Foreclosure Defense Attorney in New York

Long Island Home Sales Going Down But Prices Going Up

June 17, 2014 by Elliot S. Schlissel

The number of homes that were sold on Long Island during April of 2014 went down in relation to April of 2013. The number of transactions were approximately 20% lower than it was for April of 2013. One of the reasons given for the reduction of home sales was the fact that it was a long, cold winter. Prospective homeowners were kept off the market by the problems caused by the weather.

Home Prices Go Up

Even though less homes were sold in April 2014 than in 2013, the median price for home sales in Nassau and Suffolk Counties went up. The median price for homes in Nassau County in April of 2014, was up almost 6% from 2013, with a price of approximately $410,000. In Suffolk County, the median home price was approximately $301,000, with an annual gain of only 0.07%.

Mary Ann Murphy, a broker with Call Murf Real Estate in Lindenhurst, has recently stated the areas on Long Island which were subject to being devastated by Superstorm Sandy have been seeing much more sales activity. Although these properties are selling at a discount, they are starting to move.

Real Estate Brokers Expect a Busy Summer Selling Season

Brokers are anticipating the market will rebound during the summer months this year. In both Nassau and Suffolk Counties, it still takes approximately a year for the average home to be sold. In a more balanced real estate market, there would only be a six month delay for the average home to be sold.

About the Author

Elliot S. Schlissel is an attorney with more than 45 years of experience representing homeowners regarding fighting foreclosure lawsuits, obtaining mortgage modifications, and protecting homeowners’ rights. He offers free consultations to prospective clients.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: foreclosure attorney, mortgage modifications, real estate market

Avoiding Foreclosure

June 15, 2014 by Elliot S. Schlissel

Foreclosure for many homeowners is a threatening, harrowing experience they seek to avoid. If a homeowner fails to make mortgage payments, foreclosure will most likely occur. Foreclosure is the beginning of the initiation of legal proceedings by a lender to take back the property used to secure the loan. The property is usually the parties’ home. At the end of a foreclosure proceeding, if the family is still in their home, the purchaser of the property can bring an eviction proceeding in the landlord tenant court to have the family removed from their home.

Should the home be sold at a foreclosure sale for less than the amount of the mortgage, interest, late fees, and other penalties, the financial institution who held the mortgage can move forward to obtain a deficiency judgment against the mortgagors for the amount that is still owed to them after they receive the proceeds of the foreclosure sale.

What is the best way of dealing with foreclosure? Avoid it!

Falling Behind on Your Mortgage

If you are falling behind on your mortgage, you should contact your bank. You should ask your bank whether they have any programs that will be helpful to you in dealing with temporary financial setbacks. Most lenders have a variety of programs available to homeowners suffering from short term financial difficulties.

If you receive letters from your financial institution or threats of foreclosure by attorneys for the financial institution, you should carefully read these letters. Ignoring these notices is not a good idea. Respond to the correspondence either on your own or retain an experienced foreclosure lawyer to help you deal with the situation. There are a variety of rights homeowners have with regard to mortgages and foreclosures. An experienced foreclosure defense lawyer will be able to explain these rights to you. In addition, the attorney will be able to discuss with you defenses that can be raised in the event of a foreclosure lawsuit against you.

If you have financial problems you could discuss the possibility of a bankruptcy. Credit cards and other non-secured creditors should not be paid before you make mortgage payments. Your home provides security for you and your family. It should be one of the first bills to be paid by you.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: foreclosure, foreclosure defense, foreclosure proceedings, New York foreclosure attorney

Foreclosure and Reverse Mortgages

June 11, 2014 by Elliot S. Schlissel

The purpose of a reverse mortgage is to allow seniors who have homes with substantial equity to pull the equity out of their home and still be able to reside in the home for the rest of their lifetime without making mortgage payments. The difference between a reverse mortgage and a traditional conventional mortgage is the individual taking out the loan under a reverse mortgage does not have to make monthly mortgage payments. The lender only gets paid when the mortgagor dies, or in the event of the sale of the home prior to the mortgagor’s death.

No Personal Obligation to Pay a Reverse Mortgage

There is no personal obligation on the mortgagor to make payments with a reverse mortgage like there is in a traditional mortgage. The only method the financial institution has to collect under a reverse mortgage is from the sale of the home. The lender is therefore exposed to not being capable of having its loan repaid should the market conditions reduce the value of the home or the home be in poor condition. However, the lender can obtain insurance from HUD to protect it from the risk of the home not being worth the amount of the loan plus interest.

Underwriting Reverse Mortgages

The loans are underwritten by financial institutions based on a number of factors. The older the mortgagor is, the more money can be obtained in the mortgage. This takes into consideration the fact that the older the mortgagor is, the smaller his or her life expectancy will be. The shorter life expectancy allows the loan to become due and payable earlier in time.

In the event there are co-mortgagors on the loan, the loan is not called due until the second of the two mortgagors dies.

Problems with Reverse Mortgages

In recent years, when homes were owned by husbands and wives and one of the spouses was older than the other, the banks would convince the younger spouse to deed his or her share of the property to the older spouse. This action was taken so the underwriter would allow a larger amount of money to be borrowed in the mortgage based on the shorter life expectancy of the older spouse. The younger spouses were assured in the event the older spouse dies, they would be allowed to continue to reside in the house. Unfortunately, that is not what happened! When the older spouse, the mortgagor, died the surviving spouse was notified by the financial institutions the reverse mortgage was due and payable because the surviving spouse was not a party to the mortgage loan. Since the surviving spouse was also a senior, and had limited cash flow in most situations, he or she was unable to make the mortgage payments and therefore the house would end up in foreclosure.

HUD has recently dealt with this issue.

New HUD Policy

With regard to all reverse mortgages that are given by financial institutions after August 4, 2014, the new rule requires the non-borrowing spouse who had been married to the borrowing spouse (mortgagor), at the time of the closing, will be afforded protection by this rule and the financial institutions will not be permitted to bring foreclosure lawsuits against the surviving spouse or request payment of the mortgage upon the death of the spouse who was on the mortgage. The financial institution will not be entitled to bring a foreclosure proceeding until the surviving spouse also dies. It should be noted this rule only applies to parties who were actually married at the time the mortgage was taken out. In the event a reverse mortgage is taken out and then the mortgagor marries, that surviving spouse would not be included under this new rule and would need to either pay off the mortgage or have the house subject to being foreclosed upon.

Filed Under: Foreclosure, Uncategorized Tagged With: foreclosure defense attorneys, mortgage modification, New York foreclosure attorney, reverse mortgage

Judges Assigned to Foreclosure Court Conferences

June 6, 2014 by Elliot S. Schlissel

The courts in New York are being flooded with new foreclosure lawsuits. Before the litigation stage in a foreclosure lawsuit, the parties must attend mandatory foreclosure mediation conferences. The Office of Court Administration is assigning new judges to deal with the increased volume of foreclosure court conferences in the Counties of Nassau, Suffolk, Kings and Queens. This action is being taken related to numerous complaints which have been filed by the attorneys for homeowners. These complaints generally state the financial institutions attorneys’ who are showing up at the foreclosure court conferences have no authority to make the decisions necessary to amicably resolve these cases.

Bank Attorneys Have No Authority To Settle Cases
or Approve Mortgage Modifications

In a study provided by legal service providers, it was found in eighty percent of 252 settlement conferences which took place over a 90 day period last year, the lawyers representing the financial institutions either lacked the appropriate information concerning the cases or did not have settlement authority. Justice Barry Kamins, the Chief of Policy and Planning for the courts in New York has taken action to provide more judges at the foreclosure settlement conferences in the four counties that have the heaviest backlog of foreclosure cases for the purpose of having judges immediately available for resolving disputes that occur at the foreclosure court conferences.

New York Courts Bursting At The Seams With Foreclosures

In 2013, there were 87,000 foreclosure cases pending in the courts in New York. As of April 1, 2014, there are more than 90,000 cases now pending in the courts.

The purpose of foreclosure court conferences is to allow the homeowners and attorneys for the banks to get together for the purpose of negotiating a mortgage modification to prevent the house from being sold at foreclosure sales.

New York Law

New York Civil Practice Law and Rules section 3408(c) which governs foreclosure court conferences states “the plaintiff shall appear in person or by counsel, and if appearing by counsel, such counsel shall be fully authorized to dispose of the case.” In another section of CPLR 3408(f) it states, both sides to the legal proceeding “shall negotiate in good faith to reach a mutually agreeable resolution, including a loan modification, if possible.” Foreclosure defense lawyers are aware most financial institutions are ignoring this statute.

The large majority of attorneys who appear for banks do not have any settlement authority. It is estimated at less than ten percent of the attorneys who appear at foreclosure court conferences for financial institutions have any settlement authority. A recent report with regard to the conduct at foreclosure court conferences states the courts should “not tolerate rampant violation of the settlement conference law and should enforce the law as it is written vigorously.” The report goes on to state when the attorneys for the banks appear without the appropriate authority or do not negotiate in good faith, judges should create consequences for the lenders such as tolling or barring interest on the outstanding balance or staying actions until the financial institutions fulfill their obligations under the settlement conference law.

Conclusion

The purpose of the foreclosure court conferences were to provide an intermediate step prior to full fledged litigation to allow beleaguered homeowners to work out mortgage modifications to keep them in their homes. The statute was a step in the right direction. However, the banks are not complying with this statute. If they continue to fail to comply, judges should punish them for violation of this statute!

Filed Under: Foreclosure, Foreclosure Defense Tagged With: foreclosure defense, foreclosure proceedings, New York foreclosure defense lawyers

Owning a Home is Better Than Renting

May 31, 2014 by Elliot S. Schlissel

There are a number of factors that should be taken into consideration when comparing the benefits and problems of home ownership versus renting.

No Mortgage vs. No Landlord

When you own a home you are in charge. It is yours! It belongs to you. If something breaks, you fix it. When you rent, you are living in the landlord’s house. If something breaks you need to contact the landlord to fix it. Landlords are not always very responsive to helping their tenants deal with problems in their apartments.

Fixed Rate Mortgages Don’t Go Up: Rent Does!

If you buy a house and obtain a fixed rate mortgage, you will pay the same amount each and every year. If you rent an apartment, periodically the landlord will raise your rent. It should be noted although your mortgage rate won’t go up, taxes on real property go up over time.

Homeowners Obtain Tax Deductions for Mortgage Interest

There are significant tax benefits for owning a home. You can deduct, in your federal and state income taxes, the interest paid on your mortgage. In addition, there are a variety of energy efficient improvements to the home that can be made which are also tax deductible. When you sell your home, the first $250,000 in profit payable to the owner of the home is not subject to capital gains tax.

Managing Your Own Space

When you are in an apartment there are small cosmetic things you can do. However, you cannot customize the space to meet all your needs. If you own a home, you can move walls and do anything you want with it. The space can be modified to meet all of your personal needs and/or whims.

Homeowners Can’t Be Evicted

If you rent an apartment and you don’t pay rent, thirty days afterwards a landlord can bring a summary proceeding and have you removed from the apartment. Eviction proceedings are relatively quick proceedings (although in the City of New York they can take as much as six to eight months). However, if you don’t pay your mortgage, and a financial institution has to bring a foreclosure lawsuit, those proceedings can take as long as three to five years. During that period, you can be living in your home while not making mortgage payments.

Elliot S. Schlissel is a foreclosure lawyer. He represents clients whose homes are going into foreclosure. He helps them stay in their homes, obtain mortgage modifications, and litigate a variety of issues involved regarding foreclosures with financial institutions. Elliot can be reached for a free consultation at 1-800-344-6431, 516-561-6645, and 718-350-2802.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: defective foreclosure lawsuits, mortgage modifications, New York foreclosure defense lawyers, real estate

Foreclosure Dismissed: Bank Makes Technical Mistake

May 29, 2014 by Elliot S. Schlissel

In a case before Justice Wilma Guzman in Bronx County, Judge Guzman dismissed a foreclosure lawsuit. Deutsche Bank had sued for foreclosure. They moved for a judgment of foreclosure and asked that they be allowed to sell the property. The defendant, Samuel Lopez, brought a cross-motion. He asked that the foreclosure proceeding be dismissed. He claimed there was a failure to comply with a condition precedent of Real Property Actions and Proceedings Law sections 1303 and 1304. He argued in his motion the section 1304 notice to the defendants, provided by American Servicing Company, indicated it was a debt collector and informed defendants they had a right to cure their default and failure to do so might result in American Servicing Company starting a lawsuit against them. Deutsche Bank argued it was in full compliance with section 1304. It was pointed out its notice to the defendants did not contain the method in which the notice had been mailed. This is required by this section of the law.

No Evidence of Mailing

Judge Guzman took into consideration in rendering her decision to dismiss the foreclosure action that no evidence was presented of a first class mailing. There was also no affidavit of mailing for a lender, the lender’s agents or any individual with personal knowledge of the transaction. Justice Guzman’s decision stated a mortgagee’s failure to strictly comply with a condition precedent required the dismissal of this foreclosure legal action.

In this case, American Servicing Company did not provide documentation they were the appropriate loan servicing agent for Deutsche Bank. They also did not fully comply with section 1304 of the Real Property Actions and Proceedings Law. Justice Guzman also pointed out in her decision the Home Equity Theft Prevention Act required a notice as a mandatory “condition” before a financial institution could proceed with a foreclosure lawsuit. The failure of Deutsche Bank and its servicing agent to strictly comply with this statute was valid grounds to dismiss this case.

Conclusion

If a bank doesn’t dot its i’s and cross its t’s, you can get the case dismissed!

Filed Under: Foreclosure, Foreclosure Defense Tagged With: defective foreclosure lawsuits, foreclosure defense attorneys, foreclosure proceedings

Strategic Default

May 22, 2014 by Elliot S. Schlissel

Mortgage Basics

Individuals who take out a mortgage or refinance a mortgage generally execute two types of documents. The first is a promissory note. A promissory note is simply an “I owe you.” It creates a financial liability to repay the amount borrowed. The second item that is executed at the time of the closing is a mortgage. The mortgage is the document that secures the debt obligation. The mortgage provides the bank with a lien on your property. If you don’t make the mortgage payments the bank forecloses and sells your property at auction.

What Banks Do When You Don’t Make Payments

The first thing a bank does if you stop making your mortgage payments is they analyze the value of your home and its liquidation ability to pay the loan off. They then hire an attorney and the attorney files a foreclosure legal action on behalf of the bank.

Deficiency Judgment

If when your home is sold in the foreclosure sale, the amount received by the bank is insufficient to pay off the promissory note, a deficiency exists. A bank can bring a second lawsuit to obtain a judgment against you and force you to pay this deficiency amount. Here is an example. Your home is worth $300,000. But you owe $400,000 on it related to your mortgage. You fall behind and the bank takes legal action against you and eventually they sell your home. At the time of sale a speculator buys your home for $200,000 ($100,000 less than it is actually worth. This often happens because at foreclosure sales, speculators bid cash on homes that they know very little about other than an appraisal from the exterior and review of what other homes in the area sold for).

The bank receives only $200,000 from the transaction when you owe them $400,000. That leaves a deficiency against you of $200,000. The bank can sue you and obtain a judgment for that $200,000. One remedy you would have would be to thereafter file bankruptcy and eliminate the balance of the deficiency.

Strategic Default and How It Works

A strategic default involves taking into consideration whether your home is under water and it may never be worth the value of the mortgage. You simply stopped making your mortgage payments. Thereafter later on you negotiate a short sale, a mortgage modification, or a deed in lieu of foreclosure.

Strategic default means you are simply walking away from your mortgage. It takes place when a borrower decides he or she is going to intentionally not pay his or her mortgage because it no longer is financially practical. This usually occurs when the house is under water (worth significantly less than the amount of the mortgage).

Strategic default should not be undertaken without sound legal advice from an experienced attorney who has handled numerous transactions of this nature. There are a variety of pitfalls that can take place concerning a strategic default. If you are considering walking away from your home and/or mortgage because you can’t afford to pay it, feel free to call our office for a consultation. This is not a matter that should be taken lightly. Although a strategic default may be appropriate in some situations, there are many situations where it is not.

Elliot S. Schlissel is a foreclosure lawyer. He has helped scores of his clients stay in their homes and fight foreclosure proceedings. Elliot sues banks and other financial institutions who have broken laws, failed to obtain appropriate assignments, and who do not have appropriate standing to bring foreclosure lawsuits. His phones are monitored seven days a week. Call for a free consultation.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: foreclosure attorney, foreclosure defense, Mortgage Modifications attorney

FHA Gives Homeowners a Second Chance to Buy a Home

May 20, 2014 by Elliot S. Schlissel

The Federal Housing Authority (FHA) has a new program which will stay in effect until September 30, 2016. This program offers homeowners who have lost their homes due to short sales, whose homes have been sold in foreclosure, or who have given deeds in lieu of foreclosure back to financial institutions, a second opportunity to purchase a home. In the past, if a consumer lost their home related to a foreclosure case, they would have to wait thirty-six months before they could apply for a new FHA loan. However, under this new program, they would only have to wait twelve months after a foreclosure sale or a short sale to apply for a new FHA loan as long as they can document the financial issues that caused them to lose their prior home.

Reduction in Income

If the prospective homeowner can show that they had a loss of income of twenty percent or more for a minimum of six months prior to the loss of their home, it will help them qualify under this new program.

Credit Score

Under the new FHA program, the homeowner will need a credit score with a minimum of 640. In the event the prospective homeowner could not meet this credit score requirement, they must go through a HUD approved counseling agency concerning the issue of home ownership and residential mortgage loans.

The homeowner should be aware that supporting documentation with regard to any financial issues, hardships, illness, loss of employment or other problems that caused the individuals to lose their initial home must be fully documented. A letter explaining the situation will not be sufficient to qualify for this new FHA program.

Conclusion

FHA is extending themselves to homeowners and giving them a second chance that has never previously been offered to families who have lost their homes.

Elliot S. Schlissel is a foreclosure defense lawyer. Elliot and his staff of attorneys represent individuals and families throughout the Metropolitan New York area whose homes have been foreclosed upon by financial institutions and mortgage companies. Elliot assists his clients in mortgage modifications. In addition, Elliot brings lawsuits against financial institutions who have broken laws, failed to obtain proper assignments and who do not have standing to bring their foreclosure lawsuits. Elliot has an unparalleled record of success in keeping his clients in their homes after foreclosure proceedings have been initiated against them.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: financial crisis, foreclosure proceedings, New York foreclosure defense lawyers, real estate

New Federal Mortgage Disclosure Requirements

May 14, 2014 by Elliot S. Schlissel

The Consumer Financial Protection Bureau has propounded new mortgage disclosure requirements. Financial institutions and mortgage lenders will need to provide individuals and families who take out mortgages with much more detailed disclosure material at the time of closing on the loan. The new disclosure requirements replace the existing Truth in Lending Statements, HUD-1 Settlement Statements and the present Good Faith Estimate Disclosure Statements required to be provided by financial institutions.

Three Business Day Requirement

All individuals applying for loans must receive, under these new requirements, loan estimates within three business days. These loan estimate disclosure documents must provide the specific loan terms and the estimated expenses the borrower will incur at the time of closing on the transaction. A second additional disclosure statement will also have to be provided to the individuals taking out a mortgage within three business days before the actual closing takes place. This disclosure document will need to provide a detailed accounting of all aspects of the mortgage loan transaction.

Effective Date August 1, 2015

The new rules promulgated by the Consumer Financial Protection Bureau will go into effect on August 1, 2015. All loans processed after that date will require the dual disclosures discussed above.

Financial institutions and mortgage companies have been modifying their procedures to deal with these new rules and regulations that will go into effect in approximately a year and a quarter. These changes to the disclosure requirements which providers need to give consumers, are the most significant changes and modifications regarding mortgage loan disclosures that have taken place in decades. It is hoped that these new disclosure requirements will educate consumers as to how much they are borrowing, how much it will cost them, and whether they can afford to take the mortgage they seek to obtain.

Elliot S. Schlissel is a foreclosure attorney. He has helped scores of New Yorkers stay in their homes and fight off foreclosures. Elliot and his staff of attorneys also assist their clients in filing Chapter 7 bankruptcies, Chapter 13 bankruptcies, and applying for mortgage modifications. Elliot’s greatest satisfaction is when he can help the families he represents continue to live in their homes.

Filed Under: Bankruptcy, Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: bankruptcy proceedings, Chapter 7, foreclosure, foreclosure defense, foreclosure defense attorneys, mortgage modification attorneys

Rabbi Unable to Stop Foreclosure on Synagogue

May 9, 2014 by Elliot S. Schlissel

Valley National Bank brought a foreclosure lawsuit with regard to a synagogue in Brooklyn. In 2008, the synagogue borrowed $500,000 from State Bank of Long Island. This bank thereafter merged with Valley National Bank. The congregation of the synagogue alleged that the synagogue had two functions. It was a place of prayer and it was the principal residence of the rabbi and his family. They claim “this dual property function had existed since 1970 when the present rabbi’s grandfather established a congregation at its present location.

In such Hasidic Sects, the Shtiebel is the rabbi’s home and his presence is the essence of the Shtiebel.” The congregation alleged in their papers when the mortgage was taken out, the bank was made aware Rabbi Teitelbaum’s residence was located on the site of the synagogue.

A Residential Foreclosure?

The congregation argued that the foreclosure was therefore a residential foreclosure. It should therefore have been in a residential foreclosure part and not in a commercial foreclosure courtroom. As a residential foreclosure, Rabbi Teitelbaum was entitled to notice pursuant to New York Real Property Actions and Proceedings Laws concerning the residential foreclosure.

Bank Argues Rabbi Teitelbaum Has No Standing

The foreclosing bank’s position was that Rabbi Teitelbaum was not a necessary party to the foreclosure lawsuit. They claimed it was a commercial loan and he was not a signatory on the loan. The bank’s attorneys stated in their papers, “instead of presenting a modified defense to [Valley National Bank’s] claims, borrower obfuscates by mischaracterizing the facts in attempts to divert attention from its acknowledged commercial loan default by repeatedly alleging that the rabbi and his family actually reside in the synagogue that is the mortgaged commercial premises.”

Judge Holds Property is Not Residential

The judge on the case rendered a decision that the property at issue was a religious structure and not residential property. The judge went further on to hold Rabbi Teitelbaum was not an indispensable party to the lawsuit. Judge Carolyn Demarest rejected the argument submitted by Teitelbaum. She held that even though he lived on the premises, he was not a signatory to the loans, promissory note, or the mortgage. He therefore was not an indispensable party to the lawsuit.

When Judge Demarest was presented with a similar case where the Appellate Division, Second Department made a different ruling, she stated, “in this action, defendant does not establish that Teitelbaum has a lease to the property and even it Teitelbaum does have a lease he may not be dispossessed by a purchaser at a foreclosure sale absent further proceedings.” With this, she was referring to the fact in the event the bank took title to the property they would still have to bring an eviction proceeding to get Rabbi Teitelbaum, his wife and eight children, off the property.

Conclusion

This is a very close call made by Judge Demarest. I would suggest Rabbi Teitelbaum appeal this decision to the Appellate Division of the Second Department. He may be able to persuade them that he should be named as a party because he was a tenant, even without a lease. Month to month tenants are still tenants and they should be named in all foreclosure lawsuits as interested parties.

Elliot Schlissel is a foreclosure attorney representing individuals and families in residential or commercial foreclosure lawsuits throughout the Metropolitan New York area. Elliot and his staff of dedicated lawyers have an excellent success rate in keeping families in their homes and stopping foreclosure lawsuits in their tracks.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: defective foreclosure lawsuits, defective mortgages, foreclosure, foreclosure proceedings, New York foreclosure attorney

Long Island Home Sales Going Down But Prices Going Up

Avoiding Foreclosure

Foreclosure and Reverse Mortgages

Judges Assigned to Foreclosure Court Conferences

Owning a Home is Better Than Renting

Foreclosure Dismissed: Bank Makes Technical Mistake

Strategic Default

FHA Gives Homeowners a Second Chance to Buy a Home

New Federal Mortgage Disclosure Requirements

Rabbi Unable to Stop Foreclosure on Synagogue

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