Blogs | Foreclosure Defense

Lack of Standing Defense Waived

February 17, 2020 by Elliot Schlissel

The issue of standing in a foreclosure lawsuit is a basic issue. The affirmative defense of lack of standing basically says that the financial institution bringing the lawsuit does not have authority to bring this lawsuit.

The Nielsons

In May 2009 the Nielsons’ defaulted on making payments on a $660,000.00 loan to the New York bank’s predecessor. This loan was secured by property located in Kings County.

The Mortgage Assignment

In September 2009 pursuant to a mortgage assignment, U.S. Bank brought a foreclosure lawsuit in Supreme Court in Kings County. A decision was made by the trial judge granting summary judgment and foreclosure and sale to U.S. Bank.

The Appeal

The Nielsons brought an appeal challenging the trial court’s decision granting U.S. Bank summary judgment. The Appeals Court (the Second Department in New York) held that a defendant in a foreclosure lawsuit must submit an affirmative defense as part of their pleadings alleging lack of standing. The failure of the Nielson’s to allege this affirmative defense amounted to a waiver of that affirmative defense. Therefore, the trial court’s granting the motion for summary judgment for U.S. Bank was upheld.

Conclusion

Every answer in a foreclosure lawsuit should contain the affirmative defense of lack of standing. Until discovery proceedings are effectuated by the attorney for the homeowner, the homeowner will not be sufficiently knowledgeable as to whether the financial institution bringing the foreclosure lawsuit has actual standing to bring the foreclosure lawsuit.

Elliot S. Schlissel, Esq. is a foreclosure defense lawyer representing homeowners throughout the Metropolitan New York area for more than 3 decades. He can be reached for a free consultation at 800-344-6431 or you can contact me by e-mail at Elliot@sdnylaw.com.

Filed Under: Foreclosure Defense, Mortgages Tagged With: Financial Institution, Loan

Homeowner Successful In Showing Bank Had No Standing to Bring A Foreclosure Lawsuit

December 30, 2019 by Elliot Schlissel

Beneficial Homeowners Services Corp. had provided a loan to Carpenter when he bought his home. They claimed with regard to the loan Carpenter had signed a promissory note and said note was secured by a mortgage on his house.

Carpenter failed to make his mortgage payments. This caused Beneficial to start a foreclosure lawsuit. In the foreclosure lawsuit Carpenter alleged various affirmative defenses. One of those affirmative defenses was that Beneficial lacked standing to bring the lawsuit.

The Summary Judgment Application

Beneficial brought a motion for summary judgment. They alleged in this motion there was no question of fact that Carpenter took out a loan, signed the note and they held a mortgage on his property. Therefore they should be entitled to a judgment of foreclosure. This was the second time they had brought the same motion.

Bank Not The Correct Party

Carpenter alleged as a defense the bank was not the appropriate party to bring the lawsuit. The formal defense in legal terms was the bank lacked standing to bring the foreclosure action.

The Standing Party

Justice Robert Muller who sits in Clendon County, in upstate New York, ruled that Beneficial failed to establish standing as a matter of law. They had submitted a power of attorney whereby an assignee Caliber was authorized to act as attorney in fact for Beneficial. However, Justice Muller found the alleged power of attorney was insufficient to establish Beneficial had standing to prosecute the alleged default by Carpenter. Judge Muller pointed out the affidavit submitted by Beneficial did not clarify how Wells Fargo Bank came to act as a custodian for the note. Judge Muller also pointed out Beneficial failed to provide documentation of the alleged relationship between Caliber and Beneficial. This was the basis for Judge Muller to deny the plaintiff’s application for summary judgment.

Elliot S. Schlissel, Esq. is a foreclosure lawyer who represents clients throughout the Metropolitan New York area in foreclosure matters and bankruptcies. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com. His office offers free consultations to individuals who have foreclosure related issues.

Filed Under: Foreclosure, Mortgages Tagged With: foreclosure lawsuit

Happy New Year 2020

December 23, 2019 by Elliot Schlissel

To a joyful present and a well-remembered past. Best wishes for happy holidays and a magnificent new year.

Filed Under: Uncategorized

Homeowners Motions in Foreclosure Lawsuits

September 26, 2019 by Elliot Schlissel

A homeowner can make a motion to dismiss the bank’s lawsuit in a foreclosure case based on a jurisdictional basis or the fact that there are meritorious defenses to the complaint submitted by the bank. Examples of a basis for dismissing the lawsuit brought by the financial institution are: lack of standing, failure to obtain proper service on the defendants, violation of the statute of limitations, fraud in the inducement and various other defenses and affirmative defenses available to homeowners.

Cost of Foreclosure Litigation

Banks and financial institutions are worth billions of dollars. Homeowners, who work for a living, have limited financial assets to engage in sophisticated litigation with financial institutions. The financial institutions bringing the foreclosure lawsuit are spending money belonging to their shareholders. On the other side of the situation, the homeowner is putting his hands in his own pocket to fight the foreclosure lawsuit. It is therefore important for the attorneys for the homeowners to maximize the impact of their legal action and litigate the matter in the most cost efficient means. It should be pointed out, in my experience, bank’s are often prepared to spend more than $25,000.00 bringing motions to obtain a foreclosure judgment against homeowners to cause their home to be sold. This puts a heavy financial burden on the homeowner to defend against these motions.

Conclusion

There is a process during the litigation of a foreclosure lawsuit where each party can make motions asking the Judge prior to a trial to grant them relief. The bank asks for relief in a motion for summary judgment and/or judgment of foreclosure and sale and the homeowner usually brings a motion to dismiss the litigation. If you are facing foreclosure, the best way to deal with all of the issues and problems is to hire an experienced dedicated foreclosure attorney.

Elliot 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 45 years. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Filed Under: Foreclosure Tagged With: foreclosure

The Discovery Process in Foreclosure Lawsuits

September 25, 2019 by Elliot Schlissel

There are various strategies that can be utilized by attorneys for homeowners in foreclosure lawsuits. During the course of the foreclosure lawsuit after the summons and complaint are served on the homeowner and an answer is interposed when the case is released from the mandatory foreclosure conference part the parties can engage in discovery. The discovery portion of the case is a period of time where the parties to the litigation can obtain documents and other types of information from the other side. In most foreclosure lawsuits all of the documents and relevant information regarding the foreclosure case are in the hands of the lender. The homeowner can make demands on the financial institution to provide information and documents during the discovery process to develop defenses to the foreclosure lawsuit. The attorneys for the homeowner can accomplish this by serving extensive discovery demands on the financial institution’s attorneys. The purpose of these extensive demands is to help develop the homeowner’s defense to the foreclosure lawsuit.

Compliance to Discovery Demands

Unfortunately, most financial institution’s attorneys do not usually comply with the discovery demands. Sometimes they completely disregard the discovery demands and bring a summary judgment motion. They take this action because they will have difficulty into fully complying with the detailed discovery demands made by a qualified foreclosure defense lawyer. The failure of the financial institution to comply with the discovery demands can amount to another defense to the foreclosure lawsuit.

Motion to Compel Discovery

If the financial institution does not respond to discovery demands counsel for the defendant can make a motion to compel discovery. In most situations the financial institution’s attorneys do not completely ignore the discovery demands. Instead they comply with some of the requests and don’t reply to other aspects of the request. They make numerous detailed objections to the discovery demands. These objections basically are designed to avoid their having to respond to these discovery demands. In these case the attorneys for the homeowner can bring a motion but in this motion the homeowner’s attorney must show that the financial institution’s attorneys objections to the discovery demand lack merit.

The Bank Making Discovery Demands

The financial institution can make discovery demands upon the homeowner’s attorney too. However, the purpose of these discovery demands is usually not to obtain relevant information. The bank usually has all the information they need to proceed with their foreclosure case. The purpose of the discovery demand is to create difficult burden on the homeowner’s attorneys. The discovery demands can be very time consuming to respond to. While the financial institution’s attorneys are dealing with an institution that has billions of dollars in assets, homeowners have very limited assets to litigate against financial institutions. The serving of burdensome discovery demands by the financial institution is usually designed to set up a defense mechanism if the homeowner can’t completely respond to these demands when the homeowner claims that the financial institution is not in full compliance with the homeowner’s attorney’s discovery demands. It should be pointed out that trials on foreclosure cases are extremely rare. Approximately 98% of all foreclosure cases are resolved during the litigation motion process.

Elliot S. Schlissel, Esq. is a foreclosure defense lawyer. He has been representing homeowners for more than 45 years. Elliot is the managing partner of Schlissel DeCorpo LLP, a widely known foreclosure defense law firm. They can be reached for a free consultation at 800-344-6431 or Elliot can be e-mailed at Elliot@sdnylaw.com.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: foreclosure lawsuits

Understanding Foreclosures

September 23, 2019 by Elliot Schlissel

The term foreclosure refers to a lawsuit brought, usually by a financial institution, against a homeowner. The legal proceeding is brought in the Supreme Court of the County in which the property is located. The financial institution is always represented by a law firm. The law firm is not an in-house law firm. It is always a law firm hired by the financial institution that specializes in bringing foreclosure actions against homeowners.

Judgment to Sell the House

The purpose of the foreclosure lawsuit is for the financial institution to obtain an judgment from a Supreme Court judge. This will allow the financial institution to have a referee appointed to sell the homeowner’s home at a public auction. The money received from the sale of the homeowner’s home goes to the financial institution to pay them what they are owed on the note and mortgage.

The Note and Mortgage

There are 2 documents of importance in a foreclosure. The first one is the note. When you buy a home you sign a note. The note is simply an IOU. The note is an agreement that basically states the financial institution is loaning you money and you agree to pay it back. There are various terms and obligations maintained in the paperwork regarding the note.

The Mortgage

The mortgage is a separate document from the note. It is actually a separate contract. It is a security agreement which gives the financial institution a security interest in your property as collateral for the money you borrowed pursuant to the note. The mortgage states if you don’t make the payments pursuant to the terms of the note and mortgage, the financial institution can bring a foreclosure lawsuit for failure to make the payments.

The Acceleration of the Mortgage

Before a financial institution can bring a foreclosure lawsuit against a homeowner they must send an Acceleration Letter to the homeowner. The letter simply states that the lender is calling the entire amount of the mortgage and all the arrears due and payable by a specific date.

Default in Making Payments

A homeowner is generally considered to have defaulted in the payment of his or her mortgage when they are at least one payment late. However, Acceleration Letters are generally not sent to homeowners until they are 90 days behind on the payment of their mortgage.

90 Day Pre-Foreclosure Filing Notice

The law in New York has a special requirement before a foreclosure lawsuit can be initiated. The financial institution must send the homeowner notice a minimum of 90 days before they file a summons and complaint in a foreclosure lawsuit. The notice has specific language and states at least 5 non-profit housing counseling agencies located near the borrower that the borrower can go to. The notice conveys to the homeowner they are behind in their mortgage and they are going into foreclosure. The homeowner then has 90 days to try to take some action to avoid the foreclosure lawsuit.

Elliot S. Schlissel, Esq. is the managing partner of Schlissel DeCorpo LLP. Our law firm represents homeowners throughout the Metropolitan New York area with regard to the defense of foreclosure lawsuits. We have been helping homeowners keep their homes for more than 3 decades. We can be reached for a free consultation at 800-344-6431 or e-mailed at: Elliot@sdnylaw.com.

Filed Under: Foreclosure Tagged With: forclosure defense attorneys

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

September 20, 2019 by Elliot Schlissel

In 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.

Elliot S. Schlissel, Esq. is a foreclosure attorney. He has been representing homeowners in foreclosure cases throughout the Metropolitan New York area for more than 45 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.

Filed Under: Mortgage Modification, Mortgages Tagged With: mortgages

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

September 18, 2019 by Elliot Schlissel

A 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.

Elliot 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.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: foreclosed property, Surplus Money Issues

Mortgage Modifications

September 16, 2019 by Elliot Schlissel

As 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.

Elliot 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.

Filed Under: Mortgage Modification Tagged With: mortgage modification, mortgage modification attorneys

Issues Concerning Notice of Foreclosure Mailing

September 9, 2019 by Elliot Schlissel

In 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.

Elliot S. Schlissel, Esq. is a foreclosure lawyer. He has been defending homeowners throughout the Metropolitan New York area for more than 45 years. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Filed Under: Foreclosure, Mortgages Tagged With: Foreclosure Mailing, Property, Real Property Actions

The Nielsons

The Mortgage Assignment

The Appeal

Conclusion

The Summary Judgment Application

Bank Not The Correct Party

The Standing Party

Cost of Foreclosure Litigation

Conclusion

Compliance to Discovery Demands

Motion to Compel Discovery

The Bank Making Discovery Demands

Judgment to Sell the House

The Note and Mortgage

The Mortgage

The Acceleration of the Mortgage

Default in Making Payments

90 Day Pre-Foreclosure Filing Notice

Summary Judgment

Acceleration of the Mortgage

The Lease

The Referee’s Position

The Judge’s Decision

Conclusion

The Modification

The Homeowner’s Defense

Conclusion

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