CHAPTER 13 BANKRUPTCY
A Chapter 13 Bankruptcy formerly known as “a wage earner’s plan” is a reorganization of the homeowner’s finances for a period up to 5 years. This reorganization of the finances is under the supervision of a Federal Trustee. A bankruptcy attorney can help a homeowner figure out which type of bankruptcy works best for the homeowner. A Chapter 13 Bankruptcy will give a homeowner up to 5 years to get their mortgage current. The filing of a Chapter 13 Bankruptcy which will bring it to fruition to get the mortgage current is a complicated series of transaction.
Bankruptcy Attorney
A bankruptcy attorney that handles foreclosures is usually the best solution to a homeowner who seeks to reorganize their finances and get their mortgage current. Your home is your most valuable asset. A homeowner should do everything in their power not to lose their home. Bankruptcy is not a dirty word. It is the utilization of a federal program to bring a mortgage current.
Credit Issues
Many homeowners believe that a bankruptcy will prevent them from ever having good credit. The opposite is true. The bankruptcy will eliminate the problem and allow the homeowner to recover their credit. Homeowners can file a Chapter 13 Bankruptcy to set up a 60 month plan to bring their mortgage current. While the bankruptcy is pending the foreclosure cannot move forward. This allows homeowners to sleep at night and not worry about losing their home.
The law firm of Schlissel DeCorpo LLP has been helping families deal with mortgage and foreclosure problems for more than 30 years. We can be reached at 718-350-2802, 516-561-6645 or 631-319-8262 or by e-mail at info@sdnylaw.com.
THE MORTGAGE
When homeowners buy a home, they usually have to obtain funds from a financial institution to consummate the transaction. The financial institution loans the homeowners money and takes out a mortgage on the home. The homeowners must sign a promissory note and that is secured by a lien on the house and the lien on the house is called a mortgage. A promissory note is a legal obligation for the homeowner to pay the debt.
The Mortgage Lien
A promissory note is an unsecured debt. However, the lien created by the mortgage on the home makes the note secured by the home. The mortgage gives the financial institution a security interest in the property. If the homeowner fails to pay the mortgage on a timely basis, the financial institution brings a foreclosure lawsuit to sell the home so they can be paid.
Foreclosure Defense Solution
There are many things that can be done to avoid a home going into foreclosure. Forbearance agreements, mortgage modifications and refinancing are some possible solutions for homeowners’ financial situations that caused them to fall behind on their mortgage payments. In addition, a homeowner can also go into a Federal Bankruptcy Court to file a bankruptcy. This stops the foreclosure from moving forward in New York State Supreme Court.
The law firm of Schlissel DeCorpo LLP has been helping families deal with mortgage and foreclosure problems for more than 30 years. We can be reached at 718-350-2802, 516-561-6645 or 631-319-8262 or by e-mail at info@sdnylaw.com.
FORECLOSURE MISTAKES
When homeowners find themselves unable to make their mortgage payments there is a tendency to ignore the fact their mortgage payments are falling behind. When the foreclosure lawsuit starts the banks serves the homeowners with a Summons and Complaint. Unfortunately, many homeowners simply ignore the fact they are being sued. They put their heads in the sand and hope things are going to straighten out on their own. That doesn’t happen.
Defending a Foreclosure Lawsuit
There are legal and equitable defenses that can be raised in a foreclosure case. However, there has to be a timely response to the Summons and Complaint to initiate the equitable and legal defenses that exist. In addition, a mortgage modification can be undertaken to put the arrears at the end of the mortgage payments.
When homeowners are served the Summons & Complaint and they ignore it there are negative consequences. In the end these negative consequences cause the home to be sold.
Time Request to Respond to a Foreclosure
Homeowners that are served the Summons and Complaint have at the most 30 days to submit an answer with their response to the Summons and Complaint, affirmative defenses and possibly countersue the bank to set the mortgage aside. The first step in this process is to speak with a foreclosure attorney. Homeowners owe it to themselves to have at a minimum a consultation to find out what their rights are and how they can stop the foreclosure from moving forward towards the sale of their home..
The law firm of Schlissel DeCorpo LLP has been helping families deal with mortgage and foreclosure problems for more than 30 years. We can be reached at 718-350-2802, 516-561-6645 or 631-319-8262 or by e-mail at info@sdnylaw.com.
SALE OF A HOME IN FORECLOSURE
A foreclosure lawsuit is initiated by the attorneys for the lender by filing a Summons and Complaint in the County Clerk’s office of the county where the home is located. Thereafter the Summons and Complaint is served on the homeowners by a process server. The end of a foreclosure lawsuit is the sale of the homeowner’s home. The sale is an auction sale where anyone can come and bid as long as they have at least a third of the money up front and the rest within a few days.
The Home Is Under Water
There are cases where the foreclosure sale will not provide enough money to repay the mortgage loan. This is a situation where the home is called said to be Under Water. Under water means that the home is worth less than the amount that is owed on it. In these situations, the bank can move for a deficiency judgment against the homeowner. Here is an example of that situation: The homeowner owes $850,000. The home is sold for $750,000 at the foreclosure sale. There is now a deficiency of $100,000. The homeowner still owes the bank the $100,000. This means the homeowner can lose their home and still owe the bank a lot of money. Filing a bankruptcy can stop the foreclosure sale and in certain circumstances eliminate deficiency judgments against the homeowner.
After the Sale
After a home is sold at a foreclosure sale the new owners need to notify the homeowners of the details of the sale. Then the new owners start to take action to have the prior homeowners removed from the house. Unfortunately, the loss of a family’s home is a very unpleasant experience.
The law firm of Schlissel DeCorpo LLP has been helping families deal with mortgage and foreclosure problems for more than 30 years. We can be reached at 718-350-2802, 516-561-6645 or 631-319-8262 or by e-mail at info@sdnylaw.com.
FORECLOSURE IN NEW YORK
In New York a foreclosure is a court supervised process. A lender retains an attorney and files a lawsuit to enforce the lender’s right to take the home back for failure of the homeowner to fulfill their requirements of making payments under the mortgage. Prior to initiating the foreclosure lawsuit the lender must give the homeowner a ninety (90) day pre-foreclosure notice. The purpose of this notice is to inform the homeowners that they are in default under the terms of their mortgage. This notice also provides the homeowners with information regarding how they can receive help to deal with the foreclosure process.
The Filing of the Lawsuit
The lender’s attorneys draft a Summons and Complaint and file it in the County Clerk’s Office of the County in which the home is located. Upon making this filing the attorneys for the financial institution obtains an Index Number which is the tracking number that the case goes through the Courts with.
Service of the Summons and Complaint
After the filing of the Summons and Complaint with the County Clerk’s Office, the attorneys for the financial institution hire a process server who then serves the Summons and Complaint on the homeowner.
Mandatory Settlement Conference
The first step in the legal process is a mandatory settlement conference which allows the homeowner and the attorneys for the lender to discuss solutions to the homeowner’s default in paying their mortgage. This usually involves a discussion of a mortgage modification.
Motion Practice
If the homeowner does not respond in writing to the lawsuit by submitting a written answer or attend the mandatory settlement conference, the lender may move by motion for a default. A default judgment is an indication that the homeowners have taken no legal action to defend themselves in the lawsuit.
Judgment of Foreclosure and Sale
If the bank’s attorneys are successful in either obtaining a default judgment on winning a Summary Judgment, the lender’s attorneys will then move for a Judgment of Foreclosure and Sale. This Judgment appoints a Referee to sell the homeowner’s home at a foreclosure sale.
Foreclosure Sale
A foreclosure sale is an auction sale. The Referee appointed by the Court schedules it and prospective purchasers bid on purchasing the home. The home is purchased for cash at the sale.
Referee’s Deed
After the foreclosure auction sale takes place, the Referee prepares a deed giving the winning bidder legal title to the home.
The law firm of Schlissel DeCorpo LLP has been helping families deal with mortgage and foreclosure problems for more than 30 years. We can be reached at 718-350-2802, 516-561-6645 or 631-319-8262 or by e-mail at info@sdnylaw.com.
90 DAY FORECLOSURE NOTICE RPAPL 1304
In every potential residential foreclosure case, the lender or the lender’s attorney must provide the homeowners with a notice 90 days before the foreclosure starts pursuant to Real Property Actions and Procedure Law Section 1304. The requirements of this notice are very specific.
The homeowners each need to receive an individual letter giving them notice of the pending foreclosure. If a husband and wife or 2 owners receive notice in one envelope that does not meet the statutory requirements.
In a recent case the bank sent homeowners two (2) 90 day notices in one a single envelope jointly addressed to both of them. The homeowners challenged the notice. The court found that the methodology of sending two (2) notices in a single envelope was improper. The foreclosure was dismissed.
The Summons & Complaint
After the 90-day notice is served on the homeowners the bank’s attorneys will start working on the foreclosure documents. The first they will do is order a title report. After the 90-day period has expired they will draft a Les Pendens, which has the impact of destroying the title to the house. The Les Pendens is filed with the County Clerk’s Office.
A Summons & Complaint is drafted and filed with the County Clerk’s Office and an Index Number is obtained. The Index Number is a tracking device that denotes the case is in the legal system. The Summons & Complaint are given to a process server who thereafter serves the homeowners.
The law firm of Schlissel DeCorpo LLP has been helping families deal with mortgage and foreclosure problems for more than 30 years. We can be reached at 718-350-2802, 516-561-6645 or 631-319-8262 or by e-mail at info@sdnylaw.com.
Foreclosure Case The Summons And Complaint
The bank retains a law firm that drafts a Summons and Complaint. The Summons and Complaint is filed with the County Clerk’s Office of the County in which the home is located. The filing of these papers gives the Summons and Complaint an Index Number. This Index Number is a tracking device for the case going through the Courts. Simultaneously with filing this Summons and Complaint, the attorneys for the financial institution file a Lis Pendens. This advises other people that there is a Court case against the property. This has a negative impact on the title to the home.
The Answer
If you wish to defend yourself in a foreclosure lawsuit after being served with a Summons and Complaint, you submit a written Answer. This Answer can include defenses, affirmative defenses and counter law suits. If you do not file an Answer to the Summons and Complaint, it is considered that you defaulted and that you are not challenging the foreclosure. This can result in your your home much faster.
Settlement Conference
There is a mandatory Foreclosure Settlement Conference that is required in all foreclosure lawsuits. At a settlement conference you can discuss mortgage modifications and other issues. If you do not attend the settlement conference, the Court can allow the case to move forward without your participation.
Discovery
Discovery is a process where each of the parties to a lawsuit can obtain information from the other party. The information used can be considered evidence which can be used by each of the parties during motion practice or at a trial, either for prosecution or by the defense.
Foreclosure Judgment
A financial institution can obtain a judgment on default if the homeowner does not submit a written Answer to the Summons and Complaint.
The law firm of Schlissel DeCorpo LLP has been helping families deal with mortgage and foreclosure problems for more than 30 years. We can be reached at 718-350-2802, 516-561-6645 or 631-319-8262 or by e-mail at info@sdnylaw.com.
The Right to Stay in Your Home
If a bank brings a foreclosure lawsuit against your home, you have a right to stay in the home during the pendency of the lawsuit. Foreclosure lawsuits sometimes, if handled by an experienced foreclosure attorney, can take years to get through the courts. However, if you fail to respond to the foreclosure Summons and Complaint in a timely manner, or if you abandon your home, the foreclosure process can be expedited and you can lose your home more quickly and with minimal notice.
You have the right to stay in your home until there is a final court order in the landlord/tenant court to force you to vacate the home. You should not leave early.
Foreclosure Scams
The are many foreclosure scams. You may be contacted by all types of people. The foreclosure notices are in the public domain. The scammers can find them in newspapers and on the internet. Before you sign any documents or take action regarding your home you should consult with a foreclosure attorney. This way you will avoid being cheated or defrauded out of your home.
Before the Foreclosure Lawsuit Starts
Homeowners in the State of New York have a right to a ninety (90) day notice before a foreclosure lawsuit is initiated by the financial institution that holds the mortgage on their home. New York Real Property and Actions Law (Real Property Actions and Proceedings Law Section 1304) requires a financial institution to provide a homeowner with specific and helpful notice regarding their rights and obligations during the foreclosure process. This notice specifically must advise the homeowner that they have a right to remain in their home until such time as a foreclosure sale is concluded. It also states they have an obligation to maintain their property and pay applicable taxes until such time as a foreclosure sale is completed.
The law firm of Schlissel DeCorpo LLP has been helping families deal with mortgage and foreclosure problems for more than 30 years. We can be reached at 718-350-2802, 516-561-6645 or 631-319-8262 or by e-mail at info@sdnylaw.com.
Reverse Mortgage – Frequently Asked Questions – Part 2
Is a reverse mortgage a financial transaction of last resort?
A reverse mortgage can be a viable and strategic financial tool. It is a man in which seniors can supplement their existing financial portfolio, and retirement benefits. A reverse mortgage should be considered and based on the homeowner’s financial circumstances.
Do homeowners have to make monthly payments on a reverse mortgage?
No. There are no monthly mortgage payments. The homeowner has to pay for the maintenance on their home, the insurance and property taxes on their home. The reverse mortgage allows the homeowners to use equity from their home while continuing to live in their home.
Can the homeowners outlive the reverse mortgage?
No. A reverse mortgage lasts for the rest of the lives of the homeowners, as long as they pay the insurance, property taxes and they maintain the home ingood repair.
What happens to the funds involved in the reverse mortgage if they are not all withdrawn during the life of the homeowners?
If the homeowners die without receiving all of the funds from the reverse mortgage, the funds will become part of the homeowners’ estate. When a homeowner dies, the homeowners’ heirs have up to 6 months to either repayThe loan or sell the house and repay the loan.
What can the funds in a reverse mortgage be used to pay?
The funds from a reverse mortgage can be used to pay virtually any debts or expenses the homeowners have. They can be used to pay an existingmortgage, medical bills, home repairs and renovations, in-home nursing care and virtually any other expenses the homeowners have.
Do the homeowners risk losing their home when they take out a reverse mortgage?
No. If the homeowners fulfill their obligations on the reverse mortgage which is solely related to maintaining the home, maintaining homeowner’s insurance and paying the property taxes, they have virtually no risk of losing their home.
What happens if the home appreciates during the term of the reverse mortgage?
If the home appreciates during the term of the reverse mortgage the equity in the home increases. This means if the home is sold to repay the reverse mortgage there would be funds left over. If there is a significant increase in the value of the home during the term of the reverse mortgage, the homeowners can refinance the home and payoff the reverse mortgage.
Who owns the home in a reverse mortgage?
The homeowner owns the home. A reverse mortgage just allows the homeowners to pull equity out of their home while maintaining the ownership of the home.
The law firm of Schlissel DeCorpo LLP has been helping families deal with mortgage and foreclosure problems for more than 30 years. We can be reached at 718-350-2802, 516-561-6645 or 631-319-8262 or by e-mail at info@sdnylaw.com.
Foreclosure Consumer Bill of Rights
The State of New York has a residential foreclosure actions consumer bill of rights. This gives homeowners information they can expect if their home goes into foreclosure. The foreclosure legal action is a lawsuit initiated by the bank’s attorneys to repossess the home, sell it and use those funds to pay off the mortgage.
The Foreclosure Process.
The foreclosure process starts by the homeowner receiving a ninety (90) day notice that the home is going into foreclosure. After ninety (90) days a Summons and Complaint will be served upon the homeowner. The homeowner at that point should immediately contact a foreclosure attorney. There are many actions the foreclosure attorney can do to help the homeowner. The foreclosure attorney can stop the foreclosure from going forward and sometimes tie it up in court for years. The foreclosure attorney can pursue on behalf of the homeowner a mortgage modification or forbearance agreement or other arrangements to help the homeowners and their family stay in the home.
The Response to a Foreclosure Lawsuit
When the homeowner retains an attorney, the attorney for the homeowner will file an answer to the foreclosure lawsuit. This stops the foreclosure lawsuit from going forward and allows homeowners to assert their rights. A failure by the homeowner to submit a written answer to the foreclosure lawsuit puts the homeowner at risk that the foreclosure lawsuit will move forward more quickly through the court and the homeowner will not obtain notice of the sale of their home until it is too late to stop it from being sold.
The law firm of Schlissel DeCorpo LLP has been helping families deal with mortgage and foreclosure problems for more than 30 years. We can be reached at 718-350-2802, 516-561-6645 or 631-319-8262 or by e-mail at info@sdnylaw.com.
