Foreclosure Defense Attorneys

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Happy Thanksgiving 2021

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FRESH SUMMARY OF NEW YORK’S FORECLOSURE LAWS

FORECLOSURE LAWSRestricted lenders must comply with temporary NYS foreclosure laws protecting homeowners who’ve declared a COVID-19 hardship. Here’s a summary of changes effective May 1, 2021 until August 31, 2021, when statewide foreclosures will resume.

Here to Stay?

The Senate and House Assembly recently passed a legislative suspension of the entire New York State foreclosure eviction process. Enacted last December, the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 expired earlier this month. Two days later, a gubernatorial extension extended the Act retroactively to apply to all residential and commercial mortgage loans affected by loss of income and other disruptive factors related to the health crisis.

Moratoriums are staying for a few more months. Title 13 of New York’s merged laws requires the debtor to file a Declaration of Hardship form and file it with the foreclosing party, agent, or county court. A properly filed hardship declaration qualifies homes loan and forbids:

  • Tax lien sales and tax foreclosures during the suspension period
  • New foreclosure filings, settlement conferences, acceleration and other steps typically involved in a foreclosure
  • Forced sales at auction, Default Judgments, Deficiency Judgments, and removal of owners/mortgagors, occupants, and tenants until August 31, 2021
  • Reporting accounts with missed or severely delinquent payments to credit bureaus, using forbearance or hardship declarations as a reason to deny future credit applications or negatively affect credit ratings

And allow access to other options to mitigate loss or avoid foreclosure, such as these:

  • twelve-month forbearance for non-government backed mortgages
  • Federal aid package of $20,000,000, secured by state officials and allocated for homeowner grants and the Homeowner Protection Program (HOPP), an organization created to help connect with programs and agencies that assist with mortgage payments and resources to avoid losing your home.

If you have a pending foreclosure case in progress, you will receive a copy of the Hardship Declaration in the mail. This will come from the court. Newly filed foreclosures require the lender or servicer to send mortgagees aAll legally required pre-foreclosure notices must accompany the form. You may access a blank copy of the Hardship Declaration forms on the Office of Court Administration’s website.

Hardship declaration is an option available for borrowers owning no more than to ten residences, including condos and co-ops. Industry professionals strongly

Opponents of the Act have complained about losses incurred by creditors. They believe the law favors borrowers and denies lenders their constitutional right to have non-payment disputes heard in a court of law. They dismiss counter defenses from supporters, who point to the provisional right of lenders and services to charge and collect interest, late fees, and other penalties set forth in the mortgage agreement.

Times of Lien

New York is a “lien theory” state. What that means is most foreclosures are usually judicial. They begin when a lender has filed a civil lawsuit against the borrower in loan default. It will cause a court case over which a judge presides until a settlement, dismissal or judgment order is affirmed, if appealed.

Sometimes, lenders can use a “non-judicial” type of foreclosure procedure in New York. However, this is rare. It requires an existing “power of sale” clause in the required instruments, which is a Deed the loan recipient executed in the original note. It allows a lender to sell the property on behalf of the borrower, should a default situation arise.

Deal or No Deal?

State law gives the borrower a chance to work things out with the lender. First, the filing party proves they served the complaint to the defendant by one of several means specified by law. They file the verification of service with the clerk’s office. Then, 60 days later, the court schedules a Settlement Conference on their docket. The court will notify you regarding when and where the conference is going to take place, along with what you should bring as documentation. (N.Y. Civil Practice Rule 3408). At the Settlement Conference, the borrower and lender can negotiate a solution to avoid foreclosure.

Money Changes Everything

Per New York property law, they may reinstate a mortgage loan before the Judge will dismiss the lawsuit. The amount the borrower must pay to be reinstated includes fees and costs, besides the past due amount. Also, if you become able to pay that total after judgment is rendered, but before the foreclosure sale takes place, your court case is stayed, and the mortgage is reinstated.

No Givebacks?

In some states, a defaulting borrower has a “redemption” right. This allows a specific amount of time to buy back the residence after a foreclosure sale. The timeframe to redeem a home varies among state, and there are two ways it can be done, depending on the state:

  1. Reimburse the buyer of the home in the amount paid at the sale, plus allowed costs.
  2. Repay the lender the amount of the total mortgage debt owed, plus interest, late fees, and expenses.

Unfortunately, redemption periods aren’t permitted in New York. On the other hand, a foreclosure attorney can give clients peace of mind if they are seeking advice on how to buy a foreclosure in NY.

Are We Even?

Sometimes, residential property is sold for less than the total mortgage debt owed. New York’s Consolidated Laws grant lenders a right to submit a Motion for Deficiency Judgment against the borrower for the remaining difference. The motion must be filed no later than 90 days following the consummation of the sale. Once the deed to the property is delivered to the new owner, they consider the sale consummated by law. The court must follow state law, which determines deficiency as the higher of two amounts:

  • Fair Market Value OR
  • Sales price

The potential for being on the hook for the balance is a good reason to consider hiring a property attorney who is familiar with foreclosure laws in NY and can offer expert advice and legal strategies that minimize or eliminate your liability.

No “R” in Fee

Sadly, there are those who have targeted vulnerable folks in this predicament. Their goal is to gain the equity remaining in a home facing foreclosure and even offer loan modification services for the title to the property at risk. Some fulfill their promises, but that’s irrelevant because it is illegal to offer foreclosure relief for a fee. Homeowners should never have to pay a fee to change a loan or explore options to avoid losing their home. HOPP and the federal government will assist you with no cost. Think about it like this: if you don’t have the money to pay your monthly mortgage payment that’s past due, how will you afford a fee charged for an otherwise free service? It’s money that would be better spent toward the debt or competent legal help.

schlissel-headshotElliot S. Schlissel, Esq. is a foreclosure lawyer representing homeowners in foreclosure lawsuits throughout the Metropolitan New York area. He can be reached for a free consultation at 800-344-6431 or e-mail at Elliot@sdnylaw.com.

Season’s Greetings and Happy New Year

Season's Greetings and Happy New Year

Video : Discussing Mortgage Modifications

Elliot discusses a case on Discussing Mortgage Modifications.

Bank fails to move on a timely basis for a default judgment; foreclosure case dismissed

Bank fails to move on a timely basis for a default judgment; foreclosure case dismissedIn a case before Justice Arlene Bluth in Supreme Court in New York County a bank brought an application for a default judgment against defendants. The bank also requested the appointment of a referee to compute the sums due and owing to the bank in the foreclosure lawsuit. The defendants made a cross application to dismiss the foreclosure lawsuit. The defendants claimed the bank had abandoned the foreclosure.

History of the Case

The homeowner had executed a note and mortgage. The note and mortgage was assigned to the bank who is the plaintiff in the lawsuit. The bank’s foreclosure lawsuit claimed that the homeowner had failed to make payments from November 1, 2008 to the present time. The foreclosure lawsuit was initiated on March 9, 2019. The homeowner failed to answer or appear in the foreclosure case. The bank did not take action until they were ordered to do so with regard to the motion appointing the referee to sell the house. At that point the bank sought a default judgment against the homeowners. The bank presented arguments there was sufficient basis for the delay in moving for a default judgment. They claimed the delay was caused by the substitution of the attorneys for the bank. However, Justice Bluth took note the new lawyers were substituted in 2015. She found the bank had failed to move forward for a default judgment until it was ordered by her to do so. She found the bank failed to establish a reasonable excuse for their delay in moving forward with the default judgment.

The Judge’s Decision

Justice Bluth found the change in the attorneys for the bank took place 2 years after the bank should have moved for a default judgment. They were required to move for a default judgment within a year. She also found the change of attorneys does not excuse a 9 year delay in moving for a default judgment. Justice Bluth found that not one of the three different groups of attorneys representing the bank moved for a default judgment in a decade. Justice Bluth granted the homeowners cross motion to dismiss the case as being abandoned.

schlissel-headshotElliot S. Schlissel, Esq. is a foreclosure lawyer representing homeowners in foreclosure lawsuits throughout the Metropolitan New York area. He can be reached for a free consultation at 800-344-6431 or e-mail at Elliot@sdnylaw.com.

Lack of Standing Defense Waived

Lack of Standing Defense WaivedThe issue of standing in a foreclosure lawsuit is a basic issue. The affirmative defense of lack of standing basically says that the financial institution bringing the lawsuit does not have authority to bring this lawsuit.

The Nielsons

In May 2009 the Nielsons’ defaulted on making payments on a $660,000.00 loan to the New York bank’s predecessor. This loan was secured by property located in Kings County.

The Mortgage Assignment

In September 2009 pursuant to a mortgage assignment, U.S. Bank brought a foreclosure lawsuit in Supreme Court in Kings County. A decision was made by the trial judge granting summary judgment and foreclosure and sale to U.S. Bank.

The Appeal

The Nielsons brought an appeal challenging the trial court’s decision granting U.S. Bank summary judgment. The Appeals Court (the Second Department in New York) held that a defendant in a foreclosure lawsuit must submit an affirmative defense as part of their pleadings alleging lack of standing. The failure of the Nielson’s to allege this affirmative defense amounted to a waiver of that affirmative defense. Therefore, the trial court’s granting the motion for summary judgment for U.S. Bank was upheld.

Conclusion

Every answer in a foreclosure lawsuit should contain the affirmative defense of lack of standing. Until discovery proceedings are effectuated by the attorney for the homeowner, the homeowner will not be sufficiently knowledgeable as to whether the financial institution bringing the foreclosure lawsuit has actual standing to bring the foreclosure lawsuit.

schlissel-headshotElliot S. Schlissel, Esq. is a foreclosure defense lawyer representing homeowners throughout the Metropolitan New York area for more than 3 decades. He can be reached for a free consultation at 800-344-6431 or you can contact me by e-mail at Elliot@sdnylaw.com.

Homeowner Successful In Showing Bank Had No Standing to Bring A Foreclosure Lawsuit

Homeowner Successful In Showing Bank Had No Standing to Bring A Foreclosure LawsuitBeneficial Homeowners Services Corp. had provided a loan to Carpenter when he bought his home. They claimed with regard to the loan Carpenter had signed a promissory note and said note was secured by a mortgage on his house.

Carpenter failed to make his mortgage payments. This caused Beneficial to start a foreclosure lawsuit. In the foreclosure lawsuit Carpenter alleged various affirmative defenses. One of those affirmative defenses was that Beneficial lacked standing to bring the lawsuit.

The Summary Judgment Application

Beneficial brought a motion for summary judgment. They alleged in this motion there was no question of fact that Carpenter took out a loan, signed the note and they held a mortgage on his property. Therefore they should be entitled to a judgment of foreclosure. This was the second time they had brought the same motion.

Bank Not The Correct Party

Carpenter alleged as a defense the bank was not the appropriate party to bring the lawsuit. The formal defense in legal terms was the bank lacked standing to bring the foreclosure action.

The Standing Party

Justice Robert Muller who sits in Clendon County, in upstate New York, ruled that Beneficial failed to establish standing as a matter of law. They had submitted a power of attorney whereby an assignee Caliber was authorized to act as attorney in fact for Beneficial. However, Justice Muller found the alleged power of attorney was insufficient to establish Beneficial had standing to prosecute the alleged default by Carpenter. Judge Muller pointed out the affidavit submitted by Beneficial did not clarify how Wells Fargo Bank came to act as a custodian for the note. Judge Muller also pointed out Beneficial failed to provide documentation of the alleged relationship between Caliber and Beneficial. This was the basis for Judge Muller to deny the plaintiff’s application for summary judgment.

schlissel-headshotElliot S. Schlissel, Esq. is a foreclosure lawyer who represents clients throughout the Metropolitan New York area in foreclosure matters and bankruptcies. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com. His office offers free consultations to individuals who have foreclosure related issues.

Happy New Year 2020

Happy New Year 2020

To a joyful present and a well-remembered past. Best wishes for happy holidays and a magnificent new year.

Homeowners Motions in Foreclosure Lawsuits

Homeowners Motions in Foreclosure LawsuitsA homeowner can make a motion to dismiss the bank’s lawsuit in a foreclosure case based on a jurisdictional basis or the fact that there are meritorious defenses to the complaint submitted by the bank. Examples of a basis for dismissing the lawsuit brought by the financial institution are: lack of standing, failure to obtain proper service on the defendants, violation of the statute of limitations, fraud in the inducement and various other defenses and affirmative defenses available to homeowners.

Cost of Foreclosure Litigation

Banks and financial institutions are worth billions of dollars. Homeowners, who work for a living, have limited financial assets to engage in sophisticated litigation with financial institutions. The financial institutions bringing the foreclosure lawsuit are spending money belonging to their shareholders. On the other side of the situation, the homeowner is putting his hands in his own pocket to fight the foreclosure lawsuit. It is therefore important for the attorneys for the homeowners to maximize the impact of their legal action and litigate the matter in the most cost efficient means. It should be pointed out, in my experience, bank’s are often prepared to spend more than $25,000.00 bringing motions to obtain a foreclosure judgment against homeowners to cause their home to be sold. This puts a heavy financial burden on the homeowner to defend against these motions.

Conclusion

There is a process during the litigation of a foreclosure lawsuit where each party can make motions asking the Judge prior to a trial to grant them relief. The bank asks for relief in a motion for summary judgment and/or judgment of foreclosure and sale and the homeowner usually brings a motion to dismiss the litigation. If you are facing foreclosure, the best way to deal with all of the issues and problems is to hire an experienced dedicated foreclosure attorney.

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.

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