Foreclosure

Foreclosure, What Does It Mean? – Part 2

November 22, 2023 by Elliot Schlissel

The Homeowner’s Response

Upon being served with the summons and complaint, regarding notice of the foreclosure lawsuit, in the event you wish to keep your home and contest the foreclosure lawsuit, you need to file a verified answer. This is a response to the summons and complaint, and it will outline any defenses you have to the lawsuit. Be advised if you do not file an answer or you simply fail to respond the court will rule in the case that you have defaulted and the lawsuit will go faster and you’ll lose your home more quickly.

Foreclosure Settlement Conference

Usually within 60 days after your lender initiates the foreclosure lawsuit the Supreme Court in the county where the house is located will schedule a legally mandated foreclosure settlement conference. The purpose of this conference is to see if there’s a way to resolve the foreclosure lawsuit without the homeowners being forced from their home. At the foreclosure settlement conference, issues such as mortgage modifications, forbearance agreements, short sales and other issues will be discussed.

The Discovery Phase

If you put submit a written answer in the foreclosure lawsuit and you contest it, a period begins called the discovery phase of lawsuit. During this time, both you and your lender can request pertinent information and documents from the other side to prepare your respective arguments during motion practice or trial.

Motion For Summary Judgment

In most cases, the financial institution will file a motion for summary judgment. This is a motion by the bank’s lawyers, which asks the court to issue a judgment of foreclosure based solely on the evidence presented in writing. They will claim a trial is not necessary because the case is so one sided. For a homeowner to be successful in defeating the motion for summary judgment, the homeowner simply needs to show there is some issue that should be dealt with at trial. Any issue which is not 100% clearly in the bank’s favor will be the basis for the for the judge to deny the bank’s application for summary judgment motion.

Judgment of Foreclosure and Sale

If the judge rules on the summary judgment motion in favor of the bank, the Court will issue a final judgment of foreclosure and sale and an order to auction off your home. If there is an auction order given, a referee will be appointed, who will sell your home on the Supreme Court steps or in a courtroom in the Supreme Court on rainy days.

Can I Stop A Foreclosure From Moving Forward?

Yes! There are numerous defenses, affirmative defenses, counterclaims and other legal actions which can be taken to stop foreclosures from moving forward and tie up the case in court from three to seven years. The banks have experienced law firms representing them. The best way to you protect your investment in your home and your ability to continue to live in your home with your family is to hire an experienced foreclosure 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.

Foreclosure, What Does It Mean? – Part 1

November 14, 2023 by Elliot S. Schlissel

Foreclosure is the initiation of a lawsuit for the rights to ownership of the property. It seeks to remove from the owners from living in the property and having the property sold at auction to satisfy an unpaid mortgage on the property. The foreclosure process can be initiated by the financial institution’s attorneys as they have a vested interest home which has been used as collateral for the loans.

Start Of The Foreclosure Process

The foreclosure process begins after the homeowner’s default, which technically occurs when they have missed mortgage payments on their home mortgage loan. The number of payments a homeowner can miss before a default notice is sent depends on the financial institution and its policies with regard to defaulted loans. Generally speaking, if you are three months behind on your mortgage payments, your house can be placed into foreclosure.

Missing a Payment – What Should You Do?

If you miss one payment your mortgage company will generally allow you a grace period of up to 15 days during which time you can pay that amount due and avoid late charges. If you do not remit your payment by the end of the grace period, your lender may try to contact you and remind you you’ve missed your payment and advise you that you now owe late fees in addition to your payment. If you get one of those late payment letters it is suggested you contact your financial institution and make arrangements to catch up on your mortgage payment.

What If You Can’t Make Your Mortgage Payments?

If you miss one or more mortgage payments and you do not have the financial capability of catching up on your mortgage payments, you can take action to avoid going into foreclosure or into a pre-foreclosure situation. There are plans such as forbearance agreements, mortgage modifications and other programs which financial institutions have to assist homeowners who have incurred their financial difficulties.

The Start of the Foreclosure Process In New York

Here’s how the foreclosure process in New York works. The financial institution which holds the mortgage on the home hires a law firm. The law firm drafts the summons and complaint. The summons and complaint is filed in the county clerk’s office of the Supreme Court in the county where the property lies. The lender, after filing the summons and complaint, also files a document called a “Lis Pendens”. This is a public notice legal action has been taken regarding your home and this puts everyone on notice that there is a problem with the title to your home and you no longer have good title to the house. Thereafter the lawyers for the financial institution, higher a process server to go to your home and serve you with a copy of the summons and complaint in the foreclosure lawsuit.

Filed Under: Foreclosure Tagged With: foreclosure, What Does It Mean? - Part 1

The “Foreclosure Abuse Prevention Act” Levels Playing Field For Homeowners

September 14, 2023 by Elliot S. Schlissel

On February 20, 2023 the new Foreclosure Abuse Prevention Act was signed by New York Governor Kathy Hochul. Here are some significant aspects of this new law;

A motion to discontinue a foreclosure lawsuit will no longer be able to reset the six year statute of limitations to bring a new foreclosure lawsuit. Under this new statute, legal action by the holder of the note. (e.g., the bank) to discontinue the lawsuit does not extend the statute of limitations for bring a foreclosure lawsuit. The holder of the loan is time barred from foreclosing the mortgage after six years from the date the loan was initially accelerated. The new law changes “the election of remedies” law in the State of New York. It now states, once the foreclosure action is barred by the statute of limitations, a loan owner or servicer is prohibited from bringing any other lawsuit to recover the same part of the mortgage debt. This includes preventing the financial institution from bringing another foreclosure lawsuit and/or an action to recover a personal judgment against the borrower on the promissory note.
In cases where the homeowner brings a quiet title action or in response to a homeowner’s or borrower’s statute of limitations defense in a foreclosure law suit, the statute of limitations still expires even when the lender did not validly accelerate the loan. Under this new law in New York, the loan owner or servicer would be permitted to assert that the acceleration was invalid only if a prior foreclosure action was dismissed based on a court ruling which ruled that the original acceleration of the mortgage is not valid for statute of limitation purposes.
This new law applies RETROACTIVELY to any foreclosure lawsuit action filed before December 30, 2022, for which a final judgment and order of sale has not been enforced.

Changing Foreclosure Rules

Financial institutions and their attorneys have been getting away with starting foreclosure lawsuits, withdrawing the foreclosure lawsuits, and then starting them all over again and continually renewing the six year statute limitations. Now homeowners have a sword to fight foreclosure lawsuits which they didn’t have in the past!

Filed Under: Foreclosure Tagged With: Foreclosure Abuse Prevention Act

SHOULD YOU HIRE A FORECLOSURE DEFENSE LAWYER?

June 6, 2023 by Elliot S. Schlissel

If you’re successful in modifying your mortgage on your own, you may not need a foreclosure defense lawyer. But if you’re unsuccessful obtaining a mortgage modification or if a process server shows up at your house and serves you with legal papers, it’s important you hire an experienced foreclosure defense lawyer as soon as possible.

INTERVIEW THE LAWYER

When you arrive at a foreclosure defense lawyer’s office, you should interview the attorney. You should find out his or her experience level. You should find out if they’ve published articles on foreclosure defense. You should speak to the attorney about how many cases they’ve handled and their success rate. You should look into whether they have appropriate staffing. Some attorneys’ offices are outgunned by the type of law firms hired by the financial institutions to bring foreclosure lawsuits. If you cannot afford to hire a private attorney, you may qualify for legal aid if available to help you defend you and your family in the foreclosure lawsuit.

Filed Under: Foreclosure Tagged With: Foreclosure Defense Lawyer

LEGAL PROCESS IN STATE AND FEDERAL COURTS INVOLVING FORECLOSURE

June 1, 2023 by Elliot S. Schlissel

Legal action can be taken by homeowners in either state courts or federal courts to save their homes. Unfortunately, these procedures are sophisticated. Most general practice lawyers are not familiar with the complicated process of fighting foreclosure lawsuits. Should you find yourself facing a foreclosure situation, do yourself a favor and hire an experienced foreclosure attorney.

WHAT CAN OF FORECLOSURE ATTORNEY DO TO HELP ME?

An experienced foreclose defense lawyer will be in a position to examine all of the documents connected with the obtaining of the mortgage on for your home. He or she can identify possible legal defenses or counter lawsuits which can be brought against the financial institution. A foreclosure defense lawyer can review your financial information and evaluate if there are mitigating circumstances which have caused your default. The mitigating circumstance can be brought to the attention of the financial institution to avoid your home from going into foreclosure. Your attorney could also be utilized to help you regarding a forbearance plan or a mortgage modification. There are a number of viable alternatives to losing one’s home in a foreclosure. Among them is having the attorney negotiate with your financial institution to work out a plan which meets your needs and saves your home.

LITIGATION

Should you end up in a foreclosure lawsuit, a qualified foreclosure defense lawyer can vigorously defend you and your family in court. Foreclosure defense attorneys who take an aggressive position with the financial institution can help in the negotiations with regard to obtaining a forbearance agreement, or a mortgage modification.

Filed Under: Foreclosure Tagged With: FEDERAL COURTS INVOLVING FORECLOSURE

CAN I FIGHT A FORECLOSURE?

June 1, 2023 by Elliot S. Schlissel

Mortgage loans generally are made for a period of 15 or 30 years. When homeowners take out the loan, they usually have good jobs, are healthy and have no problems making the payments. But during the term of the mortgage, sometimes homeowners run into financial difficulties. Their financial situations change. They experience all types of anxiety regarding losing their home.

THE FINANCIAL INSTITUTIONS ATTORNEY

Financial institutions have in house lawyers. They have outside counsel who bring lawsuits against homeowners that helps the financial institutions maintain their profitability. Foreclosure lawsuits can be fought. New York now has a mandatory modification mediation requirement before a foreclosure lawsuit is initiated. This puts pressure on the financial institution to come up with a program which is affordable by the homeowner and stops the foreclosure litigation from moving forward.

NOTICE REQUIREMENTS

There are all types of notice requirements and provisions which must be given to homeowners by financial institutions and the assignees of their mortgages before a foreclosure lawsuit can be started. In cases where the financial institutions do not specifically comply with all the terms and conditions of the statutes and consumer protection laws the homeowners may challenge the foreclosure lawsuit successfully and have it dismissed.

FRAUDULENT ACTIONS

In cases where there are fraudulent actions or misleading documents related to the loan application process or the foreclosure lawsuit, homeowners can fight these lawsuits in court and have the foreclosure lawsuits dismissed. In addition, there are procedural defenses in the New York Civil Practice Law and Rules and the rules of Court a foreclosing financial institution must very specifically comply with or the foreclosure lawsuit can be dismissed.

Filed Under: Foreclosure Tagged With: foreclosure lawsuits

A Primer On The Foreclosure Process

May 17, 2023 by Elliot S. Schlissel

PRE-FORECLOSURE

When a home owner falls three months behind on their mortgage payments the property is considered to be in a pre-foreclosure status. This will cause the financial institution to send demand letters. The letters will talk about mortgage modifications, forbearance plans, and possible other means of avoiding foreclosure. If the homeowner takes no action, the financial institution will usually initiate the foreclosure process.

NOTICE OF THE DEFAULT

Before the financial institution actually serves the summons and complaint in foreclosure case, a 90 day notice will be given to the homeowner. This 90 day notice advises the homeowner unless arrangements are made with regard to dealing with their late mortgage payments, a foreclosure lawsuit will be initiated.

FORECLOSURE LITIGATION

The litigation process in New York usually moves slowly. It was made slower by Governor Andrew Cuomo and Governor Hochul shutting down the foreclosure process during the course of the COVID-19 pandemic for approximately two years. A qualified foreclosure defense attorney can often tie a foreclosure up in the courts in New York for three to five years or even much longer than that.

THE END GAME IN A FORECLOSURE

At the end of a foreclosure litigation a public foreclosure auction takes place on the courthouse steps. The home is sold at the auction to the highest bidder. The financial institution will bid the entire amount of their mortgage and then speculators can bid over that amount if they seek to buy the home.

AFTER THE FORECLOSURE

When the foreclosure lawsuit has ended and a new owner has taken title to the home the new homeowner must provide notice they are the new homeowner to the ones who have lost their home. The notice statute in New York State requires they provide the former homeowners a copy of the new deed. Thereafter, the former homeowners will have to make arrangements to move from the premises or face an eviction proceeding which can result in their being put out of their home by the Sheriff or in the city of New York by a Marshall.

Filed Under: Foreclosure Tagged With: foreclosure process

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 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