Foreclosure – Page 6

Lawsuit Dismissed: Borrower Was Not Served With Foreclosure Notice

May 21, 2019 by Elliot S. Schlissel

In a case before United States District Court, Judge Nicholas Garaufis, who sits in the Eastern District (Federal Court of New York), sometime between executing a note and mortgage in 2005 and 2017 regarding a foreclosure Stern sold the mortgaged property. The property was subdivided among new owners. In 2016 the plaintiff did not serve Stern a notice under New York Real Property Action and Proceedings Law Section 1304 which was to provide homeowners notice they were at risk of losing their home in foreclosure.

Homeowner Moved Out of the Property

Stern was not served with the appropriate notice under Real Property Action and Proceedings Law Section 1304 because the bank’s lawyers thought he was not entitled to such notice because Stern no longer lived in the property.

Foreclosure Lawsuit Dismissed

US District Court Judge Nicholas Garaufis dismissed the foreclosure lawsuit for failure to serve Stern with the required pre-foreclosure notice under Real Property Action and Proceedings Law Section 1304. This section requires the pre-foreclosure notice to be sent to the borrower at the time of the acceleration of the motion. This is true even if the borrower later moves out of the property which secures the loan. The fact that Stern no longer occupied the property as is primary residence did not excuse the financial institution’s obligation to serve Stern with notice of the foreclosure lawsuit. Judge Garaufis ruled when a lender, assignee or mortgage servicer fails to show strict compliance with the Real Property Action and Proceedings Law Section 1304, the foreclosure lawsuit must be dismissed.

Elliot S. Schlissel, Esq. is the managing partner of Schlissel DeCorpo LLP. The firm has been representing homeowners throughout the Metropolitan New York area regarding foreclosure matters for more than 45 years. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Filed Under: Foreclosure, Foreclosure Defense

Homeowner Failed to Assert Affirmative Defenses: Bank Granted Judgment of Foreclosure and Sale

May 6, 2019 by Elliot S. Schlissel

In a matter before Supreme Court Justice Howard Heckman, who sits in Suffolk County, a bank brought a foreclosure lawsuit against Bourie. The bank claimed in the lawsuit Bourie defaulted in making his mortgage payments. The bank eventually brought a motion for summary judgment asking that the answers submitted by Bourie be stricken. In response to the bank’s summary judgment motion, Bourie argued the bank failed to prove service of the Summons and Complaint in compliance with the Fair Debt Collection Practices Act.

“Fair Debt Collection Practices Act”

The bank in its opposing papers pointed out Bourie had failed to assert the affirmative defense of the bank’s alleged failure to serve a mortgage default notice. Justice Heckman ruled Bourie’s failure to submit an affirmative defense of the bank’s failure to serve him with a notice of default acted as a waiver of his rights to assert compliance in opposition to the bank’s summary judgment motion. Justice Heckman also ruled Bourie waived his Fair Debt Collection Practices Act defense by his failure to assert it as an affirmative defense in his answer. The judge granted the bank’s summary judgment motion and allowed them to move forward with the sale of Bourie’s home.

Conclusion

When the bank initiates a foreclosure lawsuit, a homeowner has either 20 days or 30 days to submit a written answer to the bank’s lawsuit. In the answer the homeowner must allege all of his defenses and affirmative defenses to the lawsuit. If the homeowner fails to list a defense or affirmative defense to the lawsuit, it is considered that he has waived his right to utilize this defense or affirmative defense in his case.

Elliot S. Schlissel is the managing partner of Schlissel DeCorpo LLP. The firm has been representing homeowners throughout the Metropolitan New York area regarding foreclosure matters for more than 45 years. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Representing Yourself in a Foreclosure

April 18, 2019 by Elliot S. Schlissel

Representing Yourself

My office has been representing homeowners in foreclosure cases for more than 45 years. Often homeowners come to me and they tell me they have been representing themselves in a foreclosure. When I ask them how they are doling, they say well we were doing fine. This means the homeowner has hit a brick wall. If you need an operation would you engage in surgery on yourself? No homeowner should ever represent themselves in a foreclosure. At a minimum they will be greatly outmatched. Financial institutions have unlimited money to hire lawyers. Lawyers who engage in foreclosure practice sue hundreds of homeowners in multiple courts throughout the Metropolitan New York area. They have extensive experience in litigating foreclosure lawsuits.

The Stubborn Homeowner

In spite of what I have indicated above, our office sees quite a few homeowners who have been litigating their own cases. A large majority have done a poor job. However, occasionally I run into bright, articulate homeowners who are actually doing a good job in representing themselves in the foreclosure lawsuit. For those homeowners I ask them several questions. How to do you plan on questioning yourself if you are on the witness stand? Can you explain to me how you can establish the foundation for presenting evidence to the court? When I ask these questions the homeowners are usually dumbfounded.

Foreclosure Defense Lawyers

Most lawyers are not familiar with the process of defending foreclosure lawsuits. The defense to a foreclosure lawsuit involves specialized pleadings. The best defense to a foreclosure case would be to prove the homeowner has made the payments. However, this is almost never the case. The defenses to foreclosure lawsuits usually deal with sophisticated statutory defenses. Truth and Lending Laws violations, violations of state and federal banking laws, failure to provide proper notice, failure to serve a summons and complaint in conformity with statutory requirements, failure to act in good faith with regard to foreclosure mortgage modification conferences, failure to provide the appropriate documents at the closing and the list of legal defenses goes on and on.

Hire an Experienced Foreclosure Defense Lawyer

Only attorneys with intimate knowledge of the underwriting process of mortgage loans, the regulatory requirements financial institutions need to comply with and knowledge of the ins and outs of foreclosure cases can provide a specialized level of representation for homeowners. The banks hire experienced attorneys to bring their foreclosure actions. Homeowners should not rely on just any attorney to represent them. They should only hire experienced foreclosure defense lawyers with a track record of successfully representing homeowners.

Before hiring a foreclosure defense law firm ask them how many articles he or she has written regarding foreclosure cases. Our law office has been diligently litigating foreclosure lawsuits and helping homeowners obtain mortgage modifications for more than 45 years. We have kept hundreds of homeowners in their homes. We are available for free consultations. We pride ourselves in keeping our clients in their homes. We can be reached for a free consultation at our offices in Nassau, Suffolk and Queens Counties at: 516-561-6645, 718-350-2802 or 631-319-8262. You can also e-mail us at Elliot@sdnylaw.com.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: foreclosure

Bank Fails to Show Standing to Maintain Foreclosure Lawsuit

December 13, 2018 by Elliot S. Schlissel

Bank Fails To Show Standing To Maintain Foreclosure Lawsuit In a case before Justice Robert Muller sitting in Clinton County, Beneficial Finance Service provided a mortgage loan to Carpenter. Carpenter defaulted in making payments to Beneficial Finance Service. Caliber Home Loans, acting under a Power of Attorney for Beneficial Finance Service, started a foreclosure lawsuit against Carpenter. Carpenter claimed defenses to the lawsuit including a lack of standing by Caliber Home Loans.

Summary Judgment Application

The Calibers brought a motion for summary judgment against Carpenter. They sought to have his answer dismissed. Justice Robert Muller noted plaintiff’s papers did not contain a power of attorney. They also did not contain a servicing agreement authorizing Caliber Home Loans to act as attorney in fact and servicer.

The Judge’s Decision

Justice Muller found it was unclear whether the affidavit by Neilson indicating he was familiar with Caliber Home Loans business records also claiming that Caliber was the custodian receiving physical possession of the note and mortgage from Beneficial Finance Service was valid. Justice Muller found it was also unclear whether the plaintiff actually had physical possession of the note. The assignment of the mortgage did not discuss who had possession of the note. It only discussed the transfer of the mortgage.

Justice Muller rendered the decision stating Beneficial Home Servicer and Caliber Home Loans failed to establish standing to bring the foreclosure lawsuit and the summary judgment motion was denied.

Conclusion

Financial institutions must prove they are the appropriate party to bring a foreclosure lawsuit. The defense to the foreclosure lawsuit being brought by an institution that does not have the proper authority is called “lack of standing.”

schlissel-headshot Elliot S. Schlissel is a foreclosure attorney who has been fighting foreclosure lawsuits for more than three decades. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: foreclosure defense

Foreclosure Action Dismissed: Bank Had No Standing

December 11, 2018 by Elliot S. Schlissel

In a case in Orange County before Justice Maria Vasquez-Doles a plaintiff moved for summary judgment claiming there were no questions of fact and that a trial was not necessary in this foreclosure case. They requested an appointment of a referee to compute the amount which was owed. In addition, they wanted a default judgment against non-appearing defendants. The original note and mortgage was between Home Funds Direct and the homeowners. It was claimed the homeowners defaulted by not making timely mortgage payments. US Bank Trust moved for summary judgment. The defendants argued US Bank Trust did not have standing to bring the lawsuit. They claimed MIRS was never authorized by the original lender to assign the note and mortgage to US Bank Trust. The defendants claimed the note was in the possession of “a custodian Wells Fargo Bank” not US Bank Trust.

The Judge’s Decision

Justice Vasquez-Doles found US Bank Trust had not met its burden of proof to show it had standing to bring the foreclosure lawsuit. She found they failed to establish a prima facie case that US Bank Trust was in possession of the note because Wells Fargo continued to possess the original note. She also found US Bank Trust could establish the standing by showing the note was assigned to them, but they failed to do this. She also pointed out there is no endorsement to MIRS on the note giving it authority to assign the note. The evidence presented in the case was there was no evidence indicating MIRS had a right to assign the note. MIRS also could not transfer something it did not have possession of. Although US Bank Trust could have established physical delivery of the note to them, they did not undertake to do this in this case. Justice Vasquez-Doles therefore dismissed the case.

Elliot S. Schlissel is a foreclosure lawyer representing homeowners throughout the Metropolitan New York area for more than 45 years. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: foreclosure, foreclosure defense

Reverse Mortgage Foreclosure Issues

November 27, 2018 by Elliot S. Schlissel

Reverse mortgages are made to homeowners aged 62 or older. They allow the homeowners to access the equity in their home to pay their bills while allowing them to continue to live in their homes. In situations involving reverse mortgages the homeowner no longer makes monthly payments. The amount owed to the financial institution gets charged against the homeowner’s home equity and these loans are usually insured by the Federal Housing Administration. The reverse mortgage is not due and payable until the homeowner’s death.

Taxes and Insurance on the Home

Although the homeowner does not have to make mortgage payments, the homeowner is usually responsible for paying the property taxes, school taxes and maintaining their homeowner’s insurance. The failure by homeowners to pay these expenses can cause the financial institution that provided the reverse mortgage to bring a foreclosure lawsuit based on the homeowner’s non-compliance with the conditions involved in the mortgage.

Reverse Mortgage Foreclosure Default

New legislation requires reverse mortgage defaults now have to receive a 90 day preforeclosure notice under the Real Property Actions and Proceedings Law Section 1304. The amendment to this law causes financial institutions to participate in mandatory settlement conferences with regard to working out alternatives to foreclosing on the home regarding reverse mortgages.

The new reverse mortgage law indicates a list of the items that can trigger a reverse mortgage foreclosure. These include:

failure to include a required certificate of occupancy on an annual basis
death of the named borrower
failure to pay real property taxes
failure to maintain homeowner’s insurance
failure to pay water bills and sewer bills
failure to make required repairs
failure to occupy the home as a principal place of residence

Conclusion

This new legislation provides homeowners who have reverse mortgages many of the same protections homeowners who have conventional mortgages have. In addition, it provides them with notice as to any of the possible items which could cause their home to go into foreclosure.

Filed Under: Foreclosure, Mortgage Modification, Reverse Mortgages Tagged With: foreclosure, reverse mortgages

Sue the Mortgage Loan Servicing Company

October 24, 2018 by Elliot S. Schlissel

Loan servicing companies can be sued. Loan servicing companies can make errors that have a negative impact on mortgage holders. Loan servicing companies can inaccurately calculate the amount due and owing by the homeowners. Sometimes they do not properly review mortgage modifications submitted by the homeowners. Upon request sometimes they provide inaccurate loan reinstatement information.

Good Faith

Mortgage holders are supposed to act in good faith. New York Civil Practice Law and Rules Section 8408 defines what is considered “bad faith” by a mortgage company.

Loan Servicing Companies

Loan servicing companies often hire inexperienced poorly paid individuals to act as their customer service representatives concerning the submission of mortgage modification applications. Sometimes they do not appropriately train their personnel with regard to the issues faced by homeowners submitting mortgage modification applications.

The process of submitting a mortgage modification usually involves the submission of information to the loan servicing company. Their customer service representatives therefore input the data into a computer program called an algarhythm. The algarhythm actually determines whether the homeowner qualifies for a mortgage modification. If the data is not properly put into the computer program the decision to deny a homeowner a mortgage modification can be based on an error made by the data processing person who inputed the data.

Foreclosure Defense Attorneys

Foreclosure attorneys experienced with the mortgage modification process are often able to help homeowners who have in the past had problems obtaining mortgage modifications.

Elliot S. Schlissel is a foreclosure lawyer representing homeowners for more than 3 decades. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Filed Under: Foreclosure, Mortgage Modification Tagged With: foreclosure, mortgage modification

Foreclosure Terms

September 25, 2018 by Elliot S. Schlissel

Foreclosure – This is the legal process in which a lender takes legal action to recover the balance due on a mortgage loan from the borrower. This takes place after the borrower has stopped making the mortgage payments. The purpose of the foreclosure is to force the sale of the home which is collateral for the loan.

Promissory Note – A promissory note is an IOU executed by the homeowner at the time they take out the mortgage. The mortgage creates a lien on their home which gives the financial institution a security interest protecting them in the event the homeowner defaults on making the payments under the promissory note.

Mortgagee – The mortgagee is the financial institution that makes the loan to the homeowner. The mortgagee can also be referred to as a lien holder.

Mortgagor – The mortgagor refers to the individual or family who has taken a loan out and put the house up they are buying as collateral for that loan.

Default – Default refers to a homeowner failing to make timely mortgage payments on the mortgage loan.

Lis Pendens – Lis Pendens is the filing of a notice by the financial institution that they are taking legal action regarding the title and ownership interest in a home. The filing of a Lis pendens has the impact of creating a cloud on the title of the home owned by the homeowner.

Secured Creditor – A secured creditor in a foreclosure case is the mortgagee, the financial institution that loaned the homeowner the money, so they could either buy the home or refinance the home.

Deed – This is the document which establishes who is the owner of a home. In States like New York this is the evidence of ownership of the home.

Deficiency Judgment – When a home is sold in a foreclosure sale, if the financial institution is not paid back all the money they are owed at the time of the sale, they can proceed against the homeowner to obtain a deficiency judgment for the balance due and owing the financial institution which was not satisfied by the sale of the home.

Elliot S. Schlissel, Esq. is a foreclosure lawyer representing homeowners throughout the Metropolitan New York area for more than 45 years. His law firm is dedicated to keeping homeowners in their homes. He can be reach for a free consultation at 800-344-6431 or by e-mail at Elliot@sdnylaw.com.

Filed Under: Foreclosure, Foreclosure Defense

Foreclosure Solutions

September 18, 2018 by Elliot S. Schlissel

Foreclosure Solutions There are a variety of solutions or ways to stop a foreclosure lawsuit from moving forward.

Modifying the Mortgage

A homeowner whose home goes into foreclosure can seek to have the mortgage modified. This action can be taken prior to the initiation of the foreclosure proceedings or after the foreclosure lawsuit starts. The homeowner by applying for a mortgage modification seeks to change the terms of their mortgage by lowering their monthly payments. In addition, the homeowner usually wants to have the arrears of their mortgage placed at the end of the mortgage.

Litigating the Foreclosure Lawsuit

The homeowner can fight the foreclosure lawsuit. The first step in doing this is filing an answer to the summons and complaint. The answer usually needs to be filed within 20 or 30 days after the homeowner is served with the summons. As part of the foreclosure defense the homeowner can make discovery demands upon the financial institution. The homeowner can seek to obtain documents and other information with regard to the underwriting of the mortgage application, the bank’s practices involving mortgages and other information related to the case. In addition, the attorney for the homeowner can engage in motion practice seeking to have the foreclosure lawsuit dismissed. If the financial institution has obtained a scheduled sale date for the homeowner’s home, an emergency Order to Show Cause can be brought in the New York State Court to obtain a stay of the foreclosure sale. In the order to show cause the homeowner must show mistakes in the foreclosure process by the attorneys for the financial institution or improper action taken by the bank.

Chapter 7 Bankruptcy

The homeowner can go into a United States Bankruptcy Court and file a bankruptcy. The filing of the bankruptcy gives the homeowner an automatic stay which goes into effect upon the filing of the bankruptcy case. The automatic stay freezes the foreclosure lawsuit in all State Courts.

Chapter 13 Bankruptcy

By filing a Chapter 13 bankruptcy the homeowner can catch up on the mortgage arrears under a 5 year plan. The homeowner can also seek to have the mortgage modified through a mortgage modifying procedure under the auspices of the bankruptcy court.

Sell the House

If the home has equity in it the homeowner can sell the house at any time during the foreclosure process.

Short Sale

If the homeowner’s home is worth less than the amount owed they can request the bank approve a short sale. A short sale means the bank will take all of the money from the sale in full satisfaction of what the homeowner owes Elliot Schlissel even though the amount of the proceeds from the sale will be less than the bank is entitled to.

Elliot S. Schlissel is a foreclosure defense lawyer. He has been helping homeowners keep their homes for more than 45 years. He can be reach for a free consultation at 718-350-2801, 516-561-6645 or 631-319-8262. He can also be contacted at Elliot@sdnylaw.com.

Filed Under: Foreclosure, Foreclosure Defense

Foreclosure Problems in New York

August 17, 2018 by Elliot S. Schlissel

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.

Filed Under: Foreclosure

Homeowner Moved Out of the Property

Foreclosure Lawsuit Dismissed

“Fair Debt Collection Practices Act”

Conclusion

The Stubborn Homeowner

Foreclosure Defense Lawyers

Hire an Experienced Foreclosure Defense Lawyer

Summary Judgment Application

The Judge’s Decision

Conclusion

The Judge’s Decision

Taxes and Insurance on the Home

Reverse Mortgage Foreclosure Default

Conclusion

Good Faith

Loan Servicing Companies

Foreclosure Defense Attorneys

How It Starts

Responding to the Foreclosure Proceeding

Foreclosure Settlement Conferences

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