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Representing Yourself in a Foreclosure

Representing Yourself

My office has been representing homeowners in foreclosure cases for more than 35 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 30 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.

Bank Fails to Show Standing to Maintain Foreclosure Lawsuit

Bank Fails To Show Standing To Maintain Foreclosure LawsuitIn 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-headshotElliot 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.

Foreclosure Action Dismissed: Bank Had No Standing

Foreclosure Action Dismissed: Bank Had No StandingIn 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.

schlissel-headshotElliot S. Schlissel is a foreclosure lawyer representing homeowners throughout the Metropolitan New York area for more than 35 years. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Technical Foreclosure Defenses

Technical-Foreclosure-Defenses

In almost all foreclosure situations the homeowners have applied for a mortgage, they have been approved by the financial institution, they obtained the mortgage, went to closing and purchased their home. Thereafter, the homeowners fell behind on their mortgage. So how can homeowners who borrowed the money and have not made the payments defend a foreclosure lawsuit? Most foreclosure defenses are based on the failure of the financial institution, its attorneys and/or its employees to comply with the many federal, state, local and other regulatory requirements involved in mortgage lending, recording of mortgages, servicing and administrating the mortgages, modifying the mortgages and providing the homeowners with the appropriate statutory notices they are entitled to. Lenders need to comply with many state and local ordinances andrules.

Issues Related to Closings

All financial institutions have disclosure requirements regarding what takes place at real estate closings. They are also laws and rules regarding predatory lending, fraud, unreasonable fees and other issues related to the underwriting of mortgages.

Standing Issues

Financial institutions have to produce the note. They need the original note before they can proceed with the foreclosure. Clear copies of the loan documents should be attached to the complaint. Homeowners should receive 30 days notice under Real Properties Actions and Proceedings Law Section 1304. There may be defective assignments of the mortgage. There may be late assignments of the mortgage. The individuals signing affidavits related to the foreclosure may not have had the appropriate authority to sign those affidavits. Some assignments of the mortgage may be invalid.

Mortgage Modifications

There are many issues that can occur with regard to the mortgage modification process. Sometimes financial institutions do not negotiate in good faith. They have an obligation in New York State to do this. Trial modifications sometimes are approved and then the permanent modifications are arbitrarily denied. Payments made under the trial modifications are sometimes kept by the financial institutions and homeowners are not given credit for those payments.

Litigation Issues

The Summons and Complaints in the foreclosure lawsuit must be properly served on the appropriate party. Homeowners are entitled to 90 days notice under the Real Property Actions and Proceedings Law before the foreclosure lawsuit is started. Financial institutions need to schedule foreclosure settlement mortgage conferences. They need to file affidavits of due diligence. The death of the homeowner can also create significant issues for the financial institution. Financial institutions also need to comply with the Fair Debt Collections Practices Act.

Legal Defenses and Affirmative Defenses

There are many types of defenses and affirmative defenses that can be alleged in foreclosures other than “I don’t owe the money”. The legal defenses need to be plead in the homeowner’s answer and they need to be backed up by detailed discovery demands forcing the financial institution to turn over all their books and records regarding the underwriting of the mortgage, the closing assignments of the mortgage and compliance with federal and state statutes. The way to win a case often involves investigating what the bank and their attorneys did and what they didn’t do. Finding the bank or their attorneys made a mistake in the mortgage or foreclosure process can be a basis for having the foreclosure lawsuit dismissed.

Elliot Schlissel

Elliot S. Schlissel, Esq. is a foreclosure lawyer having represented homeowners throughout the Metropolitan New York area for more than 3 decades. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Foreclosure Terms

 

  • Foreclosure termsForeclosure – 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 30 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.

Foreclosure Solutions

 

 

Foreclosure SolutionsThere 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 Schlisseleven 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 35 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.

Stop the Foreclosure Sale

stoptheforeclosuresaleimageThe purpose of this article is to discuss legal action that can be taken to stop a home from being sold at a foreclosure sale. A foreclosure lawsuit is the start of a process by the financial institutions to take back a home. At the end of the process the attorneys for the financial institution ask that a referee be appointed to sell the house. The referee thereafter advertises the house for sale. A sale date is established where the house will be sold on the courthouse steps. As the sale date approaches many homeowners dismay and give up. We strongly suggest this is not the way to deal with a sale date on a home. There are a variety of legal actions which can be taken to stop the foreclosure sale of a home.

Order to Show Cause

An emergency Order to Show Cause can be brought to the judge the foreclosure case is pending before. The Order to Show Cause can be served on the court requesting the court stop the sale from moving forward. If the Order to Show Cause is signed by the judge it is thereafter served upon the attorneys for the bank and referee. This will stop the sale of the house from going forward. If the judge in the New York State court does not sign the Order to Show Cause and stop the sale from moving forward there are other alternatives to stopping the sale of the house.

Chapter 13 Bankruptcy

Bankruptcies are brought in federal courts. Upon filing of a Chapter 13 bankruptcy the federal bankruptcy court issues a stay stopping all legal proceedings in the state court. The state court foreclosure action is frozen. Your house will not be sold. A Chapter 13 bankruptcy allows you to reorganize your finances, establish a plan to catch up on your mortgage and it keeps you and your family in your home.

Chapter 7 Bankruptcy

A Chapter 7 bankruptcy is also brought in a federal bankruptcy court. The filing of this bankruptcy stops the foreclosure in its tracks. The attorney filing the bankruptcy serves a copy of the bankruptcy notice on both the attorney for the financial institution and the referee who seeks to sell your home. This stops the sale of the house from moving forward.

The Chapter 7 bankruptcy is also known as a straight bankruptcy. It does not involve a plan to pay off the mortgage. It seeks to eliminate your personal liability on the mortgage. Therefore, if you owe $500,000.00 on the mortgage and your home is sold for $250,000.00 you will not have to pay the deficiency of the $250,000.00 the bank did not collect at the foreclosure sale. The filing of a Chapter 7 bankruptcy also ties up your case in federal court for months.

Mortgage Modifications

Once your case is tied up either by the Order to Show Cause , a Chapter 7 bankruptcy or Chapter 13 bankruptcy, a mortgage modification application can be submitted. Even if you were turned down in the past, you can still submit another mortgage modification application. God helps those who help themselves. All the bank can do is say no again if you submit another mortgage modification. However, during the mortgage modification underwriting process the bank generally will not move forward with trying to sell your home.

Foreclosure Defense Lawyers

Attorney Elliot Schlissel The best way to protect yourself and your family and keep your home is to hire an experienced foreclosure lawyer. The law office of Schlissel DeCorpo LLP has been representing homeowners for more than 3 decades. We have hundreds of cases pending throughout the courts in the Metropolitan New York area and our attorneys are in court virtually every day defending our clients and keeping them in their homes. You can call us for a free consultation at any of our three offices. Our phone numbers are 516-561-6645, 631-319-8262 and 718-350-2802. Our phones are monitored 7 days a week. We can be e-mailed at Elliot@sdnylaw.com. We aggressively represent our clients and do everything in our power to keep them in their homes.

Foreclosure Court Conferences

Stopping the Foreclosure Sale

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

Attorney Elliot Schlissel

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.

Foreclosure Strategies

deal with a foreclosure

The best way to deal with a foreclosure is to take aggressive legal action when the foreclosure lawsuit is started and at the same time actively participate in the mortgage modification process. By both fighting the lawsuit, suing the financial institution to set the mortgage aside and working with the financial institution and their attorneys regarding a mortgage modification provides the best possibility of successfully seeing to it the homeowners to continue to live in their homes.

Mortgage Modification

The homeowners can apply for a mortgage modification before they are sued in foreclosure. If the homeowners finds themselves in financial difficulty they should immediately apply for a mortgage modification and submit a hardship letter to the bank explaining their financial difficulties. A mortgage modification can reduce monthly mortgage payments the homeowner has to make and in addition arrears owed to the financial institution can be placed at the end of the mortgage.

Litigating the Foreclosure Lawsuit

When served with the summons and complaint in a foreclosure lawsuit the homeowners should immediately retain competent experienced foreclosure defense lawyers. The attorneys for the homeowner should put in an answer including numerous affirmative defenses and counterclaims seeking to set the mortgage aside. Discovery applications requesting the financial institution to turn over all relevant documents related to the application, underwriting and processing of the mortgage should be instituted.

Foreclosure Sale

If the homeowner’s home is listed for sale in a foreclosure, the homeowner has 2 options. An emergency order to show cause can be brought to the court where the foreclosure is pending requesting the foreclosure sale be stopped. Another route the homeowner can take is to file a bankruptcy in the United States Bankruptcy Court. The filing of a bankruptcy causes the federal court to issue an automatic stay of all foreclosure proceedings. This stops the foreclosure in the state court. The bank’s lawyers and the referee appointed to sell their home are ordered to stop taking any legal action to move forward with regard to the sale of the homeowner’s home.

Types of Bankruptcies

There are basically three (3) types of bankruptcies the homeowner can utilize. Chapter 13 and Chapter 11 bankruptcies set out plans that keep the homeowners, if they have the appropriate cash flow, to become current on their mortgage. A Chapter 7 bankruptcy simply eliminates all of the homeowner’s debt.

Don’t Give Up

It is said that God helps those that help themselves. Sometimes homeowners when faced with foreclosure become depressed. They assume there is nothing they can do and they take no action. This Attorney Elliot Schlisselis the wrong approach. Faced with their home going into foreclosure homeowners should hire competent foreclosure defense counsel. Our office has helped hundreds of homeowners throughout the Metropolitan New York area continue to stay in their homes. We can be reached for a free consultation at our offices in Nassau, Queens and Suffolk Counties at the following phone numbers: 516-561-6645, 718-305-2802 or 631-309-8262. We can be e-mailed at Elliot@sdnylaw.com. We have been keeping homeowners in their homes for more than 3 decades!

Predatory Lending as a Defense in Foreclosure Proceedings

Notice of Foreclosure and House Keys

Predatory lending refers to a variety of unfair or deceptive practices sometimes engaged in by financial institutions. Financial institutions that engage in predatory lending often target low income individuals, the elderly, and minority individuals who are concerned they will not be able to secure a mortgage. Predatory lending is against the law in the State of New York.

Tactics Used by Predatory Lenders

There are a variety of indicators that an individual has been a victim of predatory lending. The following is a list of some predatory lending tactics:

  • Guaranteed loan approvals without credit checks;
  • Pressuring homeowners to sign documents without giving them enough time to carefully review these documents;
  • Door-to-door solicitations.

Predatory Lending a Defense to Foreclosure Cases

If you have been the subject of predatory lending you may have a legal defense in the event your home goes into foreclosure. The courts in New York have dismissed foreclosure cases based on lenders being involved with predatory lending tactics. The New York Banking Law prohibits lenders from engaging in: “High cost home loans”.

Fighting Predatory Lending Mortgages

Attorney Elliot Schlissel

The foreclosure lawyers at of Schlissel DeCorpo LLP for more than 3 decades have been representing homeowners who have been the subject of predatory lending. Feel free to contact our Nassau, Suffolk or Queens offices at the following phone numbers to discuss your situation: 516-561-6645, 631-319-8262 and 718-350-2802. My e-mail address is: Elliot@sdnylaw.com.

Foreclosure Defense in Valley Stream, Lynbrook, Baldwin, Malverne, Freeport, Oceanside, Long Beach, Elmont, Lakeview, West Hempstead, Hempstead, Merrick and Bellmore, New York

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