In the State of New York if a foreclosure lawsuit is started the financial institution must schedule a foreclosure mortgage modification conference with the court. These conferences take place in a dedicated location in the courthouse in the county the foreclosure is brought. The purpose of these conferences is to see if an alternative to the home being sold in the foreclosure lawsuit can be worked out. The most common means of dealing with the lawsuit is for the homeowner to apply for a mortgage modification. The purpose of these conferences is to allow the homeowners to maximize their potential of obtaining a mortgage modification.

Law Firms

There are law firms, such as mine, who have attended hundreds of foreclosure modification conferences. The experience in attending many of these conferences and dealing with the attorneys for the bank on a regular basis provides the law firms that deal with these matters with a unique type of expertise. Foreclosure attorneys that have an expertise in helping homeowners obtain mortgage modifications will greatly increases the potential the homeowners will be able to keep their homes. However, many homeowners attend these foreclosure mediation mortgage modification conferences without retaining a qualified defense lawyer. This is generally a mistake.

Bad Faith

An experienced foreclosure lawyer will have a unique prospective on maximizing the potential for the homeowner to obtain a mortgage modification. The standard utilized by courts in determining whether the financial institution and their attorneys are acting appropriately is referred to as “bad faith”. Whether the financial institution and their attorney are acting in bad faith is an issue to be presented to the court with regard to the mortgage modification process.

Loan Modification Application Process

An experienced foreclosure defense lawyer will have the expertise to work through the loan modification application process. This will provide his or her clients with the opportunity of attending as many settlement conferences as is necessary to maximize the homeowner’s potential of obtaining the mortgage modification. These procedures also delay the onset of the legal process that can result in the homeowners being forced to move from their home. If the mortgage modification process is successful the homeowners get to stay in their homes and the financial institutions attorneys are thereafter forced to withdraw the foreclosure lawsuit.

Conclusion

If you are served with legal papers in a foreclosure lawsuit or receive notice there is a foreclosure settlement conference coming up in court, it is important to retain the services of an experienced foreclosure defense law firm.

The law offices of Schlissel DeCorpo LLP have been fighting foreclosure lawsuits for more than 3 decades. The law firm has hundreds of pending cases throughout the courts in the Metropolitan New York area and the firm takes an aggressive position with regard to litigating these cases and helping clients obtain mortgage modifications. Should you have questions feel free to contact Elliot S. Schlissel, Esq. at 800-344-6431 or e-mail him at Elliot@sdnylaw.com. The law firm maintains offices in Nassau, Suffolk and Queens Counties.

In a case in Westchester County Justice Lawrence Ecker, sitting in a Supreme Court foreclosure part, ruled due to a mistake a party’s home was sold and the sale should be set aside.

Referee Sells the Property

The sale of the property was conducted by a Referee. The homeowner had spoken to the bank’s lawyer and was under the impression the sale was not going to move forward. However, the sale did move forward and the referee sold the property to the successful bidder. The bidder provided the referee with a deposit. However, a deed was not yet provided to the successful bidder.

Communication Issues

Justice Ecker found the mistake was not related to a one-time communication. There had been communications over a two-month period and the homeowner’s attorney was assured the scheduled sale would not be moving forward. The reason for the sale not moving forward was the bank had acknowledged the homeowner had completed all the steps required for the reinstatement of the mortgage.

Justice Ecker found as a matter of equity and good conscious, the sale should be set aside. Justice Ecker also ruled the purchaser should be entitled to a refund of his deposit plus interest.

Conclusion

Even after a home is sold it is still possible to bring a motion to the court where the foreclosure lawsuit is pending, to set the foreclosure sale aside if good cause can be presented to the court.

In a case in Orange County, New York before Supreme Court Justice Maria Vasquez-­Doles a foreclosure lawsuit was commenced against homeowners. Aschmoneit was the only defendant who submitted a written answer to plaintiff’s summons and complaint. Foreclosure conferences were scheduled and plaintiff’s counsel appeared at the conferences. He stated he was unable to obtain an affidavit of merit from the plaintiff for the purpose of making a timely application for a summary judgment motion. Justice Vasquez-Doles as a result of counsel’s statement dismissed the lawsuit. Thereafter plaintiff moved to vacate the dismissal and asked for a summary judgment against Aschmoneit, the defendant.

The original lender on this case was First Federal Savings and Loan Association. Counsel for the plaintiff claimed the dismissal by Judge Vasquez-Doles was improper because an attorney for the plaintiff has appeared at the foreclosure court conference and therefore the court did not have the discretion at that conference to dismiss the case.

Bank’s Arguments Without Merit

Judge Vasquez-Doles found plaintiff’s counsels argument to be meritless. In her decision she stated at foreclosure mediation court conferences counsel for plaintiff has to both appear and be ready to proceed. In this situation plaintiff’s counsel failed to obtain/an affidavit of merit from his client. He therefore could not make a timely motion for summary judgment. She further went on to hold the dismissal was proper. There was no documentary evidence of the assignment of the mortgage provided to the court. The financial institution could not show they had a meritorious claim against Aschmoneit. Aschmoneit should have received a copy of the certificate of merit from counsel for the plaintiff when she was served with the summons and complaint. Since she was not served with this document, the dismissal of the case was correct.

Conclusion

Foreclosure cases can be dismissed based on the financial institution’s attorneys’ failing to comply with the myriad of rules, regulations, statutes and court ordered responsibilities they have.

Elliot S. Schlissel and his associates have been representing homeowners sued in foreclosure cases for more than 3 decades.

In a case before Justice Joan Lefkowitz sitting in the Supreme Court Real Property Part in Westchester County, US Bank made an application for summary judgment. This application was brought in the foreclosure lawsuit and it was opposed by the defendant, Glusky. Glusky took the position the bank failed to satisfy a condition precedent to initiation of a foreclosure case. Glusky claimed the bank failed to comply with the 90 day notice requirement under Real Property Action and Proceedings Law Section 1304. The failure of the bank’s compliance with this law denied the bank standing to bring the foreclosure lawsuit.

Justice Joan Lefkowitz had made a previous decision holding the bank had failed to establish prima facie entitlement to summary judgment. This was because they did not establish the bank was in compliance with the Section 1304 of the Real Property Action and Proceedings Law 90 day notice requirements. This statute requires the bank provide a homeowner with 90 day’s-notice prior to the initiation of a foreclosure lawsuit.

Bank Seeks To Get Around 90 Day Notice Statute

The bank’s attorneys had sent Glusky a notice to admit. He objected to the notice. He asked the court for an order striking the notice to admit. Glusky claimed the facts went to the heart of the case. Counsel for the bank argued against Glusky’s protective order. Justice Joan Lefkowitz found the notice to admit asked Glusky to admit to material issues which were in dispute in this case. Therefore, she found the notice to admit was improper. Glusky had appropriately rejected the bank’s claim. The Judge also found the fact that Glusky did not object to it in a timely manner is not relevant to the notice to admit being improper. Judge Lefkowitz rendered a decision which stated since the notice to admit was improper. Glusky simply did not need to respond. Judge Lefkowitz granted Glusky’s protective order striking the notice to admit.

Elliot S. Schlissel and his associates are foreclosure lawyers who have protected homeowners in foreclosure cases for more than 3 decades.