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Elliot S. Schlissel is a foreclosure defense lawyer helping homeowners stay in their homes throughout the Metropolitan New York area. He and his associates can be reached for consultation at 516-561-6645 or 718-350-2802 or send an email to schlissel.law@att.net.
A foreclosure action was brought by JP Morgan Chase in the Supreme Court of New York County. Justice Francois Rivera was the judge assigned to the case. Chase claimed in their pleadings that Charles had executed a mortgage and note on real property in favor of Fleet Real Estate Funding. They claimed Fleet Real Estate Funding had assigned the mortgage to JP Morgan Chase. They claimed Charles defaulted on making his payments on the note and mortgage, they had accelerated the note and mortgage and served the acceleration notice on Charles.
Charles’ Death
After Chase had commenced this lawsuit they ascertained that Charles had died. It should be noted Charles did not respond to any of the documents served upon him by Chase or the Summons and Complaint. That may have been related to the fact that he wasn’t alive!
Although Chase was aware that Charles had died, the moving papers submitted by them did not contain an original death certificate. The court was never made aware as to when Charles died. Judge Rivera advised Chase that when an individual to a lawsuit dies, the court is divested of jurisdiction to continue legal proceedings until an appropriate substitution is made. In addition, any court order rendered after the date of death of a party and before a legal representative is appointed to represent the deceased party would also be void.
Judge Rivera reached the conclusion since Chase had not submitted a death certificate, and they weren’t aware of the date of death, they could not determine if Charles was ever legally a party to this lawsuit. The court further stated if Charles died after the lawsuit was initiated, the action would be stayed under New York State law. In the end, Judge Rivera found that Chase could not have any relief at all until they resolved the issues concerning Charles’ death.
Conclusion
Dying is a defense to a foreclosure lawsuit! However, there are less painful defenses which can be established by hiring a foreclosure lawyer upon the initiation of legal proceedings against you.
Please click on the link below to watch today’s video blog:
Elliot S. Schlissel is a foreclosure defense lawyer helping homeowners stay in their homes throughout the Metropolitan New York area. He and his associates can be reached for consultation at 516-561-6645 or 718-350-2802 or send an email to schlissel.law@att.net.
Servicing $10 Trillion Dollars of Mortgage Loans
Non-bank institutions which service mortgages have grown at an incredible rate in the past few years. The largest fifty non-bank mortgage servicing companies handled almost $10 trillion dollars in mortgage loans in 2014. Non-bank servicing organizations accounted for almost 30% of these loans last year. In 2010, they accounted for only 7% of these loans. Ocwen serviced nearly $400 billion dollars in loans in 2014, and NationStar Mortgage serviced more than $377 billion dollars in loans. This is 500% more than they serviced in 2010.
Large Employee Turnover
These non-bank institutions have large turnovers of their employees. It makes it extremely difficult for homeowners to reach the same individual at these institutions to deal with their problem. This can create a gut wrenching situation for the homeowners who are trying to straighten out administrative problems caused by the servicing agencies.
Non-bank servicing companies are much harder to work with than traditional financial institutions. They are not as well equipped or well versed in issues concerning loss mitigation.
In 2014, the Consumer Finance Protection Bureau imposed new mortgage servicing requirements on both banks and non-bank servicing mortgage companies. Under these new rules, all mortgage servicing companies are supposed to create a “single point of contact”. This single point of contact is designed to help homeowners with troubled loans.
Approximately a year ago, the New York Department of Financial Services blocked a transfer of almost $3 billion dollars in mortgage servicing contracts from Wells Fargo Bank to Ocwen. In December 2014, Ocwen reached a $150 million dollar settlement with the New York Department of Financial Services concerning abuses and conflicts of interest. Hopefully in 2015, this New York agency will be able to regulate these non-bank servicing institutions and/or motivate them to provide higher quality levels of service to the tens of thousands of beleaguered mortgage holders who are forced to deal with them.
Elliot S. Schlissel is a foreclosure attorney. He helps homeowners with homes which have gone into or are going into foreclosure. He is the author of more than 400 articles on his blog concerning foreclosure defense.
There has been an explosive rise in the number of mortgages serviced in the United States by non-bank mortgage servicing companies. Mortgage servicing companies don’t offer checking accounts or savings accounts. They are simply hired by financial institutions to process payments and perform various administrative banking tasks that are commonly referred to as “servicing”. These non-bank institutions in the year 2014 are servicing a larger and larger portion of all mortgage loans in the United States. Non-bank mortgage servicing companies operate under a different regulatory scheme than banks. They are subject to considerably less scrutiny with regard to their practices.
Alarm About Non-Bank Servicing Companies
A number of homeowner complaints concerning large non-bank servicing companies are growing at a significant rate. The largest non-bank mortgage servicing companies are Ocwen Financial Corporation and NationStar Mortgage. These two mortgage servicing companies, pursuant to the Consumer Financial Protection Bureau, accounted for 4,658 complaints from consumers in the year 2014. This was a dramatic increase in the number of consumer complaints from previous years.
Benjamin Lawsky, Superintendent of New York’s Department of Financial Services, recently stated that behind every troubled mortgage loan is “a family, a person, and it’s usually someone struggling to make ends meet”. Long Island is a great example of that. We have lots of homes under water and people who need loan modifications.
Transferring of Mortgages
The servicing of mortgages is not a simple business model. Each and every time the mortgage gets transferred from one bank to another or one servicing agency to another, there is potential for mistakes and errors which can result in putting the homeowner into financial turmoil. There have been numerous cases of individuals whose mortgages have been transferred from one servicer to another that have had their lives turned upside down by the mistakes made by these agencies.
To watch today’s video blog, please click on the link below:
Elliot S. Schlissel is a foreclosure defense attorney. He has been representing homeowners for more than 45 years. He and his associates can be reached for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.
Is it possible to stop paying your mortgage, and live in your home for many years, and stop the bank in its tracks from forcing you to make payments to them or successfully foreclosing on your home? The answer to this question is yes! If your bank fails to sue you, in the State of New York, for a period of six years from the time they accelerated the mortgage, you have a complete legal defense to the foreclosure lawsuit. This defense is known as the statute of limitations. If you plead this defense in your Answer to the Summons and Complaint you can take action to have the bank’s foreclosure lawsuit dismissed!
Defense Available to Thousands of Homeowners
It is estimated there are thousands of homeowners who have not made mortgage payments in the past six years in the State of New York, who have this defense available to them when they are sued in foreclosure. There are a variety of reasons that have caused the banks to delay in bringing foreclosure lawsuits. The federal government has made 69 separate changes to its mortgage modification programs. This has forced lenders, on numerous occasions, to withdraw previous offers to homeowners and extend new terms. This ties the house up in a pre-foreclosure situation for long periods of time.
In addition, many banks have poor practices with regard to maintaining their records concerning mortgages on homes.
Seven Million Foreclosures In America
It is estimated there have been approximately seven million homes foreclosed upon in America since 2006. In addition, there are approximately another one million homes which will go into foreclosure at some time in the next few years.
I personally see cases where there are valid statute of limitations defenses which can be plead in the Answers for my clients. In many of the cases which our office handles the lenders themselves are to blame for a case not moving forward in a foreclosure proceeding for six years.
Owning a Home For Free
Recently, Judge Michael B. Kaplan sitting in a United States Bankruptcy Court in Trenton, New Jersey, wrote an opinion reflecting about the foreclosure crisis. This judge had previously written “no one gets a free house.” In his recent decision Judge Kaplan stated “with the proper measure of disquiet, and chagrin, this court now must retreat from this position.”
Conclusion
One of the first things every foreclosure defense lawyer must look for when a client comes to their office whose home is in foreclosure, is whether a statute of limitations defense can be plead in their Answer.
Homeowners had originally taken out a mortgage with Countrywide Mortgage Company. Countrywide assigned the mortgage to Bank of New York Mellon. Bank of New York Mellon brought a foreclosure lawsuit in Kings County, New York. The foreclosure proceeding was based on the fact the homeowners had failed to make their payments pursuant to the terms of the mortgage.
Non-Party to the Lawsuit Opposes Foreclosure
Rivera, claiming he was not a defendant or a party to the lawsuit but nevertheless an interested party based on his ownership of Ozone Park Management, submitted an affidavit opposing Bank of New York Mellon’s application for a default judgment and appointment of a referee. Justice Francois Rivera sitting in the Supreme Court Part in Kings County which deals with foreclosure lawsuits, found Rivera, a non-party to the lawsuit, had failed to bring a cross-petition for leave to intervene in the case. Since he was not a party to the lawsuit and didn’t intervene in the litigation, his affidavit in opposition to Bank of New York Mellon’s motion could not be considered by the court.
Court Denies The Bank’s Motion
Justice Rivera found the Complaint in the lawsuit was verified by the attorney for the bank. Since it was not verified by a bank officer with knowledge of the transaction, the affidavit of the attorney did not meet statutory requirements. In addition, an affidavit of merit which was submitted from Ussery, an individual representing New Penn Financial, the servicing agent, also did not provide information with regard to what relationship this entity had with Bank of New York Mellon. In addition, the court found the moving papers did not provide documentary evidence showing New Penn Financial even had the authority to make a presentation on behalf of Bank of New York Mellon. Based on the aforementioned, Justice Rivera denied the application for a default judgment and the appointment of a referee brought by the bank.
Conclusion
If you hire a foreclosure defense attorney who digs deep enough, they sometimes find mistakes, omissions, failures to provide appropriate information and other defenses which can be utilized to cause the foreclosure lawsuit to be dismissed.
Finding Errors By The Bank’s Servicing Organization
You should maintain organized records with regard to all transactions concerning financial institutions who hold your mortgage and their servicing organizations. There is a federal statute called the Real Estate Settlement Procedures Act. It is commonly referred to as “RESPA”. This provides you with a manner in which you can challenge many of the types of errors and improper practices engaged in by banks and their servicing organizations. It also gives you an ability to obtain the information necessary to make challenges.
To obtain the information under the RESPA law you should send the servicing organization by certified mail, a written request identifying you as the homeowner who entered into the loan and the account and information regarding the loan. The servicer has a legal obligation under the RESPA statute to notify you within 5 business days of their receipt of your qualified written request acknowledging your request was received by them. Thereafter they have 30 business days to provide you the information you requested be produced or explain to you in writing why it cannot be produced. If it cannot be produced they must provide you with the name and contact information of an individual with whom you can follow up to obtain this information. It should be noted the 30 business days to comply with your request can be extended by 15 business days if the servicing organization gives you written notification within the 30 day period of their request for an extension and the reasons why they are requesting this extension. Once you have made this request and the servicer is working on a response, they cannot report to a credit bureau information regarding alleged overdue payments that relate to the information contained in your request. If you should request this information after the foreclosure lawsuit has been initiated it will continue during the term that the request is being processed. In the event the servicing organization you requested the information from is no longer the servicing organization and there is another servicing organization which has replaced this servicing organization your written request must be sent not more than one year after the transfer to the new servicing organization.
Statutory Damages
Should the servicer fail to comply with your request, you can take legal action against the bank and you are entitled to $2,000 in statutory damages plus reimbursements for all of your attorney’s fees and in addition you are entitled to be compensated for any other losses or damages you might have. Unfortunately, due to the lobbying efforts of banks, this remedy will not cause the foreclosure action to stop or have any impact on the foreclosure lawsuit.
Banks and their servicing companies make mistakes. Homeowners, at one time, blindly believed whatever a bank did and whatever documents they submitted were always correct. Since the mortgage crisis started in 2008, there have been dozens of publications of inappropriate actions, mistakes, issues involving robo-signing and bad practices by financial institutions. As a result of these disclosures, attorney generals in all 50 states as well as the United States Attorney General have brought lawsuits which have resulted in banks all over the country paying hundreds of billions of dollars in fines and penalties.
Katherine M. Porter, a law professor, conducted a study based on the filings of 1,300 Chapter 13 bankruptcy cases. Her study revealed, in a majority of these bankruptcies, documents submitted by the holders of the mortgage contained errors (Misbehavior and Mistake in Bankruptcy Mortgage Claims, Texas Law Review, 2008.)
What Type Of Mistakes To Look For
Mortgage servicing companies cannot always be counted on to give you credit for all of your mortgage payments. They may charge excessive fees in violation of state laws. They may fail to advise you that you can redeem your property by becoming current on your mortgage payments. In the event you seek to reinstate your mortgage, and you receive a statement from the mortgage servicing company with regard to what they claim is necessary to be paid to reinstate your mortgage, that reinstatement must have an accurate itemization of what they claim is due them. An example of a mortgage servicer mistake would be charging you for a reappraisal or home inspection on your home when the mortgage documents don’t make it an obligation of yours to pay these fees. The following are examples of common mortgage servicer mistakes:
