Foreclosure Defense Attorney in New York

Missing Mortgage Payments

April 26, 2023 by Elliot S. Schlissel

Homeowners who miss making mortgage payments may be facing the risk of being placed into foreclosure. A foreclosure, is a legal proceeding designed to effectuate the bank taking the house back from the homeowner and thereafter evicting the homeowner from their homes.

AVOIDING FORECLOSURE

The best way to deal with the foreclosure is to avoid it. Homeowners who are falling behind on their mortgage payments, should look into a forbearance agreement which involves delaying their mortgage payments. In addition, they can look into modifying their mortgage to make it less expensive in the short run to keep up with their mortgage payments.

LATE MORTGAGE PAYMENTS

In New York, home mortgage loans have a 15 day grace period regarding making mortgage payments. After the 15 day grace period, the homeowner may incur a late fee on the missed mortgage payment. In addition, missing mortgage payments late or making mortgage payments can have a negative impact on the homeowner’s credit rating.

MORTGAGE MODIFICATIONS

A mortgage modification is a means of restructuring the mortgage payments to avoid default and make the mortgage more affordable for the homeowners. If this is done, it has a minimal impact on any potential damage to the homeowner’s credit score. There are a number of different ways to modify a mortgage. Here’s a list of some of them:

You can seek to reduce the interest rate on your mortgage payment. ∙ You can temporarily pause making mortgage payments and have them made-up at a later point in time.
You can ask the bank to reduce the amount of your mortgage.
In cases where the homeowner has an adjustable rate mortgage, the homeowners can request the mortgage be changed into a fixed rate mortgage.

HOMEOWNERS BEING SERVED WITH A FORECLOSURE LAWSUIT

If the homeowner falls three months or more behind on their mortgage, the financial institution has the ability to accelerate the mortgage, which means call the entire mortgage due and owning and thereafter start a foreclosure lawsuit. A foreclosure lawsuit is usually started by a process server showing up at the homeowner’s home and serving them with the foreclosure lawsuit documents. If served with the foreclosure lawsuit set of documents, the homeowner will be shocked to find out how complicated and long the paperwork is. Foreclosure lawsuit legal documents can be anywhere from 100 to 500 pages long, including exhibits attached to the summons and complaint. What do you do if you get served with the foreclosure lawsuit? It is strongly suggested you immediately hire a foreclosure defense attorney.

The law office of Schlissel DeCorpo have been defending homeowners regarding mortgage issues for more than three decades. They can be reached at 516-561-6645, 718-350-2802, 631-319-8262 and 914-998-0080 or emailed at Elliot@sdnylaw.com.

Filed Under: Mortgage Modification Tagged With: AVOIDING FORECLOSURE

REVERSE MORTGAGES: ARE THEY A GOOD IDEA?

April 20, 2023 by Elliot S. Schlissel

Many Americans, as they reach their retirement years, find they have not saved enough money to pay all of their bills. One of the ways seniors can deal with their expenditures is to obtain a reverse mortgage. Reverse mortgages can make up for the fact that seniors do not have sufficient assets to cover their expenses during their period of retirement.

THE REVERSE MORTGAGE

A reverse mortgage is available to individuals who are 62 years of age and older. The way the reverse mortgage works is no repayments need to be made until the homeowners die or the home is sold. When the homeowners die, their beneficiaries have up to a year to refinance the home, buy it or sell the house. If the home is sold and the proceeds from the sale are greater than what is owed on the mortgage, the heirs of the decedent keep the balance of the proceeds in excess of what is owed.

HOW REVERSE MORTGAGES WORK

Seniors who take out reverse mortgage do not have to make mortgage loan payments during the rest of their lives. However, they have to pay for real estate taxes on the house, insurance on the house and they must maintain the premises in a good condition.

TYPES OF REVERSE MORTGAGES

There are three different ways a homeowner can receive funds from the reverse mortgage. The first is in a lump sum payment. The second is a line of credit which they can draw on whenever they need money to pay bills. The third is called the stream of income. Set amount of payments on a monthly basis are sent to the homeowner. When a reverse mortgage is taken out, if there is an existing mortgage on the property, the funds from the reverse mortgage must first be used to pay off the existing mortgage, and then the balance of the funds becomes usable money for the homeowners as part of the reverse mortgage.

USES FOR REVERSE MORTGAGES

Families who have homes with significant equity in them can take out a reverse mortgage and use the equity to subsidize their lifestyle or to provide a cushion which can help them deal with unexpected expenses.

REVERSE MORTAGE FORECLOSURE

A reverse mortgage foreclosure can be brought by the financial institution if the homeowner doesn’t pay the taxes on the house, maintain the premises or pay the insurance on the house. In addition, the financial institution, if they are not paid off within a year of the homeowner’s death, can initiate a foreclosure lawsuit.

Filed Under: Reverse Mortgages Tagged With: REVERSE MORTGAGES: ARE THEY A GOOD IDEA?

HIRING A FORECLOSURE DEFENSE ATTORNEY

April 13, 2023 by Elliot S. Schlissel

A family’s home is usually their single largest asset. Homeowners whose homes are taken back by the financial institution usually have their credit negatively impacted upon. This often will prevent them from being able to purchase another home in the near future. This means the former homeowners will be living in apartments for a considerable period of time.

FORECLOSURE DEFENSES

There are many different potential defenses to a foreclosure lawsuit. There are consumer protection laws, there are law’s regulating financial institutions. There are both federal, state, and local rules which financial institutions need to follow and many other statutory and case law defenses which have been developed over the years.

The legal process involving filing documents with the court and making effective legal arguments is quite complicated. The financial institutions hire very experienced foreclosure attorneys who have usually handled thousands of these types of cases. This gives the financial institutions, which have unlimited funds to hire lawyers, a distinct advantage if a homeowner seeks to represent themselves.

Individuals who are in the military are subject to additional rights and protections to avoid losing their homes in foreclosure.

LOAN MODIFICATIONS

A homeowner can apply on their own for a loan modification. However, loan modifications brought under the supervision of a judge can put pressure on the financial institution to be more reasonable with the homeowner.

BANKRUPTCY

Filing either a Chapter 7 or Chapter 13 bankruptcy in the United States Bankruptcy Court is another alternative which should can be taken into consideration by a homeowner. Whether to litigate in the state court in New York or in the federal court involves questions concerning financial circumstances, the homeowner’s ability to make payments, the current financial situation of the homeowner, the quality of their employment, and various other issues.

Filed Under: Foreclosure Defense Tagged With: HIRING A FORECLOSURE DEFENSE ATTORNEY

NEW YORK STATE LEGISLATURE MAKES IT MORE DIFFICULT FOR BANKS TO SUCCESSFULLY FORECLOSE.

April 3, 2023 by Elliot S. Schlissel

Mortgage foreclosure lawsuits in the state of New York have been made more difficult, by actions of the state legislature. In addition to foreclosure lawsuits becoming more difficult, they’re taking longer and longer to get through the courts. There are more reasons or grounds that foreclosure defense lawyers can use to have foreclosure lawsuits dismissed.

STATUTE OF LIMITATIONS

Financial institutions have six years from the time the mortgage is accelerated to bring a foreclosure case. The acceleration of the mortgage starts when the bank calls the entire mortgage due and owing. In the event, the financial institution and/or their lawyers did not move forward with the foreclosure lawsuit within six years of the acceleration of the mortgage the case can be dismissed for violation of the statute of limitations regarding a mortgage default. The violation of statute of limitations simply makes the mortgage unenforceable.

If a lender brings a foreclosure lawsuit and then for one reason or another it is discontinued, this does not stop the acceleration of the mortgage from continuing to run. Even if the foreclosure is dismissed by the court, it does not necessarily stop the six year statute of limitation from running.

DISCONTINUING THE LAWSUIT
THE SAVING GRACE FOR BANKS

There is a section of the New York Civil Practice Law and Rules, Section 205 which is the saving grace for banks that discontinue a lawsuit or have a lawsuit dismissed. This section states if the foreclosure action has been dismissed, at which time the statute of limitations has expired, there is a limited authority which allows an action to be reinstituted. If the lawsuit was originally commenced on a timely basis, but later terminated, the financial institution is permitted to commence a new lawsuit upon the same facts and circumstances within six months after the termination of the original lawsuit.

The dismissal of a foreclosure lawsuit and preventing it from being brought again is a complicated process. Should you think you have the possibility of a statute of limitations defense the best way to deal with any questions regarding this issue would be to contact an experienced foreclosure defense lawyer.

Filed Under: Foreclosure Tagged With: statute of limitations

Pre-Foreclosure Notice

June 3, 2022 by Elliot S. Schlissel

New York Real Property Actions and Proceedings Law Section 1304 requires lenders and servicing companies who want to bring a legal action regarding a mortgage on a residential home in the State of New York must provide 90 days written notice to the borrower regarding the home loan foreclosure before starting legal action. The notice needs to be mailed to the homeowner by regular mayor and certified mail.

90 Day Notice To Homeowners Required

Homeowners challenge the compliance with a statute on a regular basis. It is a complete defense to the foreclosure lawsuit that the homeowner was not properly served the requisite notice under Real Property Actions and Proceedings Law Section 1304.The mailing of this notice is considered a condition precedent to the initiation of the foreclosure lawsuit. The financial institution or servicing company must be in a position to provide an affidavit of service of the mailing of the pre-foreclosure notice.

There have been numerous decisions by the Supreme Court Judges and the Appellate Courts dismissing cases for the slightest mistake or deviation that the financial institution, its services and its attorneys have made with regard to failing to fulfill the strict compliance with the terms of this 90 day pre-foreclosure mailing.

Elliot S. Schlissel and his law office has been protecting homeowners in foreclosure cases for more than 3 decades. He can be reached at elliot@sdnylaw.com and 800-344-6431.

Filed Under: Foreclosure Tagged With: Pre-Foreclosure Notice

90 Day Notice Requirement Not Complied With

May 4, 2022 by Elliot S. Schlissel

The plaintiff in this case, a financial institution, had appealed an order denying it summary judgment of foreclosure. A summary judgment motion is a motion that states there is no question of fact and the financial institution should be entitled to enter a judgment of foreclosure and sale without taking the case to trial. As stated earlier, the bank lost this motion and they appealed the loss of the motion. The appeal went to the Appellate Division of the 2nd Department.

The Issue On Appeal

The issue with regard to the appeal was Real Property Actions and Proceedings Law Section 1304 (2) This section requires a homeowner receive 90 days notice prior to the initiation of a foreclosure lawsuit. The Appellate Court found the “notice required by this section shall be sent…in a separate envelope from any other mailing or notice.” This was a strict interpretation of the statute.

The Bank’s Problem

The bank in this case acknowledged the envelope it had sent to the homeowner’s contained the required notice under Real Property Actions and Proceeding Laws Section 1304 but it also included other information in 2 separate and distinct notices. The Appeals Courts ruled the bank did not comply with Real Property Actions and Proceedings Law Section 1304.The appeals court found the bank had not strictly complied with the requirements of this section of the law. Therefore the bank failed to satisfy a condition precedent before it could bring its foreclosure lawsuit. The court went on to hold this strict approach precluding any additional materials to be contained in the same envelope with the notice required under Real Property Actions and Proceedings Law 1304 “promotes stability and predictability.” in foreclosure cases. The decision of the lower court ruling against summary judgment for the plaintiff and dismissing the lawsuit was sustained.

Conclusion

Is the purpose of the 90 day notice under Real Property Actions and Proceedings Law Section 1304 is to give the homeowner’s specific notice they are in default on their mortgage and that they have 90 days to cure the default or a foreclosure lawsuit will be initiated against them to take back the house. This strict interpretation of this section by the appeals courts is designed to clarify to the homeowner the serious nature of this notice and the need to deal with being behind on their mortgage payments prior to the foreclosure lawsuit starting after 90 days.

Elliot S. Schlissel is a foreclosure defenses lawyer who has been helping homeowners form more than 3 decades. He can be reached at elliot@sdnylaw.com or 516-561-6645, 718-350-2802, 631-319-8262.

Filed Under: Foreclosure Tagged With: Judgment of foreclosure and sale

90 Day Foreclosure Notice

April 19, 2022 by Elliot S. Schlissel

Mr. Yapkowitz and his wife both defaulted on making mortgage loan payments. At that time the servicing company handling the loan payments sent them a 30 day notice of default. This took place on January 22, 2009. In February 2010, the were notified the loan servicing was transferred went to NationStar Mortgage LLC. The mortgage was then assigned to Wells Fargo Bank in April of 2013. There was a denial of a motion for Summary Judgment (to obtain a judgment of foreclosure and sale without needing to go for trial) in July of 2018. An issue was raised by the decision of the Supreme Court with regard to whether each of the homeowner’s must receive a 90 day notice separately from the other borrower.

The Law In New York

New York Real Property Actions and Proceeding Law Section 1304 requires the mailing of a 90 pre-foreclosure notice to the individuals facing foreclosure. In this case the notice to the individuals was jointly addressed to them.

The appeals court affirmed a judgment in the homeowners favor dismissing Wells Fargo’s foreclosure lawsuit. The Appeals Court in the Second Department ruled to strictly comply with real property actions and proceedings law section 1304 in a foreclosure lawsuit plaintiff must mail a 90 day notice addressed to each borrower in separate envelopes as a precondition to commencing the foreclosure case. Wells Fargo, in this case, had jointly addressed the borrowers with a 90 day notice. This did not comply with the statute and this was the reason for the dismissal of the case.

Conclusion

All of the terms of New York Real Property Actions and Proceedings Law Section 1304 regarding pre-foreclosure notice to the homeowner’s must be strictly complied with. If the statute is not strictly complied with, the foreclosure lawsuit can be dismissed.

Elliot S. Schlissel is a foreclosure defenses lawyer who has been helping homeowners form more than 3 decades. He can be reached at elliot@sdnylaw.com or 516-561-6645, 718-350-2802, 631-319-8262.

Filed Under: Uncategorized

$539 million dollars for The American Rescue Plan Act

January 3, 2022 by Elliot S. Schlissel

$539 million dollars has been appropriated pursuant to an act of Congress for New Yorker’s who are in foreclosure or behind on their mortgages. New York State has received a block grant of $539 million dollars from the federal government. These funds are to be distributed to homeowner’s who are behind on their mortgage or their property taxes or are behind in other housing related expenses. Homeowners who qualify can receive up to $50,000 from the New York recently approved Homeowner’s Assistance Fund. This is not a loan. This is a grant. These fund were appropriated by the federal government to assist homeowners in each state that had fallen behind on expenses related to their mortgages. New York States share of this fund was $539 million.

The American Rescue Plan Act

The 539 million dollars allocated by the federal government to the State of New York was part of the American Rescue Plan Act. Homeowner’s who seek to receive the fund under this federal program must have experienced a financial hardship related to the covid 19 pandemic. New York Governor Hochel is in charge of the program to distribute these funds.

The following is a list of the documents that will be necessary to submit to the portal created by New York State for homeowners’ to qualify to receive up to $50,000 from the New York State homeowner assistance fund:

Proof of Ownership

Copy of your deed, property tax bill, co-op statement, mortgage statement or homeowner’s insurance policy.

Proof of Identity

Copy of passport, social security card, drivers license, Military ID or naturalization card.

Income Documentation

From all adult members of the household: tax returns, two most recent paychecks/paystubs or 1099 forms.

In the event you receive income based benefits such as SNAP, HEAP, public assistance or section 8 you will need to provide documentation of this.

Proof of Delinquency

In addition to all the above-referenced items, you will need proof of your delinquency on making your current housing payments. The State requires a mortgage statement showing a default or a delinquency notice on co-op/condo charges. If your property taxes are behind, you need to show the amount that is past due on a delinquent tax notice.

This program is estimated to be opening for applications on January 3, 2022 on a first come, first serve basis. This means when the fund is used up, and the 539 million is spent everybody who applies after these funds are spent will be closed out.

My office will be available to help homeowners apply for funds under this program.

Elliot S. Schlissel, his partner and their associates have been helping homeowners deal with foreclosure related issues for more than 3 decades. He can be reached at elliot@sdnylaw.com or at 516-561-6645.

Filed Under: Mortgages Tagged With: The American Rescue Plan Act

Information in the Emergency Eviction and Foreclosure Prevention Act

December 29, 2021 by Elliot S. Schlissel

The covid-19 Emergency Eviction and Foreclosure Prevention Act created a standardized hardship declaration form which tenants can submit to their landlord to prevent and halt an eviction if they have a financial hardship related to or during covid-19 that prevents them from being able to pay their rent. In addition they can qualify if someone in their household is at an increased risk of illness due to covid-19.

The form gives tenants the ability to declare a financial hardship if they have lost income. In addition if they have increased healthcare, childcare or other family expenses, they can also declare a hardship. In the event they have been unable to obtain meaningful employment because of circumstances related to covid-19 they also can qualify. Funds also be allocated to help them with moving expenses.

A tenant who obtains a copy of the standardized hardship declaration form should return it to their landlord or to the court to prevent a landlord from filing an eviction. This can be used to suspend an eviction proceeding already underway until May of 2022.

Protection Against Foreclosure and Tax Lien Sales
for Residential Property Owners

The statute also gives homeowners protections against a foreclosure sale of their home and tax lien sale of their home. This applies to residential property that involves 10 or fewer apartment units. The residential property must include the individuals primary place of residence.

Property owners will be able to obtain protection from foreclosure and tax lien sales of their homes by filing a standardized hardship declaration form with their mortgage lender or with the court. The property owners must declare in this form under penalties of perjury that they have a financial hardship. In addition, they must allege this financial hardship prevents them from paying their mortgage or property taxes related to lost income. This includes reduction in rent collections, increased expenses or their inability to obtain meaningful employment. Landlords with 10 or more rental units are excluded from these protections.

Negative Reporting and Discrimination Extending Credit

The law protects a property owner from credit discrimination too if they are behind on their mortgage payments or they have received a stay of mortgage foreclosure sale, tax foreclosure or tax lien sale on their property.

The hardship declaration can also be used to avoid credit discrimination based on mortgage arrears on the property in which they reside. This statute gives new protection to single family residences, co-ops, owner occupied multifamily primary residences and primary residences. This legislation will also forbids negative reporting to any credit agency related to a mortgage foreclosure proceeding or tax foreclosure proceedings.

Elliot Schlissel, his partner and his associates help homeowners facing foreclosure, bankruptcy or facing financial difficulties . They can be reached at 800-344-6431 or by email at info@sdnylaw.com

Filed Under: Foreclosure Defense Tagged With: Foreclosure Prevention Act

Who Is Eligible for the $539 Million Dollars Homeowners Assistance Program?

December 24, 2021 by Elliot S. Schlissel

There is approximately $539 million dollars allocated from federal funds to assist homeowners facing foreclosure and other financial issues. There are specific requirements regarding who is eligible for these funds. Homeowners who earn less than the average median income which is approximately $107,400 for a family of 3 are eligible to participate in this program. In addition, homeowners who earn less than 150% of the area median income and meets the federal requirements of “socially disadvantaged” which includes “those who have been subjected to racial or ethnic prejudice”.

In addition to the aforementioned requirements, to qualify homeowners will have to demonstrate some kind of financial hardship. Examples of financial hardships could be loss of income or added expenses that have been caused or are related to the covid-19 pandemic. The individuals who seek aid must actually live in the home that they seek the money for. The home must be their primary residence. The primary residence can be single family homes, condos, co-ops , mobile homes or 2-4 family homes.

Three Options

There are three different options within the Homeowners Assistance Program. The first option is for homeowners with a mortgage who are ending forbearance agreements and homeowners who didn’t go into forbearance and are behind on their mortgage payments. Financial relief is available to these homeowners in a five year forgivable loan for an amount of money needed to modify the mortgage in a way that can allow the homeowner to better afford going forward. Homeowners under option one can receive up to $50,000.

Option 2 is for homeowners who don’t have a mortgage but are behind on expenses such as property taxes, water bills, insurance or condo or co-op fees. The relief is a five year forgivable loan for the amount of the debt that is owed. The amount of the forgivable loan is capped at $50,000.

The third option is in addition to one of the first two options. This is for homeowners who are unemployed or who are unable to keep up with the costs of maintaining their housing. For homeowners to qualify for the third option they must be making less than 30% of the area median income before the pandemic. For a homeowner to qualify for the third option, they can receive up tp six months of future housing payments to stay afloat as the economy recovers. These six payments are in addition to the other relief and will be funded through a different group of federal funds called the Community Development Block Grants.

Portals are in the process of being developed according to the Department of Homes and Community Renewal. This will allow homeowners to apply online or over the phone through a housing counselor.

The law office of Schlissel Decorpo, LLP is available to help homeowners facing foreclosure, in foreclosure and facing other financial problems that have put their homes at risk of being lost. We can be reached at 800-344-6431 or by email at info@sdnylaw.com

Filed Under: Foreclosure Tagged With: Homeowners Assistance Program

AVOIDING FORECLOSURE

LATE MORTGAGE PAYMENTS

MORTGAGE MODIFICATIONS

HOMEOWNERS BEING SERVED WITH A FORECLOSURE LAWSUIT

THE REVERSE MORTGAGE

HOW REVERSE MORTGAGES WORK

TYPES OF REVERSE MORTGAGES

USES FOR REVERSE MORTGAGES

REVERSE MORTAGE FORECLOSURE

FORECLOSURE DEFENSES

LOAN MODIFICATIONS

BANKRUPTCY

STATUTE OF LIMITATIONS

DISCONTINUING THE LAWSUIT THE SAVING GRACE FOR BANKS

90 Day Notice To Homeowners Required

The Issue On Appeal

The Bank’s Problem

Conclusion

The Law In New York

Conclusion

The American Rescue Plan Act

Proof of Ownership

Proof of Identity

Income Documentation

Proof of Delinquency

Protection Against Foreclosure and Tax Lien Sales for Residential Property Owners

Negative Reporting and Discrimination Extending Credit

Three Options

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DISCONTINUING THE LAWSUIT
THE SAVING GRACE FOR BANKS

Protection Against Foreclosure and Tax Lien Sales
for Residential Property Owners