A Court Bars Enforcement of Mortgage Due to Violation of Statute of Limitations

A Court Bars Enforcement of Mortgage Due to Violation of Statute of LimitationsIn a case before Supreme Court Justice Debra Silber who sits in Kings County, a homeowner brought an action for a declaratory judgment. The declaratory judgment was pursuant to Real Property Actions and Proceedings Law Section 1501.4. The homeowner wanted the court to declare that the mortgage on the homeowner’s property was not enforceable. The homeowner’s claim was it was not enforceable because the six year statute of limitations had expired. The homeowner asked Judge Debra Silber to have the mortgage cancelled, discharged an struck from the records of the New York City Register

Summary Judgment

The homeowner asked the court pursuant to a summary judgment motion declaring that on the basis that there were no issues of fact disputed that a trial would not be required on the issue of the mortgage being unenforceable due to a six year statute of limitations acted as a time bar.

Acceleration of the Mortgage

Issues were raised in this case with regard to the acceleration of the mortgage and the deceleration of the mortgage. Judge Silber granted plaintiff’s application. She found that the plaintiff had shown on her papers that she was entitled to a summary judgment cancelling and discharging the mortgage on her property. The homeowner had shown that the mortgage had been accelerated on or about April 16, 2009. The homeowner commenced her action to discharge the mortgage and have it cancelled on February 10, 2018. Since more than six years had expired, the homeowner was entitled to a judgment dismissing and cancelling the mortgage of record on her property.

schlissel-headshotElliot S. Schlissel, Esq. is a foreclosure attorney. He has been representing homeowners in foreclosure cases throughout the Metropolitan New York area for more than 30 years. Elliot and his firm actively litigates the defense of foreclosure lawsuits against homeowners. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Foreclosure Defense Case: Renting the Foreclosed Property and Surplus Money Issues

Foreclosure Defense CaseA foreclosure lawsuit was brought in Westchester County before Justice William Giacomo. Acqua Capital was the plaintiff in this lawsuit. At the time of the foreclosure sale there was $187,000 in surplus monies over what was due and owing to Acqua Capital. This refers to money in excess of what the bank was owed at the time of the sale which was paid by a speculator to buy the house.

The Lease

Acqua capital and Campagna, the homeowner, entered into a lease. The former homeowner leased the home for $6,000.00 a month for 2 years. He requested the surplus monies ($187,000.00) be used to pay his rent.

The financial institution filed a notice of claim asking that $156,000.00 of the funds being held by the referee be assigned to Acqua Capital to make the lease payments. The referee is the person who sells the house in a foreclosure sale.

The Referee’s Position

The referee issued a report regarding the surplus monies. The referee was concerned that Campagna was a victim of overreaching by Acqua Capital. The referee stated the court should find the lease is unenforceable. The referee claimed the rent should not be $6,000.00 per month. The referee found this to be an unreasonable amount of rent. The referee claimed a fair and reasonable rental value would be $3,500.00 a month. This would require a total $84,000.00 for the 2 year period and not the $156,000.00 that was sought by Acqua Capital. Acqua Capital claimed the referee was exceeding his authority with regard to this matter.

The Judge’s Decision

Justice Giacomo found the referee could ascertain the amount due from surplus monies to Acqua Capital, Campagna and all of the lienholders. Justice Giacomo asked the referee to address the legitimacy of the assignment and the appropriateness of the lease between Campagna and Acqua Capital. Justice Giacomo found the referee’s report with regard to the amount of rental payments and the distribution of surplus monies was supported by the evidence. Acqua Capital’s motion to reject the referee’s report was denied.

Conclusion

In the event of a foreclosure sale the mortgage holder and other lienholders are paid. Any money left over in theory belongs to the homeowner. Homeowners must bring surplus money proceedings to obtain these funds. In this case the homeowner had $187,000.00 of surplus monies he should be entitled to spend it any way he desired. However, financial institutions should not be able to use the throwing of families out of their home as a basis for overcharging them with inappropriate rental payments.

schlissel-headshotElliot S. Schlissel, Esq. is a foreclosure lawyer representing homeowners 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.

Mortgage Modifications

Mortgage ModificationsAs 2008 came to an end the stock market took a plunge. The economy in the United States seemed to have slowed down. This has caused more homeowners to fall behind on making their mortgage payments. When a homeowner cannot make their payments under their mortgage affirmative action can be taken to deal with the situation prior to the home going into foreclosure. One of the better actions a homeowner can take is to apply for a mortgage modification. Since 2008 millions of homeowners in the United States have applied for mortgage modification. A mortgage loan modification can be the answer to homeowners’ financial issues in many situations.

The Modification

A loan modification basically seeks to change the terms of the original loan in a manner that makes it easier, less expensive and more convenient for the homeowners to make their mortgage payments. The granting of a loan modification by the lending institution may stop the home from going into foreclosure and being lost. If the bank approves the mortgage modification, there is usually a period of 3 months to 6 months when the homeowners receives a temporary modification. If they make their payments on time they are usually offered a permanent loan modification.

schlissel-headshotElliot S. Schlissel, Esq. is a foreclosure attorney. He helps homeowners obtain mortgage modifications and fights foreclosure lawsuits. He has been helping homeowners keep their homes throughout the Metropolitan New York area for more than 3 decades. He can be reached at 800-344-6431 or e-mailed at: Elliot@sdnylaw.com for a consultation. If you have a problem with your mortgage you should contact Elliot for a free consultation.

Issues Concerning Notice of Foreclosure Mailing

Issues Concerning Notice of Foreclosure MailingIn a case before Justice Robert Quinlan, who sits in Suffolk County Supreme Court, a foreclosure lawsuit was brought by Deutsche Bank National Trust Company, as trustee. The action was to foreclose a mortgage on a residential property. Certain affirmative defenses in the homeowner’s answer to the bank’s complaint were dismissed by Judge Quinlan. However, Judge Quinlan did not grant the bank a full summary judgment decision striking defendant’s answer. He set the action down for a limited trial on plaintiff’s proof of defendant’s default in payment; its standing to bring the action; its proof of mailing of the notice of default required by the mortgage; and the sufficiency of the notices required under Real Property Actions and Proceedings Law Section 1304 (which involves the notice of foreclosure proceeding being brought) as well as the proof of their mailings.

The Homeowner’s Defense

The homeowners’ motion to dismiss claimed the bank could not establish the mailing of the notices under Real Property Actions and Proceedings Law Section 1304. Judge Quinlan found the homeowner’s arguments that they did not receive the notices was not sufficient to have the case dismissed. He found all the bank’s lawyers had to do was to establish the notices were mailed.

Conclusion

This is a very bad decision. The purpose of mailing is to give the homeowner the pre-foreclosure notice. If the homeowner never received the notice, there was no communication and the statutory intent behind giving the homeowner notice has not been met. In this case there are still issues to be dealt with at trial. However, I disagree with the Judge’s decision with regard to adequacy of an affidavit of mailing being sufficient with regard to the pre-foreclosure notice by the bank’s attorneys.

schlissel-headshotElliot S. Schlissel, Esq. is a foreclosure lawyer. He has been defending homeowners throughout the Metropolitan New York area for more than 30 years. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

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.

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