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Elliot S. Schlissel is a foreclosure lawyer. He has helped hundreds of New Yorkers stay in their homes. He fights foreclosure lawsuits throughout the Metropolitan New York area and helps his clients obtain mortgage modifications. Elliot and his staff of attorneys can be reached 7 days a week. He and his associates can be reached by calling 516-561-6645 or 718-350-2802 or by sending an email to schlissel.law@att.net.
Foreclosure rates for both Nassau and Suffolk Counties, on Long Island, are the highest in New York State. Approximately 3% of the homes in Suffolk County are in foreclosure. In Nassau County, approximately 2 ½% of all homes are in foreclosure. There are more than 27,000 pending foreclosure cases in Nassau and Suffolk Counties.
The Housing Crisis
The housing crisis has hit Long Island homeowners harder than homeowners in other areas of the State. Superstorm Sandy contributed to this problem by devastating many homes on Long Island. Thomas DiNapoli, the Comptroller of New York State, recently stated “if you are on Long Island and you have a huge mortgage, based on a price that no longer was attainable, you could easily get ‘underwater’.” Underwater refers to homes which owe more money on their mortgages than the home is worth.
While in many other areas in New York State the foreclosure crisis is easing, it continues to get worse in both Nassau and Suffolk Counties. In January of 2015, the number of homes going into foreclosure in Nassau County jumped by almost 20%. Some of this increase in homes being foreclosed upon was related to the delayed impact of Superstorm Sandy, which hit Long Island in 2012, has had on homes going into foreclosure. In the State of New York, approximately 1 in every 90 homes is in foreclosure. While in Nassau County 1 out of every 40 homes are in foreclosure, and in Suffolk County 1 out of every 35 homes are in foreclosure. Comparing this to the foreclosure rate in New York City which has only 1 out of every 116 homes in foreclosure shows the huge problem faced by homeowners in Nassau and Suffolk Counties.
I have had numerous discussions with potential home buyers with regard to the pros and cons of owning a home. There are many substantial benefits but the foreclosure crisis in recent years is illustrative of some of the major drawbacks in owning a home.
According to Richard Green, a professor at the University of Southern California the following is a rule of thumb as to how much appreciation you will need to make the home a worthwhile investment vis a vis staying in an apartment and paying rent. Professor Green states that house values should not “have to go up more than 3% a year for you to break even.” Professor Green suggests that your home should not be your sole investment. He states “the idea that home ownership doesn’t carry a lot of risk with it is wrong.” “If you are in a mutual fund, with a long term prospective, it is probably going to grow faster than real estate values. Housing can be more volatile than you think (depending on location).”
Buy a Home and You are the Landlord
When you rent, if something breaks you can contact the landlord and/or his representative and request they make the repairs that are necessary. When you own a home, if something breaks, doesn’t function properly, or goes wrong, you are responsible. If you can’t fix it, you have to hire someone at your own expense to fix it. Maintenance costs in a home, generally, are more than most people anticipate. Before you buy a home you should have an engineer inspect the home and advise you whether the boiler, electrical system, roof, foundation or other aspects of the home are in good condition. You don’t want to buy a home and have it fall down shortly after you purchase it.
Elliot S. Schlissel is a foreclosure defense attorney. He helps homeowners in the Metropolitan New York area fight foreclosure lawsuits and obtain mortgage modifications.
A foreclosure action was brought by JP Morgan Chase in the Supreme Court of New York County. Justice Francois Rivera was the judge assigned to the case. Chase claimed in their pleadings that Charles had executed a mortgage and note on real property in favor of Fleet Real Estate Funding. They claimed Fleet Real Estate Funding had assigned the mortgage to JP Morgan Chase. They claimed Charles defaulted on making his payments on the note and mortgage, they had accelerated the note and mortgage and served the acceleration notice on Charles.
Charles’ Death
After Chase had commenced this lawsuit they ascertained that Charles had died. It should be noted Charles did not respond to any of the documents served upon him by Chase or the Summons and Complaint. That may have been related to the fact that he wasn’t alive!
Although Chase was aware that Charles had died, the moving papers submitted by them did not contain an original death certificate. The court was never made aware as to when Charles died. Judge Rivera advised Chase that when an individual to a lawsuit dies, the court is divested of jurisdiction to continue legal proceedings until an appropriate substitution is made. In addition, any court order rendered after the date of death of a party and before a legal representative is appointed to represent the deceased party would also be void.
Judge Rivera reached the conclusion since Chase had not submitted a death certificate, and they weren’t aware of the date of death, they could not determine if Charles was ever legally a party to this lawsuit. The court further stated if Charles died after the lawsuit was initiated, the action would be stayed under New York State law. In the end, Judge Rivera found that Chase could not have any relief at all until they resolved the issues concerning Charles’ death.
Conclusion
Dying is a defense to a foreclosure lawsuit! However, there are less painful defenses which can be established by hiring a foreclosure lawyer upon the initiation of legal proceedings against you.
To watch today’s video blog, please click on the link below:
Elliot Schlissel is a foreclosure defense lawyer helping homeowners stay in their homes throughout the Metropolitan New York area. He and his associates can be reached for consultation at 516-561-6645 or 718-350-2802 or send an email to schlissel.law@att.net.
Justice Debra Silber sitting in a Supreme Court foreclosure court in Kings County, New York recently had a case involving bad faith in negotiations by Deutsche Bank. In this case the defendant moved for, and was granted, an Order which confirmed a report of a special referee made at the foreclosure conference which found that Deutsche Bank had acted in bad faith in violation of New York Civil Practice Law and Rules section 3408(f).
Bad Faith by Bank
Justice Silber, in her decision, found the actions and inactions by Deutsche Bank clearly indicated an absence of good faith as was contemplated by the New York Statute. During a period of ten months the bank delayed the underwriting of husband’s mortgage modification application. The referee found Deutsche Bank’s failure to act during a 10 month period was a dilatory tactic. Justice Silber concluded the husband had sought to obtain a mortgage modification for a period of 6 months. He had made 18 appearances at foreclosure mediation conferences. In determining the appropriate sanction to punish Deutsche Bank for its failure to work with the defendant in this case regarding his mortgage modification application, the court decided to reduce the interest rate to 2% on the balance of the mortgage which accrued after August 1, 2010. This was the date Justice Silber deemed the bank should have approved the husband’s HAMP mortgage application. In addition, the bank and its loan servicer organization were barred from collecting attorney’s fees with regard to the foreclosure lawsuit which accrued after August 1, 2010.
Conclusion
If a bank fails to negotiate in good faith mortgage modifications at foreclosure court mediation conferences, there are remedies available to the homeowner.
Elliot S. Schlissel is a foreclosure attorney who litigates foreclosure cases. He seeks to keep homeowners in their homes.
Justice Francois Rivera, sitting in the Real Property Part in Supreme Court, Kings County, recently dismissed a foreclosure case brought by Loancare against Mr. Coleman.
The foreclosure lawsuit claimed Coleman had failed to make payments on the note and mortgage. It further claimed he took no action to cure the default. Coleman submitted an Answer which contained seventeen affirmative defenses. One of the affirmative defenses was that the bank lacked standing to bring this lawsuit.
Justice Rivera noted in his decision, before commencing a foreclosure lawsuit a plaintiff must have a legal or an equitable interest in the mortgage.
Transfer of the Mortgage
Coleman initially had given a mortgage to Lend America. Lend America executed and delivered the mortgage and note to Mortgage Electronic Registration Systems, Inc., (hereinafter referred to as “MERS”) as Lend America’s nominee.
When Loancare brought the lawsuit, they did not claim or prove that Lend America delivered the note to MERS. Therefore MERS was never the holder of the note. Since they didn’t have the note to begin with, they couldn’t assign it! Since MERS couldn’t assign it to Loancare, Loancare never became the holder of the note pursuant to a written assignment prior to initiating the foreclosure lawsuit. In addition, Justice Rivera pointed out in his decision Loancare did not allege the facts and circumstances as to who and which entity physically delivered the note.
Justice Rivera therefore decided Loancare did not establish a prima facie case that it was the holder and/or assignee of the note and mortgage. Justice Rivera therefore dismissed the lawsuit based on the fact the plaintiff had no standing to bring this foreclosure proceeding.
Conclusion
Submitting an appropriate Answer with numerous affirmative defenses and especially alleging lack of standing, is very important when responding to a foreclosure lawsuit. If Coleman had failed to allege lack of standing in his Answer, he would have waived this affirmative defense and Loancare would have been successful in obtaining a judgment of foreclosure and selling Coleman’s home.
Elliot S. Schlissel is a foreclosure attorney who helps homeowners fight foreclosure lawsuits and stay in their home.
Please click on the link below to watch today’s video blog:
Elliot S. Schlissel is a foreclosure defense lawyer in the Metropolitan New York area. He has been helping homeowners stay in the homes for more than 45 years. Elliot and his associates help their clients obtain mortgage modifications. Elliot can be reached for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.
The percentage of homeowners utilizing attorneys to appear on their behalf at mandatory foreclosure settlement conferences has been increasing. While legal representation of homeowners in foreclosure has been increasing, the number of cases being filed by banks to foreclose on homes is decreasing.
Caseloads Decreasing
In 2013, 46,700 cases were filed in New York State. Only 44,500 cases were filed in the State of New York during the 2014 calendar year. Foreclosure lawsuits are approximately 30% of all cases filed in the Supreme Courts in the State of New York.
The judiciary in the State of New York has a commitment to continue with foreclosure settlement conferences for the purpose of resolving foreclosure lawsuits without the need for further litigation. There are several reasons given for the reduction in foreclosure filings in New York State. Real estate prices have been going up, and less homes are underwater. In addition, the requirements to obtain new mortgages have been made more reasonable.
Specialized Court Parts and Court Programs Move Foreclosure Cases Faster Through New York Courts
There are a number of specialized court parts and court programs which have been established to ease the log jam of foreclosures in the courts in New York. In Nassau County there is a special court part which was established in 2013. In this part, banks can ask for expedited rulings in cases where the homeowners defaulted on the mortgages and didn’t appear in court or the homeowners had exhausted all settlement options. Up until now, about 800 cases have been resolved in this specialized part. In addition, Nassau County, Suffolk County and Bronx County have what are called servicer parts. In these parts, officials are authorized to approve mortgage modifications on the behalf of homeowners attending settlement conferences. A similar court part is envisioned to be brought into effect in Kings County and Queens County in the near future.
New Rules Concerning Foreclosures
Effective December 1, 2014, referees in foreclosure conference parts have the ability to consider alternatives such as loss litigation options involving loan modifications, deeds in lieu of foreclosure, and short sales. It is anticipated all these new activities will speed foreclosures through the court and assist homeowners in obtaining mortgage modifications.
Fannie Mae and Freddie Mac are now underwriting mortgages which only require a 3% down payment. These new 3% down payment mortgages are only available for first time home purchasers. Is this a good idea? It is thought that home ownership is the foundation in building equity and wealth. It is anticipated these new relaxed mortgage regulations will make it easier for middle class Americans to purchase homes.
The 3% Down Payment Mortgage
The purpose of the 3% mortgages is to make it affordable for young people who don’t have significant funds for down payments, but who have reasonable income, to enjoy the benefits of home ownership. It is also thought the 3% mortgage program will have an affirmative impact on the housing market in the United States.
Mortgage Safeguards
There are a number of safeguards which have been built into this new 3% mortgage program. The current credit requirements to obtain a mortgage shall remain the same. Individuals applying for these mortgages will have to document their income. Only fixed rate mortgages will be available with 3% down payments and the program will only be available for primary residences. It will also be necessary for the prospective home purchasers to have private mortgage insurance.
Historical Perspective of 3% Mortgages
Studies have shown the default rate on 3% mortgages, when they were available in the past, was about the same as the default rate for individuals taking 5% down payment mortgages. To make sure the 3% mortgages don’t become a springboard for another housing bubble, individuals seeking to take out 3% mortgage loans will be required to take a buyer counseling program.
Conclusion
3% mortgages are designed to make the benefits of home ownership available for more middle class families. However, the 3% mortgage program may be the springboard for future default by homeowners who didn’t have the financial wherewithal to actually purchase their dream home. Hopefully this will not spur another foreclosure crisis in America.
Elliot S. Schlissel is a foreclosure lawyer who has helped hundreds of New Yorkers continue to live in their homes.
