PRE-FORECLOSURE NOTICE
New York has a specific statute that requires a lender to provide 90 days notice to a homeowner before they initiate a foreclosure lawsuit. The failure of the lender to provide the 90 days notice can in the answer to the foreclosure lawsuit provide a defense to the foreclosure lawsuit. In the event you have a defense such as a failure to serve a pre-foreclosure notice or the statute of limitations, which talks about the time period the lender has to initiate the lawsuit, these defenses must be specifically plead in the answer to the Summons and Complaint. To protect yourself, it is highly recommended that you contact a law firm that handles foreclosure defense to draft the answer for you and take the appropriate legal action in the Supreme Court to protect your rights and possibly get the lawsuit dismissed.
Time to Answer
Under New York State law if served with a Summons and Complaint, you have 20 days to submit a written response to the Summons and Complaint, which is called an Answer, if the Summons and Complaint is personally handed to you by a process server. If you receive the Summons and Complaint that is dropped off at your home or sent to you by another means, you have 30 days from the time of service to respond to the Summons and Complaint. If you do not provide a written response to the Court and the bank’s attorney within the appropriate time limitation, you have defaulted in the foreclosure lawsuit. A default is an indication that you are not contesting the lawsuit which is designed to sell your home and cause you to be evicted. This is always a mistake!
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.
WHY HIRE A FORECLOSURE DEFENSE LAWYER
Attorneys who deal with foreclosures on a regular basis can develop an expertise in dealing with the financial institutions, their servicing companies and the bank lawyers. Attorneys who have extensive experience in foreclosure defense can provide advise and legal assistance in obtaining a mortgage modification or other types of relief from a foreclosure.
Before hiring a law firm to handle a foreclosure defense for your family, it is important that you look at their website. Investigate whether the attorneys have published articles on various foreclosure defenses and/or previous cases that they have been successful in defending foreclosures on.
A foreclosure defense attorney with extensive experience in handling foreclosures will understand how to defeat the bank where defenses are available. Foreclosure litigation, negotiations with financial institutions, the servicing company and the attorneys for the financial institutions can help homeowners save their homes.
Your Home
The ownership of a single-family home is the consummation of an American dream. A family’s home is usually their single greatest asset. It should be protected from financial institutions that seek to take the home back from the homeowners. Moving quickly to deal with mortgage problems is the best way to avoid a family losing their home. Many foreclosure attorneys offer free initial consultations.
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.
TYING THE FORECLOSURE LAWSUIT UP IN COURT
A sophisticated foreclosure lawyer can often tie a foreclosure lawsuit up in court any where from 2 to 3 years. This can give the homeowners the ability to obtain a new job or jobs if they are unemployed, organize their finances, work out mortgage modifications and get their home foreclosure issue straightened out.
Mortgage Modifications
Mortgage loan modifications take time to work out. If you are already behind on your mortgage, you will fall further behind during the process of obtaining a mortgage modification. A foreclosure attorney can tie up your case in Court to give you the time to obtain a mortgage modification before you lose your home.
Selling Your Home In Foreclosure
Many people do not understand that you can sell your home even if it is in foreclosure. The sale of a home in foreclosure may be a bit more complicated than a sale when a home is not in foreclosure, but the home is still saleable. Selling the home will allow the homeowner to pay the bank off and reap the benefits of the increase in value of the home. In addition the homeowner gets to keep the balance of the equity paid at the time of closing after paying off the mortgage. These sums can be utilized to purchase another home in the future.
Selling the home is only one option a homeowner has when their home is in foreclosure. There are many other options available. A consultation with a New York foreclosure defense attorney will be the best way to determine how the homeowner should deal with their situation involving the foreclosure on 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.
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.
