The Summons and Complaint
A foreclosure lawsuit is initiated by the attorneys for the bank by drafting a Summons and Complaint. It is then filed with the County Clerk’s Office in the County in which the property is located and the attorneys for the bank receive an index number and a filing date which is attached to the front of the Summons. The bank attorneys then hire a process server who serves the Summons and Complaint on the homeowner.
If the homeowner is served personally, the homeowner has twenty (20) days to respond by submitting a written Answer. If the homeowner is served by any other means, the homeowner has thirty (30) days to respond to the Summons and Complaint by submitting a written Answer.
The response to the Summons and Complaint is called an Answer. An Answer can contain admissions or denials. It can also contain defenses and affirmative defenses. As part of the Answer the homeowner can counter sue the bank for various relief including setting the mortgage aside. An experienced foreclosure lawyer will often put 100 to 120 paragraphs in the Answer.
Representing Yourself
There is an expression: “The man who represents himself has a fool for his lawyer”. Do yourself a favor, hire an experienced foreclosure defense lawyer to represent you and your family if you are facing a foreclosure. The attorneys for the banks generally have extensive experience in bringing foreclosure lawsuits. They often bring more than 100 of these cases per month. The bank attorneys know how to process the foreclosures and know the ins and outs of the court system. You need someone on your side at least as good as them!
The law firm of Schlissel DeCorpo LLP has been helping families deal with mortgage and foreclosure problems for more than 30 years. We can be reached at 718-350-2802, 516-561-6645 or 631-319-8262 or by e-mail at info@sdnylaw.com.
LAWYERS AND FORECLOSURE DEFENSE
Before you represent yourself or hire an attorney, carefully look into who are the best foreclosure defense lawyers. Attorneys are expensive. To become a lawyer in the state of New York, you need a four year undergraduate degree. Thereafter apply to law school, be accepted and attend three more years of education in the law in an approved law school. Then, after graduating from law school, the individual must take the bar exam, pass it, go through an ethics process and then be admitted to the bar. The process between applying to college, graduating, going through law school and get admitted to the bar takes approximately eight years. When that individual gets out of law school, it then takes many years until they develop the expertise necessary to litigate effectively in the courts of New York.
TYING THE CASE UP IN COURT
Even if a homeowner does not have a provable defense to the foreclosure lawsuit, a skilled foreclosure defense lawyer can tie up the case up in court from anywhere from three to five years. During this time the homeowners are living in their home without making any mortgage payments.
WHAT TO LOOK FOR IN A FORECLOSURE DEFENSE LAWYER
What to look for in a foreclosure lawyer is how much experience the attorney has representing homeowners. The second thing to look for is how many foreclosure cases the law firm has handled? Have they obtained loan modifications for homeowners?
Have they published articles on issues facing homeowners whose homes have been foreclosed? Do they have a staff to back them up? Finally, what will hiring that foreclosure defense attorney cost you and what legal services are being provided?
The law office of Schlissel DeCorpo have been defending homeowners regarding mortgage issues for more than three decades. They can be reached at 516-561-6645, 718-350-2802, 631-319-8262 and 914-998-0080 or emailed at Elliot@sdnylaw.com.
HIRING A FORECLOSURE DEFENSE ATTORNEY
A family’s home is usually their single largest asset. Homeowners whose homes are taken back by the financial institution usually have their credit negatively impacted upon. This often will prevent them from being able to purchase another home in the near future. This means the former homeowners will be living in apartments for a considerable period of time.
FORECLOSURE DEFENSES
There are many different potential defenses to a foreclosure lawsuit. There are consumer protection laws, there are law’s regulating financial institutions. There are both federal, state, and local rules which financial institutions need to follow and many other statutory and case law defenses which have been developed over the years.
The legal process involving filing documents with the court and making effective legal arguments is quite complicated. The financial institutions hire very experienced foreclosure attorneys who have usually handled thousands of these types of cases. This gives the financial institutions, which have unlimited funds to hire lawyers, a distinct advantage if a homeowner seeks to represent themselves.
Individuals who are in the military are subject to additional rights and protections to avoid losing their homes in foreclosure.
LOAN MODIFICATIONS
A homeowner can apply on their own for a loan modification. However, loan modifications brought under the supervision of a judge can put pressure on the financial institution to be more reasonable with the homeowner.
BANKRUPTCY
Filing either a Chapter 7 or Chapter 13 bankruptcy in the United States Bankruptcy Court is another alternative which should can be taken into consideration by a homeowner. Whether to litigate in the state court in New York or in the federal court involves questions concerning financial circumstances, the homeowner’s ability to make payments, the current financial situation of the homeowner, the quality of their employment, and various other issues.
The law office of Schlissel DeCorpo have been defending homeowners regarding mortgage issues for more than three decades. They can be reached at 516-561-6645, 718-350-2802, 631-319-8262 and 914-998-0080 or emailed at Elliot@sdnylaw.com.
Information in the Emergency Eviction and Foreclosure Prevention Act
The covid-19 Emergency Eviction and Foreclosure Prevention Act created a standardized hardship declaration form which tenants can submit to their landlord to prevent and halt an eviction if they have a financial hardship related to or during covid-19 that prevents them from being able to pay their rent. In addition they can qualify if someone in their household is at an increased risk of illness due to covid-19.
The form gives tenants the ability to declare a financial hardship if they have lost income. In addition if they have increased healthcare, childcare or other family expenses, they can also declare a hardship. In the event they have been unable to obtain meaningful employment because of circumstances related to covid-19 they also can qualify. Funds also be allocated to help them with moving expenses.
A tenant who obtains a copy of the standardized hardship declaration form should return it to their landlord or to the court to prevent a landlord from filing an eviction. This can be used to suspend an eviction proceeding already underway until May of 2022.
Protection Against Foreclosure and Tax Lien Sales
for Residential Property Owners
The statute also gives homeowners protections against a foreclosure sale of their home and tax lien sale of their home. This applies to residential property that involves 10 or fewer apartment units. The residential property must include the individuals primary place of residence.
Property owners will be able to obtain protection from foreclosure and tax lien sales of their homes by filing a standardized hardship declaration form with their mortgage lender or with the court. The property owners must declare in this form under penalties of perjury that they have a financial hardship. In addition, they must allege this financial hardship prevents them from paying their mortgage or property taxes related to lost income. This includes reduction in rent collections, increased expenses or their inability to obtain meaningful employment. Landlords with 10 or more rental units are excluded from these protections.
Negative Reporting and Discrimination Extending Credit
The law protects a property owner from credit discrimination too if they are behind on their mortgage payments or they have received a stay of mortgage foreclosure sale, tax foreclosure or tax lien sale on their property.
The hardship declaration can also be used to avoid credit discrimination based on mortgage arrears on the property in which they reside. This statute gives new protection to single family residences, co-ops, owner occupied multifamily primary residences and primary residences. This legislation will also forbids negative reporting to any credit agency related to a mortgage foreclosure proceeding or tax foreclosure proceedings.
Elliot Schlissel, his partner and his associates help homeowners facing foreclosure, bankruptcy or facing financial difficulties . They can be reached at 800-344-6431 or by email at info@sdnylaw.com
