Foreclosure – Page 32

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

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

Wells Fargo Sanctioned By Court For Bad Foreclosure Practices

September 20, 2013 by Elliot S. Schlissel

Justice Yvonne Lewis, sitting in Supreme Court in Kings County recently sanctioned Wells Fargo for “wantonly flagrant” bad faith involved in a residential foreclosure lawsuit. Justice Lewis in her decision stated that Wells Fargo had repeatedly frustrated the efforts by two brothers, Francis Ruggiero and Michael Ruggiero to obtain a mortgage modification. They continually demanded more and more financial information.

The Ruggiero brothers owned a home in East New York. They refinanced their home in 2006 with Wells Fargo. They fell behind in their mortgage in 2007. In May of 2007, Wells Fargo initiated a foreclosure action against them.

Court Settlement Conference

At a court settlement conference, the parties agreed to a three month trial mortgage modification. The Ruggerio’s made the first payment under the modification and then missed the next two. At subsequent settlement conferences, the Ruggerio’s claimed they had not been given a trial mortgage modification. Wells Fargo claimed they needed more information for a final determination on their mortgage modification for the Ruggerio’s. Wells Fargo, at the foreclosure conference, requested the Ruggiero’s make further payments under the temporary mortgage modification. However, every time the Ruggerio’s made the payments, they were rejected by Wells Fargo.

In the end, Wells Fargo denied the mortgage modification application. However they offered to modify the mortgage for $2,672.70 per month. This was $600 a month more than the amount under the trial modification by Wells Fargo.

There were further additional settlement conferences before the court. The Ruggiero’s submitted a further package of financial information to Wells Fargo but Wells Fargo took no action concerning this new information. Eventually, Wells Fargo said it would not offer a loan modification, but would reconsider if the Ruggiero’s again submitted a financial package. In the end Wells Fargo never approved a mortgage modification for the Ruggiero’s.

Lack Of Good Faith By Wells Fargo

Judge Lewis in her ruling stated the case is “replete with pervasive indicia of the plaintiffs lack of good faith, evidenced by conflicting information, a refusal to honor agreements, unexcused delays, unexplained charges and misrepresentations and sets forth, in no small measure, a failure to deal honestly, fairly and openly.” The Judge went on to state, “more to the point, it is irrefutable on the proof adduced that the defendants, despite being subjected to ten to twelve arbitrary submissions, successfully established their occupancy of the subject premises, successfully completed the plaintiff’s trial HAMP period, and submitted all required documentation in order to accord themselves a modified loan agreement in the amount of $2,061.50 which the plaintiff in turn, arbitrarily and capriciously increased by $611.20 under false pretenses without any justifiable basis, and ingenuously denied.”

Justice Lewis went on to state that the monetary penalty’s she was imposing on Wells Fargo was necessary because of Wells Fargo failure to comply with the HAMP program.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: defective foreclosure lawsuits, foreclosure, foreclosure attorney, foreclosure defense, mortgage modification, mortgage modification attorneys, mortgage modification denied, mortgage modification denied new york, Mortgage Modifications attorney

City Seeks To Save Homes Through Eminent Domain

September 18, 2013 by Elliot S. Schlissel

The City of Richmond, California has come up with a unique plan. The city sent notices to the institutions holding more than 600 underwater mortgages. The city asked these institutions to sell the mortgages to the city. The city offered to buy the mortgages for 80% of the fair market value of the homes. The City intended on writing down the mortgages for the purpose of helping the homeowners refinance their properties.

Investment Group Brings Lawsuit To Stop The City

An investment group filed a lawsuit in a Federal Court in California. They seek to prevent the City from using Eminent Domain to seize mortgages of local residents who owe more than the value of their property. The investment group claimed “the purpose of the lawsuit is to protect retirees and save them from an unlawful and unconstitutional seizure of private property and to prevent severe damage to the country’s home mortgage market.” The investment group requested the court stop Richmond, California from moving forward with its program and to declare its plan to seize mortgages as being unconstitutional. The City of Richmond claimed the lawsuit is without merit and their plan is appropriate.

Since the case is in its infancy, we’ll see how things work out in the future. However if the city is willing to seize its resident’s underwater mortgages, make a deal with the institutions holding those mortgages to pay them a fair amount for the mortgages and thereafter the homeowner’s refinance their homes for a lesser amount, it looks like a win-win situation for all parties involved.

Foreclosure Defense Lawyer

Elliot S. Schlissel, Esq. is a prominent foreclosure lawyer representing homeowner’s against financial institutions throughout the metropolitan New York area. Elliot and his associates aggressively litigate foreclosure lawsuits and assist their clients in obtaining mortgage modifications.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: foreclosure, foreclosure attorney, foreclosure defense, mortgage modification, mortgage modification attorneys, Mortgage Modification new york attorney

Foreclosure Lawsuit Dismissed

September 16, 2013 by Elliot S. Schlissel

In a recent case, Justice François Rivera sitting in the Supreme Court Foreclosure Part in Bronx County dismissed a foreclosure lawsuit brought by HSBC Bank as Trustee. In this case, HSBC claimed the homeowner had two mortgages on the property. Both mortgages were combined by a consolidation agreement. HSBC claimed the homeowner’s defaulted by not paying the mortgages. HSBC stated the mortgages were assigned by an Affidavit of Lost Assignment.

HSBC Seeks The Appointment Of A Referee To Sell The Property

HSBC brought an application to the Court. They sought to change the caption of the proceeding from the then current defendant, Brunson, and replacing her name with the co-administrators of her estate. It turns out that Brunson died two years before the action was commenced by HSBC. Simply speaking, HSBC sued the homeowner two years after the homeowner died. Judge Rivera took the position the entire lawsuit was a nullity from its very start. The application by HSBC to modify the caption could not be granted. The court’s decision was that the court didn’t have jurisdiction to even entertain the motion made by HSBC.

Conclusion

Banks shouldn’t sue dead people. Banks can only sue the Estate or the Administrators or Executors of an estate after someone dies.

About The Author

Elliot S. Schlissel, Esq. and his associates diligently and aggressively represent homeowners in mortgage foreclosure lawsuits. Elliot and his associates provide foreclosure legal defense in the courts throughout the metropolitan New York area.

Foreclosure Dismissed: No 90 Day Notice

September 9, 2013 by Elliot S. Schlissel

Justice Yvonne Lewis, sitting in the Supreme Court of Kings County, recently dismissed a foreclosure proceeding brought by LaSalle Bank. LaSalle Bank brought a proceeding to foreclosure on a mortgage against Deanne Legier and Joyce Legier. The bank claimed both of the defendants had been served with legal process (a summons and complaint) at the real property’s address in Brooklyn. Deanne claimed she had never been served with the Summons and Complaint. She alleged that she did not reside at the address where the Summons and Complaint was served. Although Joyce was served, Joyce did not give Deanne a copy of the Summons and Complaint.

The Court, in its decision, found New York Real Property Actions and Proceedings Law section 1304 contained a requirement that a lender must comply with prior to bringing a foreclosure proceeding. This section of law required a lender to give a borrower 90 days’ notice before bringing a foreclosure proceeding on what was called a non-traditional mortgage.

Judge Lewis found that LaSalle Bank failed to show it provided the defendant’s with a Notice of Default before demanding payment in full on the underlying mortgage loan. Judge Lewis’ decision stated LaSalle Bank did not “unequivocally show compliance with section 1304 of the New York Real Property Actions and Proceedings Law.” They merely stated in their paperwork Joyce Legier failed to raise a triable issue of fact in a Summary Judgment Motion. The Judge, in her decision, stated LaSalle Bank had to comply with a condition precedent prior to bringing its lawsuit or making a Summary Judgment motion. She dismissed the foreclosure proceeding! Banks must fully comply with statutory compliance before initiating foreclosure lawsuits.

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

Part III: Bank Of America Had Been Sued For Improperly Handling Mortgage Modifications Before

September 6, 2013 by Elliot S. Schlissel

In 2012, Bank of America settled a lawsuit brought by a former employee of a contractor who worked with the bank. This employee had accused Bank of America of mishandling HAMP applications. The Bank has also settled two major Federal lawsuits related to improper foreclosures practices.

Consolidation of Lawsuits

The pending lawsuit against Bank of America is part of a consolidation of 29 separate suits brought against the bank. The lawsuits come from across the country and have been certified as a class action. The lawsuit deals with homeowners who received trial modifications, and made all of their payments on a timely basis. However these homeowners did not receive timely responses from the bank as to whether they would be given a permanent mortgage modification. Pursuant to the HAMP program, the initial trial period was supposed to last for three months. However with Bank of America, it often lasted much longer. The problem was that Bank of America, as well as other banks, refused to properly fund their mortgage servicing operations under the HAMP program. Unfortunately there was not sufficient government oversight of these programs to pick up these problems right away.

It is estimated there are 800,000 mortgages that would have qualified for HAMP mortgage modifications if Bank of America and other large financial institutions had properly funded the HAMP program and supervised the program in the manner in which it was intended. This program was intended to help homeowners during the mortgage crisis in America. Unfortunately, since it was a voluntary program that was underfunded, it did not accomplish its goal!

The Purpose Of The HAMP Program

The purpose of the HAMP program was for the government to give cash incentives to financial institutions to modify home mortgages pursuant to specific standards. This was supposed to provide a streamlined process to help the 4 million homeowners having difficulties in the United States. Instead of accomplishing its goal, Bank of America utilized this program as a means, pursuant to statements of former employees, to obtain as much money as possible from the struggling homeowners and then foreclose their homes. Under the program, buyers were supposed to make trial payments for three months. However in many instances, the trial payments lasted for as long as a year and sometimes even longer. After making as much as a year or more of trial payments, instead of the mortgage modification becoming permanent, the homeowners were denied mortgage modifications. To make matters worse, they then found they owed the difference between the amount of the payments under the trial modification and their original mortgage payments. The Bank of America employees, in statements they had given stated that many of them were given no training whatsoever with regard to the requirement of the HAMP program.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: defective foreclosure lawsuits, foreclosure attorney, foreclosure defense, foreclosure defense attorneys, foreclosure defense lawyers, mortgage modification, mortgage modification denial, Mortgage Modification new york attorney

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

Mortgage Servicing Agencies’ Failure to Perform Their Duties

Wells Fargo Sanctioned By Court For Bad Foreclosure Practices

City Seeks To Save Homes Through Eminent Domain

Foreclosure Lawsuit Dismissed

Foreclosure Dismissed: No 90 Day Notice

Part III: Bank Of America Had Been Sued For Improperly Handling Mortgage Modifications Before

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