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Foreclosure Defense Attorneys

Litigation Strategies in Foreclosure Cases

Litigation Strategies in Foreclosure CasesThe first thing homeowners need to do in defending a foreclosure case is to put a written response in to the summons and complaint. This written response is called an answer. This avoids what is referred to as a default in the lawsuit. A default amounts to an admission of the allegations made by the bank in their lawsuit are correct. A homeowner can assert defenses, affirmative defenses and counter lawsuits in an answer to the summons and complaint. By contesting the lawsuit the foreclosure case will move very slowly through the courts. The more time the homeowners are in their home the more likely they will be able to come up with a final resolution, whether it be a mortgage modification, a forbearance agreement or another means of keeping their family in their home.

The Answer to a Foreclosure Lawsuit

When a homeowner is served in a foreclosure lawsuit depending upon the type of service he or she receives they have either 20 days or 30 days to respond. The response must be in writing. Affirmative defenses can be alleged in the answer to protect the client and to create the legal grounds for having the case dismissed. In addition, a counter lawsuit can be brought within the confines of the answer asking the court to dismiss the lawsuit completely because of some inappropriate action by the financial institution or the failure of the financial institution to comply with some federal, state or local ordinance.

Defending The Foreclosure Case

Financial institutions are very heavily regulated, they must comply with state, local and federal laws with regard to all aspects of the lending process, the mortgage application process and the handling of a foreclosure lawsuit. Affirmative defenses such as lack of standing, redlining, violation of Truth and Lending Laws, predatory lending, “duel tracking”, failure to provide necessary documentation, failure to provide adequate notice, failure to provide proper service, fraud and issues related to loan modifications can be raised. A counter lawsuit brought against the bank can also seek financial damages from the financial institution.

The facts and circumstances of each homeowner’s situation is unique. Should you find yourself facing a foreclosure situation, the first step in defending your home, protecting your rights and keeping your family in your home is to retain a qualified experienced foreclosure lawyer.

schlissel-headshotElliot S. Schlisel is the managing partner of Schlissel DeCorpo LLP. For more than 30 years he has been representing homeowners throughout the Metropolitan New York area. He helps homeowners obtain mortgage modifications. In addition he fights foreclosure lawsuits. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

How to Avoid Foreclosure of your Home

The Bank’s Motion in Foreclosure LawsuitsFinancial circumstances in families’ lives can change. These changes sometimes are of a negative manner. If the family doesn’t make their mortgage payments they face the risk of losing their home and being dispossessed. When a homeowner receives a notice they are in default on their mortgage, or a summons and complaint in a foreclosure lawsuit, action should be taken by the homeowners to deal with the situation. Acting like an ostrich and putting your head in the sand and hoping this goes away simply won’t work!

Hire an Attorney

If you are facing future foreclosure or a foreclosure lawsuit has been started against you, the best way to deal with this is to hire an experienced foreclosure lawyer. The earlier in the proceeding you hire a lawyer the better your chances of success will be.

Loan Modifications

Loan Modifications are one of the ways of dealing with a foreclosure lawsuit and the threat of losing one’s home. Mortgage modifications help you modify your current mortgage arrangement. This can eliminate the threat of losing your home. This may enable you to become current on your mortgage payments.

schlissel-headshotThe law firm of Schlissel DeCorpo LLP has been helping homeowners keep their homes for more than 30 years. Our office can offer you advice and guidance with the appropriate action to take regarding a foreclosure lawsuit and/or obtaining a mortgage modification. We can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

The Bank’s Motion in Foreclosure Lawsuits

The Bank’s Motion in Foreclosure LawsuitsA foreclosure lawsuit is initiated by the financial institution’s attorneys serving the homeowner with the summons and complaint. Both the homeowner and financial institution can engage in the discovery process where they ask for the documents, records and other information related to the mortgage and foreclosure lawsuit to be provided to them.

Motion Practice

Attorneys for financial institutions are under pressure from the banks to move their cases through the courts as quickly as possible. For this reason if a homeowner submits an answer to the summons and complaint the financial institution will usually make a motion for summary judgment.

The Summary Judgment Motion

A motion for summary judgment alleges there are no questions of fact, all the issues in the case can be presented on paper and there are no real triable issues of fact. Based on this motion, bank’s attorney will allege the court should grant the financial institution a judgment of foreclosure dismissing the defendant’s answer and affirmative defenses. The attorneys will be putting a lot of time and effort in presenting a well documented and well set up motion for summary judgment which shows that the defenses and affirmative defenses by the homeowner are without merit. The plaintiff’s motion papers are at times 7 or 8 inches thick with regard the summary judgment motion.

The making of a summary judgment motion by the plaintiff’s attorneys causes the defendant to fight this motion by submitting opposing papers and if appropriate submitting a cross-motion seeking the case be dismissed.

Motion for Foreclosure and Sale

If the financial institution’s attorneys are successful with regard to having the court grant their motion for summary judgment, they will thereafter bring a second motion for foreclosure and sale. In the motion for foreclosure and sale the court will usually recognize the accounting of the referee as being valid and and correct. This is the last court application necessary before the referee can schedule the sale of the house.

schlissel-headshotElliot S. Schlisel is the managing partner of Schlissel DeCorpo LLP. He has been representing homeowners in foreclosure lawsuits, helping them obtain mortgage modifications and dealing with numerous other problems related to improper conduct of financial institutions for more than 30 years. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

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.

Mortgages in 2018

MortgageDuring the past 12 months the prime interest rate has increased from 3.75% to 5.15%.  This has created a significant decrease in the buying power of new homeowners.  As mortgage rates go up, the cost of borrowing increases.  This tends to have a negative impact on the real estate market regarding the sale of residential real estate.

Cap on Real Estate Tax Deductions

The new Federal Tax Law now in effect in 2019 provides a $10,000.00 cap on the deduction homeowners can take on real estate taxes.  This is having a significant negative impact on the real estate market in New York.  This is especially true for homes at the higher end of the real estate market that have real estate taxes greater than $10,000.00.  Nassau County on Long Island has seen a significant slowdown in the sale of homes with significant real estate taxes.

Adjustable Rate Mortgages (ARMs)

The rising interest rates are causing more homeowners to take adjustable rate mortgages instead of fixed rate mortgages.  Adjustable rate mortgages often start very low but go up over time.  This may increase the number of foreclosures among those homeowners in the future.

Elliot S. Schlissel, Esq. is a foreclosure lawyer.  He helps his clients fight foreclosure lawsuits and obtain mortgage modifications. He has been assisting homeowners throughout the Metropolitan New York area regarding foreclosures for more than 35 years.  He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

The Mandatory Foreclosure Settlement Conference

Foreclosure settlement conferenceIn the State of New York there is a requirement that all foreclosures involving residential property are subject to mandatory foreclosure settlement conferences.  After the financial institution has served a 90 day notice on the homeowner, and a summons and complaint on the homeowner within 60 days thereafter the financial institution must file a Request for Judicial Intervention.  The Request of Judicial Intervention, commonly referred to as an “RJI”, causes the court to schedule a mandatory foreclosure settlement conference.  These conferences take place in every county in the State of New York.   The mandatory foreclosure settlement conference will take place in the county in which the home is located.

The Purpose of the Settlement Conference

The foreclosure settlement conferences allow homeowners and their attorneys to meet with the financial institution’s lawyers for the purpose of working out possibly resolutions of the case other than the home being sold.  The resolution most homeowners seek is to obtain a mortgage modification that is affordable.  When the homeowner or their attorney appears at the mandatory foreclosure settlement conference there are discussions with regard to the submission of documents necessary for the financial institution to underwrite a mortgage modification.  For the homeowner to be successful with regard to the mandatory foreclosure settlement conferences they must diligently comply with the document requests made by the financial institution’s lawyer.

These conferences can put pressure on the financial institution by the court to work out a resolution of the foreclosure case with the homeowner where the homeowner’s home is not sold at auction on the courthouse steps.

Supervision of the Settlement Coference

The mandatory foreclosure settlement conferences are supervised either by a court appointed referee or a judge.  At the time of the first court conference if the homeowner seeks to submit for a mortgage modification, the conference will usually be adjourned for 2 to 3 months to give the homeowner reasonable time to submit the appropriate documents and to give the financial institution time to underwrite the documents that are submitted for the purpose of determining whether the homeowner qualifies for a mortgage modification.  The attendance by the attorneys for the homeowner at these foreclosure conferences will continue to put pressure on the financial institution to provide the homeowner with a reasonable mortgage modification.

Missing the Conference

It is never a good idea for a homeowner or their attorney to miss foreclosure settlement conferences.  The foreclosure settlement conference stops the foreclosure lawsuit from going forward and gives the homeowner an opportunity to seek an alternative to losing their home in a foreclosure sale.  Although a homeowner can apply for a mortgage modification at any time during the litigation, the mandatory foreclosure settlement conferences are designed to allow the court to supervise the mortgage modification procedures.  It is always in the homeowner’s interest to have the courts maintaining pressure on the financial institution to provide the homeowner with a mortgage modification.

Mandatory foreclosure conferences slow down the foreclosure lawsuit.  There is a concept called “dual tracking”.  This means while the homeowner is applying for a mortgage modification the financial institution cannot at the same time proceed with the litigation process to take back the homeowner’s home.

Elliot S. Schlissel, Esq., his partner Nathan DeCorpo, Esq. and his associates have a history of excellent results in helping homeowners obtain mortgage modifications.  The firm can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

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

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