own the home free and clear, all existing prior mortgages must be paid off from the proceeds of the reverse mortgage. If there are other liens or judgments, they also must be paid from the reverse mortgage. There are also financial eligibility requirements necessary to obtain a reverse mortgage.

Obligations Involving Reverse Mortgages

Reverse mortgages are usually only given on homes which are an individual’s primary residence. The homeowner is responsible for paying the property taxes on the home. In addition the homeowner must pay for the homeowner’s insurance and maintain the home according federal housing administration requirements.

Estate Issues

When both of the homeowners die or when the home is no longer the primary residence of either of the homeowners for a period in excess of a year the reverse mortgage can be called due. At that point the homeowners or the estate of the homeowners can either repay the reverse mortgage or have the house listed for sale. If upon the sale of the home more funds are received than are owed on the reverse mortgage, the balance of the funds received over and above the repayment of the reverse mortgage belong to the estate. If there are not sufficient funds to pay off the reverse mortgage, the bank loses out and can’t recover the portion of the amount owed which is in excess of the sale price of the home.

Is a Reverse Mortgage Right for You

A reverse mortgage allows senior homeowners to access funds which are tied up in the equity of their homes. Sometimes this is an appropriate action to be taken. However, it is not always appropriate. A reverse mortgage will not give the homeowner access to 100% of the funds in the house. Reverse mortgages usually only give the homeowner 60 or 70% of the funds related to the equity in the house. In some cases it is simply better for the homeowner to sell the home, rent an apartment and move into a less expensive residence.

schlissel-headshotElliot S. Schlissel, Esq. is a foreclosure attorney who has been representing homeowners with regard to reverse mortgages, foreclosures and other real estate related issues for more than 3 decades. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Statute of Limitations Defenses in Foreclosure Cases

Statute of Limitations DefensesThe statute of limitations is set by statute in various types of cases. The statute of limitations to bring a foreclosure case on a defaulted mortgage is 6 years from the date of default or from the date of the acceleration of a mortgage. For a variety of reasons, foreclosure cases sometimes are initiated and then withdrawn, dismissed or discontinued. If a foreclosure case is withdrawn or dismissed the statute of limitations usually starts running from the start of the original foreclosure case. If the second foreclosure case is not initiated within 6 years from the date of the acceleration of the mortgage in the first case, the statute of limitations if plead is a complete defense to the foreclosure action.

Acceleration of the Mortgage

When the homeowner defaults on making the payments on their mortgage the financial institution can accelerate the maturity of the loan. The financial institution can declare all of the payments are presently due and owing on the mortgage. The financial institution is not limited to foreclosing on the past due payments. They can recover the entire unpaid balance of principal and interest on the mortgage. To do this, the financial institution accelerates the mortgage.

The Acceleration.

The acceleration of a mortgage requires the financial institution to notify the homeowner. This is usually done by sending a letter to the homeowner advising them notice of the acceleration or simply by starting a foreclosure lawsuit. It should be noted a default letter which states the loan balance “may be” accelerated if the homeowner does not become up to date on his mortgage payment, does not necessarily accelerate the loan. In order to accelerate the loan the notice of default must state that the loan “will” be accelerated if the default is not cured.

De-Acceleration of the Mortgage

A new issue with regard to the acceleration of the mortgage involves financial institutions taking action to de-accelerate the mortgage. There is currently case law that “a lender may revoke its election to accelerate the mortgage but it must do so by an affirmative act of revocation occurring during the 6 year statute of limitations period subsequent to the initiation of the prior foreclosure action.” This can be accomplished by a letter to the homeowner.

Conclusion

If you believe that you have a statute of limitations defense in a foreclosure case, it is important that you retain an experienced foreclosure defense counsel with regard to this issue. The re-accelerating of the statute of limitations defense to the foreclosure lawsuit should be dealt with immediately upon receiving a copy of the summons and complaint. The statute of limitations must be pled as an affirmative defense in your answer if you hope to utilize it as a defense to the lawsuit. Remember if the statute of limitation defense applies you may be looking at having a free home in your near future!

schlissel-headshotElliot S. Schlissel, Esq. is the managing partner of Schlissel DeCorpo LLP. Elliot has been litigating foreclosure defense matters for more than 35 years throughout the Metropolitan New York area. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Foreclosure Problems in New York

Foreclosure in New YorkHave 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.

Foreclosure Lawsuit

foreclosure lawsuit on a mortgageThe plaintiff had brought a foreclosure lawsuit on a mortgage. All of the defendants other than Bank of America defaulted. They did not submit an answer to the summons and complaint. The plaintiff moved under court rules for an expedited proceeding. In some foreclosure actions to be eligible for an expedited procedure the plaintiff is required to waive a deficiency judgment.

No Referee Appointed

Justice Robert Quinian who sits in a foreclosure court in Suffolk County exercised his discretion to make decisions in this case without appointing a referee to compute the amount owed by the homeowner. The plaintiff in this case failed to directly provide a waiver and the court therefore could impose such a condition on the plaintiff if plaintiff’s application met statutory requirements.

More Than One Year Had Passed Since The Default

Justice Quinian found plaintiff’s motion was brought more than a year after the defendants defaulted in submitting an answer. Justice Quinian found there is a provision plaintiff could have alleged if they did not intend on abandoning the complaint, however the Judge did note that no attempt at providing a reasonable explanation for plaintiff’s delaying in an excess of one year was submitted. He therefore denied plaintiff’s motion and denied their ability to move forward with the default under the expedited procedures.

schlissel-headshotElliot S. Schlisel, Esq. is the managing partner of Schlissel DeCorpo LLP. He is a foreclosure defense lawyer litigating cases throughout the Metropolitan New York area for more than 35 years. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Foreclosure Lawsuit Dismissed The Statute of Limitations Had Expired

Barred by Statute of LimitationsIn the case before Justice Peter Mayer who sits in Supreme Court in Suffolk County, Rokoetz had executed a note and mortgage. This note and mortgage secured a lien against his home. Rokoetz defaulted in making payments on this mortgage. CS First Boston brought a foreclosure lawsuit in Suffolk County. They were granted an order of reference to sell the property and the matter was thereafter settled under a written agreement in 2007.

The Second Foreclosure Lawsuit

In 2017, 10 years after the original lawsuit had been started, the plaintiff brought a second foreclosure lawsuit against Rokoetz. Rokoetz moved for dismissal of the foreclosure lawsuit claiming the action was barred by the 6 year statute of limitations. Counsel for the financial institution claimed CS First Boston lacked standing to commence the 2005 foreclosure lawsuit as the mortgage was not assigned to it until after the commencement of the lawsuit. They therefore claimed they lacked authority to accelerate the loan. They claimed the loan was never properly accelerated until the plaintiff did so in the 2017 lawsuit.

The Loan was Accelerated

Justice Mayer found that the CP Boston’s claims were not valid. He ruled that CS First Boston’s 2005 complaint constituted an acceleration of the loan and the 2007 agreement did not constitute an unequivocal affirmative notice to Rokoetz that the acceleration had been revoked. Justice Mayer ruled Rokoetz had established the lawsuit was commenced outside the 6 year statute of limitations and was therefore untimely and needed to be dismissed.

schlissel-headshotElliot S. Schlisel is the managing partner of Schlissel DeCorpo LLP. He has been litigating foreclosure cases throughout the Metropolitan New York area for more than 35 years. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Foreclosure Lawsuit Barred by Statute of Limitations

Foreclosure notice and keys on a court table.HSBC Mortgage Corporation had obtained a judgment in 2009 in a foreclosure case.  They also had an order to sell the homeowner’s home.  In 2013 the 2009 judgment was vacated and the lawsuit discontinued for “administrative reasons.”  However, the homeowner continued to receive statements that her loan was referred to foreclosure or accelerated.  The new servicer, Fay Servicing LLC became involved in 2016.  A lawsuit by the homeowner had been brought to quiet title in this case.

Action by HCBS’s Attorneys

In 2017 Rosicki & Rosicki & Associates, attorneys for the financial institution sent a “Notice of Default” a pre-foreclosure notice, claiming the homeowner owed $229,220.00.  They also threatened legal action against the homeowner.  The notice by Rosicki & Rosicki & Associates said the default date was 2011.  The actual default date was May 2008.

Violation of Fair Debt Collection Protection Act

United States District Court Judge Frederick Block sitting in the Eastern District in New York denied dismissal of both Rosicki and Fay Servicing violation of the Fair Debt Collection Practices Act.  The letter they sent threatening to foreclose on a mortgage was barred by the statute of limitations.  Judge Block held the homeowner presented documentation her mortgage was accelerated and the acceleration was not revoked.  She said the foreclosure action was time barred pursuant to the New York State schlissel-headshotstatute of limitations on bringing foreclosure lawsuits.  Judge Block allowed the homeowners to continue litigating under the Fair Debt Collection Practices Act because  the foreclosure lawsuit was barred due to the statute of limitations.

Elliot S. Schlissel, Esq. is a foreclosure lawyer.  He has been representing homeowners in foreclosure defense cases for more than 35 years.  He can be reached at 800-344-6431 or e-mailed at: Elliot@sdnylaw.com for a free consultation.

Lawsuit Dismissed: Borrower Was Not Served With Foreclosure Notice

Foreclosure

In a case before United States District Court, Judge Nicholas Garaufis, who sits in the Eastern District (Federal Court of New York), sometime between executing a note and mortgage in 2005 and 2017 regarding a foreclosure Stern sold the mortgaged property.  The property was subdivided among new owners.  In 2016 the plaintiff did not serve Stern a notice under New York Real Property Action and Proceedings Law Section 1304 which was to provide homeowners notice they were at risk of losing their home in foreclosure.

Homeowner Moved Out of the Property

Stern was not served with the appropriate notice under Real Property Action and Proceedings Law Section 1304 because the bank’s lawyers thought  he was not entitled to such notice because Stern no longer lived in the property.

Foreclosure Lawsuit Dismissed

US District Court Judge Nicholas Garaufis dismissed the foreclosure lawsuit for failure to serve Stern with the required pre-foreclosure notice under Real Property Action and Proceedings Law Section 1304.  This section requires the pre-foreclosure notice to be sent to the borrower at the time of the acceleration of the motion.  This is true even if the borrower later moves out of the property which secures the loan.  The fact that Stern no longer occupied the property as is primary residence did not excuse the financial institution’s obligation to serve Stern with notice of the foreclosure lawsuit.  Judge Garaufis ruled when a lender, assignee or mortgage servicer fails to show strict compliance with the Real Property Action and Proceedings Law Section 1304, the foreclosure lawsuit must be dismissed.

Attorney Elliot Schlissel

Elliot S. Schlissel, Esq. is the managing partner of Schlissel DeCorpo LLP.  The firm has been representing homeowners throughout the Metropolitan New York area regarding foreclosure matters for more than 30 years.  He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Homeowner Failed to Assert Affirmative Defenses: Bank Granted Judgment of Foreclosure and Sale

Foreclosure and Sale

In a matter before Supreme Court Justice Howard Heckman, who sits in Suffolk County, a bank brought a foreclosure lawsuit against Bourie. The bank claimed in the lawsuit Bourie defaulted in making his mortgage payments. The bank eventually brought a motion for summary judgment asking that the answers submitted by Bourie be stricken. In response to the bank’s summary judgment motion, Bourie argued the bank failed to prove service of the Summons and Complaint in compliance with the Fair Debt Collection Practices Act.

“Fair Debt Collection Practices Act”

The bank in its opposing papers pointed out Bourie had failed to assert the affirmative defense of the bank’s alleged failure to serve a mortgage default notice. Justice Heckman ruled Bourie’s failure to submit an affirmative defense of the bank’s failure to serve him with a notice of default acted as a waiver of his rights to assert compliance in opposition to the bank’s summary judgment motion. Justice Heckman also ruled Bourie waived his Fair Debt Collection Practices Act defense by his failure to assert it as an affirmative defense in his answer. The judge granted the bank’s summary judgment motion and allowed them to move forward with the sale of Bourie’s home.

Conclusion

When the bank initiates a foreclosure lawsuit, a homeowner has either 20 days or 30 days to submit a written answer to the bank’s lawsuit. In the answer the homeowner must allege all of his defenses and affirmative defenses to the lawsuit. If the homeowner fails to list a defense or affirmative defense to the lawsuit, it is considered that he has waived his right to utilize this defense or affirmative defense in his case.

schlissel-headshot Elliot S. Schlissel is the managing partner of Schlissel DeCorpo LLP. The firm has been representing homeowners throughout the Metropolitan New York area regarding foreclosure matters for more than 30 years. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

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

  • viewimg1
  • viewimg1
  • viewimg2
  • banner-changes

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.

Copyright © 2018 By The Law Offices of Schlissel DeCorpo. All Rights Reserved. Concept, Design and Hosting by GetLegal Web Development Team.