Foreclosure Defense Attorney in New York

New York’s Backlog of Foreclosure Cases

November 7, 2013 by Elliot S. Schlissel

The foreclosure process in New York, even under optimum circumstances, can take as long as three years. New York has enacted legislation regarding the robo-signing scandal that was uncovered in 2010. There are new court imposed rules affecting attorneys representing banks that seek to bring foreclosure lawsuits.

New Foreclosure Requirements

The attorneys for financial institutions must prepare an affidavit or swear under penalties of perjury that the foreclosure documents being submitted are accurate. Consternation by lender’s attorneys with regard to the accuracy of notes, mortgages and assignments of mortgages have caused delays as long as two years in the New York foreclosure process.

Lenders themselves must verify, when a foreclosure action is initiated, that the lender has the right to sue. This deals with the issue of standing. Notes and mortgages are sold as commercial paper. If the sale is not accompanied by an appropriate assignment from one bank to another, the second bank has no right to bring a foreclosure lawsuit.

The delays in foreclosure proceedings can cause interest and penalties to accrue against the homeowner.

Foreclosure Settlement Conferences

When a foreclosure lawsuit is initiated in the State of New York, the homeowner is entitled to attend a foreclosure settlement conference. At these conferences, judges and their staff seek to mediate foreclosure issues and assist homeowners in obtaining mortgage modifications. Unfortunately, the reality is many of the homeowners whose homes have gone into foreclosure could not afford, when they bought the homes, to pay the mortgages and due to the economic crisis facing America have even less capability today of paying their mortgages.

Elliot S. Schlissel, Esq. is a foreclosure defense lawyer representing homeowners throughout the metropolitan New York area who seek to fight foreclosure lawsuits.

Surging Foreclosures on Long Island

November 5, 2013 by Elliot S. Schlissel

As the mortgage crisis is fading in many parts of the United States, it is still heating up on Long Island. More than 1,300 foreclosure cases have been filed in the first eight months of 2013. This is more than a 50% increase during the same eight month period of 2012. Foreclosures have been increasing on Long Island even while there have been significant drops in foreclosure proceedings brought in other areas of the country.

Darren Blomquist, the Vice President of RealtyTrac, recently stated “we’re definitely seeing the Long Island area buck the national trend when it comes to foreclosure activity.” Long Island has more than double the national average of mortgages that are significantly behind on their payments. In July of this year, more than eight percent of all homes in Suffolk County and six percent of all homes in Nassau County were either in foreclosure or moving towards being sued in a foreclosure proceeding.

Why Foreclosure Persists on Long Island

There are numerous reasons why Long Island has had a higher level of foreclosures than the rest of the country. The foreclosure process is long and drawn out in the State of New York. Long Island was an area that had more than the national average of high risk home mortgage loans. Long Islanders also lost many high paying jobs. The new jobs that have been created in the past few years on Long Island tend to be minimum wage or low wage positions.

Mortgage Modification Problems

Long Islanders are facing similar problems to homeowners in other states facing foreclosure. The mortgage modification process does not work well. There are approximately 45,000 homes facing foreclosure on Long Island. For those families, the recent rise in the sales price of homes is not helping them out of their financial difficulties.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: foreclosure, foreclosure attorney, foreclosure crisis, mortgage modification, mortgage modification attorneys, New York foreclosure attorney, New York foreclosure defense lawyers

What Do You Need to Know Before Buying a Home?

November 2, 2013 by Elliot S. Schlissel

When buying a home, prospective purchasers need to look at all of the factors involving the home. They should not be overly focused on the most attractive details of their prospective purchase. Sometimes prospective purchasers fall in love with the kitchen or the bathrooms. While an attractive kitchen and modernized bathrooms are important, there are other factors to be taken into consideration when purchasing a home.

The Home’s Condition

Before purchasing a home, every prospective purchaser should hire an engineer for the purpose of looking into the heating system, plumbing system, electrical system, checking that the roof doesn’t leak, and looking into the structural integrity of the house. The engineer should be especially careful to look into whether the house has drainage issues and/or whether it floods in heavy rainstorms.

Location, Location, Location

Before purchasing a house you should drive around the house’s neighborhood. You should look into how far the house is from schools, public transportation, and stores. Purchasing a house in an area that has an excellent school district adds value to the house and will help your children advance in their lives and careers.

Taxes

The amount you will be paying each year for school taxes and real estate taxes should be a significant factor in making a decision as to whether this is the right home for you. Unfortunately, taxes usually go up. You should take into consideration how much the taxes in this area have risen in the last few years and plan to pay higher taxes in the future on the home.

Nuisances

Are there businesses, factories or other circumstances nearby the prospective home that will cause either a noise, pollution or general type of nuisance for you?

Home’s History

Some people are very superstitious about buying a home where individuals died or were murdered in. If this is an issue for you, you should look into the history of who owned the home and what happened to those former homeowners.

Meeting Your Needs

Lastly and most importantly, the home must meet your needs. Are there enough bedrooms? Will there be enough space in the home? Above all, can you really afford this home?

Elliot S. Schlissel, Esq., for more than 45 years has been representing homeowners with regard to the purchase and sale of single family homes. In addition, Elliot and his aggressive associates fight foreclosure lawsuits, help their clients obtain mortgage modifications, and are well known foreclosure lawyers.

Filed Under: Foreclosure Tagged With: foreclosure, foreclosure attorney, foreclosure defense, foreclosure defense attorneys, foreclosure defense lawyers, foreclosure proceedings, mortgage modification attorneys, real estate, real estate attorneys

JP Morgan $13 Billion Settlement for Bad Mortgage Practices

October 31, 2013 by Elliot S. Schlissel

For months now, JP Morgan Chase and the Justice Department have been in negotiations with regard to a settlement resolving federal allegations concerning the bank’s sale of faulty mortgage securities. The Justice Department’s position is the sale of these faulty mortgage securities was a major factor in the mortgage/real estate crisis in America. The $13 Billion penalty would be the largest penalty ever paid by a single institution. The Justice Department has been investigating JP Morgan Chase for many months with regard to its activities concerning mortgage backed securities. In the event this settlement is entered into, it would be a major win for the Justice Department. JP Morgan Chase is the largest bank in the country. This settlement will not stop the federal government from bringing criminal charges against JP Morgan Chase. However, the deal would end a New York State lawsuit brought by Attorney General Eric T. Schneiderman and an investigation in the State of California.

HSBC and Barclay’s Bank Fined Also

Attorney General Holder has in the past levied multimillion dollar fines against other large financial institutions which includes both HSBC and Barclay’s Bank.

JP Morgan seeks to resolve this investigation regarding its conduct in recent years. As a result of this investigation, the bank’s first quarter report showed a loss. This was the first quarterly loss for JP Morgan Chase in ten years. The bank’s Chief Executive Officer, Jamie Dimon, seeks to resolve these investigations into the bank’s conduct. With this in mind, he is taking a conciliatory approach in his dealings with regulators. He has stated that the problems JP Morgan is facing are “painful.”

In 2011, JP Morgan Chase was one of the eighteen banks sued by the Federal Housing Finance Agency. That suit was to recoup losses sustained by Fannie Mae and Freddie Mac with regard to bundled securities that were improperly underwritten as home loans.

Elliot Schlissel is a foreclosure defense lawyer. Elliot and his associates litigate foreclosure lawsuits and they help their clients obtain mortgage modifications. Elliot and his aggressive associates work hard to keep their clients living in their homes.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: defective foreclosure lawsuits, defective mortgages, financial crisis, foreclosure, foreclosure attorney, foreclosure defense, mortgage modifications

Appearance at a Foreclosure Settlement Conference Considered an “Informal Appearance” and not a Default by the Mortgagor

October 7, 2013 by Elliot S. Schlissel

In a case of first impression, Justice Jack Battaglia sitting in Supreme Court Real Property Part in Kings County, New York, dealt with an issue as to whether the appearance by the mortgagor at the mandated Foreclosure Court Conference part in Kings County without submitting a formal written answer to the summons and complaint can be considered an informal appearance denying the financial institution the ability to claim the homeowner was in default.

In this case, the financial institution brought a summary judgment application to the Court. A summary judgment motion claims there are no issues of fact and therefore no trial is necessary. The basis for the summary judgment was the default by the mortgagor, Butler, in this proceeding. There were two prior applications by the financial institution but questions concerning the affidavit of service caused them to be denied. The Judge had the case sent over to the Foreclosure Settlement Conference Part for mandatory foreclosure settlement proceedings.

Mr. Butler made numerous appearances at the Foreclosure Conference Part. The judge questioned whether since Butler appeared in the action in the Foreclosure Conference Part, how could she be “in default” for purposes of entering a judgment on default. The Court took the position, under New York case law, what Butler made was called an “informal appearance” within the time specified in the Summons and Complaint.
This is covered by New York Civil Practice and Rules § 320(a). The judge therefore entered a decision that Butler was not in default. A motion to enter judgement based on default could not be granted since Butler was not in default. Butler had participated in court conferences pursuant to this informal appearance. It should be noted, Butler appeared twenty-five times in the Foreclosure Conference Settlement Part and several other times before the court. The financial institution’s application for a default judgment was denied.

Elliot S. Schlissel is a foreclosure defense attorney representing homeowners throughout the metropolitan New York area. Elliot and his staff of attorneys have been keeping homeowners in their homes for more than 45 years.

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

New Law Helps Homeowners: Part II

October 4, 2013 by Elliot S. Schlissel

Standing to Sue

There is a key concept in New York law concerning standing to sue. If Bank 1 gives a loan to a homeowner and Bank 1 transfers or surrenders the mortgage to Bank 2, the homeowner is entitled to notice of the transfer. In addition, appropriate documents called an Assignment of Mortgage must be filed with the County Clerk’s office in the County in which the real estate is maintained. This applies to each and every subsequent transfer of the mortgage from one financial institution to another.

The failure to properly file all necessary documents or notify the homeowner disallows the financial institution at the end of the line from having standing to bring the lawsuit. In these cases, if the homeowner hires a foreclosure defense lawyer knowledgeable about these details, an affirmative defense of lack of standing can be placed in the answer to plaintiff’s complaint. This defense can be the basis for the dismissal of the lawsuit. My law firm has had numerous lawsuits dismissed because of lack of standing issues in the many foreclosure cases we have handled.

One of the additional purposes of this legislation is to clarify issues concerning who is entitled to sue a homeowner and how cases should proceed in a more orderly and logical manner, starting with the Foreclosure Court Conferences and thereafter with litigation.

Certificate of Merit

One of the purposes of this new statute is to eliminate the filing of misleading or fraudulent documents in foreclosure proceedings that has commonly been referred to as “robo-signing.” Chief Justice Jonathan Lipman of the New York State Court of Appeals, stated “the bill is crucial to ensuring the integrity and transparency of the foreclosure process especially for those New Yorkers impacted by the recent economic crisis.”

Certificate of Merit must be filed at the same time the foreclosure proceeding is initially commenced. The Certificate of Merit requires the attorney to attach to the Certificate any relevant documents concerning modifications, extensions, consolidations and assignments affecting the instrument and/or this indebtedness.

Missing Documents

In cases where the documents are missing or lost the statute allows the attorney or the representative of the plaintiff’s financial institution to file an appropriate affidavit which attests to all of the facts and veracity of those documents which are missing.

The Certificate of Merit specifically pertains to foreclosure lawsuits brought against owner occupied residences. This replaces the affidavits attorneys had been required to file under court administrative rules since 2010.

Legal Limbo

In the past, lenders have brought foreclosure lawsuits without the proper documentation that they were entitled to bring these lawsuits. This caused cases to be maintained on the court’s dockets for long periods of time tying up the legal system involved with foreclosures.

Christine Keef, a senior staff attorney with the Empire Justice Center, stated with reference to the new law “this is going to prevent homeowners from being stuck in this legal limbo in a time period when fees and costs continue to accrue on a loan, making it harder for the homeowner to afford a modification when one is offered.”

Elliot S. Schlissel is a foreclosure defense lawyer representing homeowners throughout the metropolitan New York area.

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

New Law Helps Homeowners: Part I

October 2, 2013 by Elliot S. Schlissel

The New York State legislature has passed a new statute which has an effective date of August 30, 2013. The statute impacts in the manner and procedures utilized by financial institutions and their attorneys commencing foreclosure proceedings within the State of New York.

Certificate of Merit

All foreclosure actions commenced after August 30, 2013, will require a Certificate of Merit. This document must be attached to the Summons and Complaint. The Certificate of Merit requires the attorney for the plaintiff to certify he or she has reviewed all of the facts in the case. In addition, the attorney will have to certify based on consultation with representatives of the plaintiff, (financial institution) who is identified in the certificate, that the attorney has taken the time to review pertinent facts and documents related to this proceeding. The attorney will have to review the mortgage, the security agreement, the note or the bond underlying the mortgage. Only after this review, if there is a reasonable basis for the starting of a foreclosure lawsuit, can the attorney at that point bring a proceeding to foreclose.

Note and Mortgage

This new statute will require the attorney for the plaintiff to attach a copy of the note and the mortgage to the Summons and Complaint. In addition, the attorney will have to attach all documents evidencing transfers leading from the original financial institution to the current plaintiff showing all documents have been appropriately filed and the party bringing this lawsuit has standing to sue the homeowner.

In the event the attorney and/or the financial institution does not completely comply with these new requirements the judge handling the case will have full authority to dismiss the foreclosure proceeding. In addition, the judge will have authority to deny all accrued interest and other financial expenses that increase the amount of the indebtedness owed by the debtor during the entire long foreclosure process.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: Certificate of Merit, foreclosure, foreclosure attorney, foreclosure defense, foreclosure defense attorneys, foreclosure proceedings, New York foreclosure attorney, Standing to sue

Foreclosure Abuse

September 30, 2013 by Elliot S. Schlissel

The fifty states and the federal government sued the largest five banks in the United States in 2012. The lawsuit dealt with numerous improper practices, foreclosure abuses, and failures by these institutions to deal with consumers in a fair and reasonable manner. Unfortunately, even though this lawsuit has been settled, foreclosure abuses still continue.

Lisa Madigan, the Attorney General for the State of Illinois, has recently brought another lawsuit against large financial institutions related to continuing foreclosure abuses that were supposed to have been eliminated by the prior lawsuit.

Property Management Company Abuses

Banks hire property management companies to maintain homes that have been left vacant by the homeowners. These property management companies first have to determine whether the home has been abandoned.

The largest property management company is called Safe Guard. The lawsuit brought by the Attorney General of Illinois claims Safe Guard breaks into homes which are occupied. When they break into homes they cause extensive damages and they improperly remove personal property. They also change the locks. They contact the utility companies and turn off the utilities. In addition, Attorney General Lisa Madigan claims, in her lawsuit, they force occupants into leaving their homes even though they have the legal right to stay. There are economic reasons for these property management companies acting improperly. It turns out the property management companies make more money taking care of vacant homes than dealing with homes that have not been abandoned. The reason for this is vacant homes that have been abandoned, by their homeowners, require more supervision. They need to be boarded up, locks need to be changed, the grass needs to be cut, the homes need to be secured against vagrants moving in, and they need to be looked after on a regular basis.

Illegal Eviction

Eviction involves a legal proceeding where a homeowner takes action through a court to remove a tenant. Even if a bank obtains title to a house in a foreclosure lawsuit it cannot send some men to the house to use strong arm tactics to force the homeowner to leave. The bank, if they want to obtain occupancy of the house, has to bring a landlord/tenant proceeding in a landlord/tenant court. Tenants have rights!

Banks must observe the rights of the occupants of homes. Even after a bank takes title to a home in a foreclosure case the former homeowner becomes a tenant and is subject to all types of tenants rights. Banks must observe these rights!

Elliot S. Schlissel is a foreclosure attorney. For more than 45 years he has represented homeowners in disputes with financial institutions. His office litigates matters against banks and other financial institutions throughout the metropolitan New York area.

Filed Under: Foreclosure, Foreclosure Defense

Refinancing Your Home

September 27, 2013 by Elliot S. Schlissel

The refinancing of a home involves the obtaining of a new mortgage to pay off an old mortgage. This is usually undertaken when you can secure better terms or a lower interest rate on the new mortgage. If you have built up equity in your home, you can refinance your home to pull some of the cash out. This can be done through a home equity loan or obtaining a line of credit to get cash out of the equity you have built up in your home. These funds can be used for home improvements, paying off credit card debts, funding college education for your children, and for other reasons.

Should You Refinance?

There are pros and cons for refinancing. You may get a better deal and lower interest rates, however, refinancing can destroy the equity you have built up in your home and create a new longer burden with regard to your mortgage payments. On the plus side, if you can refinance for a lower monthly interest rate, and minimize your closing costs, you may be able to put yourself in a better financial position on a month to month basis. Care should be taken upon refinancing to consider the long term impact on your life situation of undertaking this new indebtedness.

Elliot S. Schlissel and his associates are foreclosure defense attorneys. They have been assisting their clients regarding foreclosure and mortgage issues for more than 45 years.

Filed Under: Mortgage Modification Tagged With: New York foreclosure defense lawyers, refinancing

Mortgage Servicing Agencies’ Failure to Perform Their Duties

September 26, 2013 by Elliot S. Schlissel

The Consumer Financial Protection Bureau is the new agency that is supposed to regulate mortgage servicing companies. In a recent review of mortgage servicing companies this agency found some services to be “sloppy” when dealing with transferring paperwork when loans are sold. They also found misapplication of payments on mortgages and the failure of mortgage servicing companies to pay the taxes on the homeowners’ homes on a timely basis.

Homeowners Don’t Know Whom They Are Supposed To Pay

When the average homeowner purchases his or her home they take out a mortgage. Often shortly after they take out their mortgage the mortgage is sold by one lender to another. The second lender thereupon hires a mortgage servicing company to service the loan. Sometimes, a few months later, the second lender sells the mortgage to a third lender. This leaves the homeowner unsure of where, and to whom, they should pay their mortgage. This causes consumers consternation as to whether they are making their payments to the correct entity and if they are receiving the full credit for their payments.

Consumers Financially Injured By Mortgage Servicing Companies

Tax payments on real estate are usually due and owing in December. There have been mortgage servicing companies that have delayed making these payments until January. When a mortgage servicing company pays the taxes in the following year, the homeowner loses the important tax deduction for the mortgage payment in the prior year. This causes the homeowner to pay higher income taxes due to the loss of this tax deduction.

The Consumer Financial Protection Bureau has set up a new mandated set of rules financial servicing companies must comply with. These rules go in effect in January of 2014. The purpose of these rules is to deal with issues that have come up during the mortgage loan modification process which have been exposed under the HAMP program. The following are a list of some of the problems that have been uncovered by this agency concerning mortgage services:

Abnormally long application processes.
The lack of quality control standards and the supervising of underwriters.
The failure to send out denial notices to homeowners.
The failure to have written policies and procedures related to mortgages.
Disorganization and understaffing by mortgage servicing companies.

Mortgage Modifications

Many homeowners have been living with the panacea that they can obtain a mortgage modification for their home under the HAMP program only to find out that only a small number of the applicants get final approval of mortgage modifications. Hopefully this agency will deal with the numerous problems that exist today.

Elliot S. Schlissel, Esq. is a foreclosure attorney who has published more than fifty (50) articles related to foreclosure defense.

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

New York’s Backlog of Foreclosure Cases

Surging Foreclosures on Long Island

What Do You Need to Know Before Buying a Home?

JP Morgan $13 Billion Settlement for Bad Mortgage Practices

Appearance at a Foreclosure Settlement Conference Considered an “Informal Appearance” and not a Default by the Mortgagor

New Law Helps Homeowners: Part II

New Law Helps Homeowners: Part I

Foreclosure Abuse

Refinancing Your Home

Mortgage Servicing Agencies’ Failure to Perform Their Duties

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