The financial institution’s attorneys represent what is referred to in a lawsuit as the plaintiff.  The attorneys for the homeowner in a foreclosure case represent the defendant.  The plaintiff is usually the party that is pushing the case through the courts as quickly as possible to obtain the relief their client wants which is in foreclosure cases to sell the homeowner’s home.  The homeowner defends the lawsuit and seeks to have it dismissed or delayed.

Motion to Dismiss

A homeowner can make a motion to dismiss a foreclosure lawsuit.  There are various basis for motions to dismiss.  A homeowner can make a motion claiming the 6 year statute of limitations expired before the foreclosure lawsuit was initiated.  The homeowner can claim that there is a jurisdictional problem in the underlying lawsuit by the financial institutions against the homeowner.  The homeowner can also claim there are issues such as defective service of the summons and complaint, lack of standing of the financial institution to initiate the lawsuit and other defenses.

Motion to Extend Time to Answer

A homeowner has 20 days to serve an answer if served personally and 30 days to put an answer in if served by any other means.  If the homeowner is late in submitting their answer or needs extra time to submit their answer to the summons and complaint of the financial institution, the homeowner’s attorneys can request the financial institution’s attorneys extend their time to answer.  If they don’t agree to this extension, the attorneys for homeowner can make an application to the court via motion to extend the homeowner’s time to submit a written answer to the summons and complaint.  In addition to extending the time to submit an answer, if the homeowner has submitted an answer and there are problems with the answer or the answer does not contain all the material necessary to properly defend the lawsuit, the homeowner can make an application to the court to amend their answer even after the time for the homeowner to amend their answer as of right has passed.

Discovery Motions

The homeowner can serve discovery demands on the attorneys for the financial institution.  These discovery demands can ask for the providing of information, documents, names of witnesses and other material needed by the homeowner to effectively litigate the foreclosure case.  If the homeowner serves discovery demands on the attorneys for the financial institution, the financial institution has a limited period of time to respond to these discovery demands.  If the financial institution fails to respond to the discovery demands or responds to some questions and doesn’t respond to others or makes unreasonable objections to the discovery demands, the homeowner can make a motion to force the financial institution to respond to the homeowner’s demands in an appropriate manner.  This motion is referred to as a motion to compel discovery.

Motion to Dismiss for Failure to Prosecute

Sometimes in a foreclosure case the attorneys for the financial institution let a file fall by the wayside.  In these situations the homeowner can give the financial institution written notice that unless the attorneys for the financial institution move forward with their case, they will make a motion to dismiss for failure to prosecute the case.  The homeowner’s attorneys must give the financial institution’s attorneys 60 days notice prior to making this motion.

Motion for Summary Judgment

Counsel for both the plaintiffs and for the defendants in any case can make motion for summary judgment.  In a situation where the counsel for the homeowner believes they can prevail in a foreclosure lawsuit on paper with legal arguments and present undisputed facts with regard to pertinent legal defenses submitted in counterclaims, they can move for summary judgment against the financial institution.

Course of Motion Practice

Most financial institutions have billions of dollars in assets.  Most homeowners are working people.  The attorneys for the financial institutions have much greater leeway to get involved in motion practice because their client, the “bank”, can pay them tens of thousands of dollars if necessary to prosecute their lawsuit.  Homeowners’ attorneys have to take into consideration the costs of litigation.  Motion practice by the homeowners’ attorneys has an expediential increase in the costs of foreclosure litigation.  In many situations homeowners simply cannot afford the costs of this type of motion practice.

Elliot S. Schlissel, Esq. is a foreclosure defense attorney.  He has been keeping homeowners in their homes for more than 3 decades.  Elliot, his partner Nathan DeCorpo and his staff of lawyers litigate cases throughout the Metropolitan New York area involving foreclosures.  They obtain mortgage modifications and also file bankruptcies for their clients when necessary to avoid their homes going to sell.  Elliot can be reached at Elliot@sdnylaw.com or the law firm can be called at 800-344-6431.

During the past 12 months the prime interest rate has increased from 3.75% to 5.15%.  This has created a significant decrease in the buying power of new homeowners.  As mortgage rates go up, the cost of borrowing increases.  This tends to have a negative impact on the real estate market regarding the sale of residential real estate.

Cap on Real Estate Tax Deductions

The new Federal Tax Law now in effect in 2019 provides a $10,000.00 cap on the deduction homeowners can take on real estate taxes.  This is having a significant negative impact on the real estate market in New York.  This is especially true for homes at the higher end of the real estate market that have real estate taxes greater than $10,000.00.  Nassau County on Long Island has seen a significant slowdown in the sale of homes with significant real estate taxes.

Adjustable Rate Mortgages (ARMs)

The rising interest rates are causing more homeowners to take adjustable rate mortgages instead of fixed rate mortgages.  Adjustable rate mortgages often start very low but go up over time.  This may increase the number of foreclosures among those homeowners in the future.

Elliot S. Schlissel, Esq. is a foreclosure lawyer.  He helps his clients fight foreclosure lawsuits and obtain mortgage modifications. He has been assisting homeowners throughout the Metropolitan New York area regarding foreclosures for more than 45 years.  He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

In the State of New York there is a requirement that all foreclosures involving residential property are subject to mandatory foreclosure settlement conferences.  After the financial institution has served a 90 day notice on the homeowner, and a summons and complaint on the homeowner within 60 days thereafter the financial institution must file a Request for Judicial Intervention.  The Request of Judicial Intervention, commonly referred to as an “RJI”, causes the court to schedule a mandatory foreclosure settlement conference.  These conferences take place in every county in the State of New York.   The mandatory foreclosure settlement conference will take place in the county in which the home is located.

The Purpose of the Settlement Conference

The foreclosure settlement conferences allow homeowners and their attorneys to meet with the financial institution’s lawyers for the purpose of working out possibly resolutions of the case other than the home being sold.  The resolution most homeowners seek is to obtain a mortgage modification that is affordable.  When the homeowner or their attorney appears at the mandatory foreclosure settlement conference there are discussions with regard to the submission of documents necessary for the financial institution to underwrite a mortgage modification.  For the homeowner to be successful with regard to the mandatory foreclosure settlement conferences they must diligently comply with the document requests made by the financial institution’s lawyer.

These conferences can put pressure on the financial institution by the court to work out a resolution of the foreclosure case with the homeowner where the homeowner’s home is not sold at auction on the courthouse steps.

Supervision of the Settlement Coference

The mandatory foreclosure settlement conferences are supervised either by a court appointed referee or a judge.  At the time of the first court conference if the homeowner seeks to submit for a mortgage modification, the conference will usually be adjourned for 2 to 3 months to give the homeowner reasonable time to submit the appropriate documents and to give the financial institution time to underwrite the documents that are submitted for the purpose of determining whether the homeowner qualifies for a mortgage modification.  The attendance by the attorneys for the homeowner at these foreclosure conferences will continue to put pressure on the financial institution to provide the homeowner with a reasonable mortgage modification.

Missing the Conference

It is never a good idea for a homeowner or their attorney to miss foreclosure settlement conferences.  The foreclosure settlement conference stops the foreclosure lawsuit from going forward and gives the homeowner an opportunity to seek an alternative to losing their home in a foreclosure sale.  Although a homeowner can apply for a mortgage modification at any time during the litigation, the mandatory foreclosure settlement conferences are designed to allow the court to supervise the mortgage modification procedures.  It is always in the homeowner’s interest to have the courts maintaining pressure on the financial institution to provide the homeowner with a mortgage modification.

Mandatory foreclosure conferences slow down the foreclosure lawsuit.  There is a concept called “dual tracking”.  This means while the homeowner is applying for a mortgage modification the financial institution cannot at the same time proceed with the litigation process to take back the homeowner’s home.

Elliot S. Schlissel, Esq., his partner Nathan DeCorpo, Esq. and his associates have a history of excellent results in helping homeowners obtain mortgage modifications.  The firm can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Have you fallen behind on your mortgage?  Have you missed more than one mortgage payment?  Could it be you’ve missed 2 or 3 or even more mortgage payments?  If any of these problems have happened to you, the bank that holds your mortgage may take legal action to come after your home.  The legal action taken by the financial institution to take the home back is called a foreclosure lawsuit.

How It Starts

The first item you should receive from the attorneys from the financial institution is called a 90 day Notice.  This Notice states that you’ve fallen behind on your mortgage and unless you become current within the next 90 days your financial institution will be bringing a foreclosure lawsuit against you.  The foreclosure lawsuit is commenced by the attorneys for the financial institution by drafting and filing a summons and complaint with the County Clerk in the County in which your home is located.  Thereafter a process server is hired to serve the Summons and Complaint upon you either at your residence or at your principal place of employment.

Responding to the Foreclosure Proceeding

If served with the Summons and Complaint you must file an Answer.  Submitting an application for a mortgage modification is not a response to a foreclosure lawsuit.  Should you submit a mortgage modification application and if you do not serve and file an Answer to the Complaint with the Court and opposing counsel, you will default in the foreclosure case.  A default is an acknowledgement the allegations in the financial institution’s foreclosure complaint against you are true.  This allows the foreclosure lawsuit to move through the courts unopposed and faster.

Foreclosure Settlement Conferences

After a foreclosure lawsuit is initiated by the attorneys for the financial institution, the lawyers for the financial institution will file a request for court intervention.  This will cause the court to schedule a foreclosure settlement conference.  The purpose of foreclosure settlement conferences is to work out arrangements between the homeowner and the attorneys for the financial institution to allow the homeowners to stay in their homes.  This is usually accomplished by the homeowner submitting a mortgage modification to counsel for the financial institution and having it monitored by the court.  The progress of the mortgage modification will be supervised by a referee at the foreclosure settlement conference part at the court.  It may take several conferences to finalize a mortgage modification.  However, it must be pointed out, there is no guaranty you will receive a mortgage modification.   Financial institutions provide homeowners with mortgage modifications when they meet the criteria developed by the financial institution with regard to approval of mortgage modifications.  The purpose of the foreclosure settlement conferences is for the referee to make sure the financial institutions and their attorneys are negotiating in good faith.

Elliot S. Schlissel, Esq. is the managing attorney of Schlissel DeCorpo LLP.  The law firm has more than 45 years of experience representing hundreds of homeowners throughout the Metropolitan New York area with regard to litigating foreclosure lawsuits and helping them obtain mortgage modifications.  The firm can be reached at 800-344-6431 or by e-mail at Elliot@sdnylaw.com.