Foreclosure Defense

Foreclosure Defense Facts: Keeping Your Home When Facing Foreclosure – Part II

January 17, 2015 by Elliot S. Schlissel

Do I Need A Lawyer To Help Me Litigate The Foreclosure Case?

The answer to this question is yes. In theory you can submit an Answer and represent yourself. However the law firm representing the bank usually brings hundreds of lawsuits against consumers. They usually have an expertise in foreclosing on homes and having the homes sold at auction on the courthouse steps. If you do not hire a lawyer, you will find yourself in an extremely disadvantaged situation. You will not understand the laws, the court rules, and the procedures involved in fighting a foreclosure case. Retaining a law firm who has fought hundreds of cases and has a successful record such as our law firm puts you in the best situation to keep your home, obtain a mortgage modification, and/or get the foreclosure lawsuit dismissed.

You Can Obtain A Mortgage Modification

You will have the opportunity to modify your mortgage under the auspices of the mandatory mortgage modification conference. New York requires, in all foreclosure lawsuits, a mandatory settlement conference on residential mortgage foreclosure cases. At the foreclosure settlement conference you will have an opportunity to apply for a mortgage modification. Even if you have already been turned down, you can apply for another mortgage modification under the supervision of the referees in the mandatory foreclosure settlement conference part in the courthouse.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: defective foreclosure lawsuits, defective mortgages, financial crisis, foreclosure crisis, foreclosure defense lawyers, mortgage modification attorneys

Appellate Court Approves Remedy for Lender’s Bad Faith

January 6, 2015 by Elliot S. Schlissel

The Appellate Division of the Second Department, an appeals court, has recently rendered a decision establishing remedies for homeowners when their lenders fail to act in good faith during the course of mandatory foreclosure settlement conferences. The appellate court in the case of US Bank National Association v. Williams upheld the lower court decision which cancelled interest from accruing and also prevented the bank from charging the debtor with their legal fees during the foreclosure conference period.

Homeowners’ Remedies

This case gave homeowners remedies to use against banks when they act in bad faith during foreclosure conference negotiations.

In this case, the bank continually asked the borrower for further documentation during the course of the foreclosure settlement conferences. However, it turned out even though the bank was asking for more and more documentation during the 13 month period, they had a ban which would have prevented them from granting a mortgage loan modification.

The Appellate Court’s Decision

The appellate court stated in its decision, “under these circumstances, the Supreme Court providently exercised its discretion in finding that US Bank was not entitled to collect interest accrued as a result of its wrongful conduct.” Under Civil Practice Law and Rules section 3408(a)(f), “both the plaintiff and defendant shall negotiate in good faith to reach a mutually agreeable resolution, including a loan modification, if possible.”

The court stated in its decision, attorneys representing mortgage holders have been complaining that in many cases financial institutions refuse to offer mortgage loan modifications but still come to the mandatory foreclosure court conferences and demand the homeowners provide them with detailed documentation to underwrite mortgage modifications. During these periods of time, the interest and the attorneys fees is accruing on the homeowner’s mortgage. Foreclosure defense lawyers have been continually asking courts for sanctions against financial institutions when they act in bad faith concerning these mandatory mortgage modification court conferences.

Conclusion

There exists remedies for homeowners when they are dealing with banks who refuse to negotiate mortgage modifications in good faith.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: bad faith, defective foreclosure lawsuits, foreclosure defense attorneys, foreclosure defense lawyers, mortgage modifications

Foreclosure Defense Strategies

December 30, 2014 by Elliot S. Schlissel

Foreclosure Solutions

Homeowners must understand a foreclosure lawsuit is simply a lawsuit between a bank and the homeowners. Homeowners have rights and banks have an extremely heavy burden to meet to be successful in a foreclosure lawsuit. When a homeowner is served with a Summons and Complaint, he or she must submit a written Answer to opposing counsel and file the Answer with the court. The homeowner should be asserting affirmative defenses and counterclaims against the financial institution in his or her Answer. The homeowner can use the foreclosure lawsuit to obtain leverage against the bank and put pressure on them to grant a mortgage modification.

The Answer

When served with the foreclosure Summons and Complaint, the homeowner has twenty days to respond if served personally, and thirty days to respond if served by any other means other than personal service. The homeowner can either submit an Answer or in certain circumstances, make a motion to dismiss the lawsuit right off the bat. It is important to remember that lending institutions and foreclosure legal action by them are extremely heavily regulated by State, Federal and local laws and regulations. Foreclosure defense attorneys utilize these regulations of financial institutions in developing defenses for homeowners. In addition to making a motion to dismiss, and submitting defenses, a homeowner can submit what are called affirmative defenses. These are technical legal challenges on substantive grounds with regard to issues related to the foreclosure lawsuit. Examples of affirmative defenses are: lack of standing, robo-signing, dual tracking, failure to document the loan, improper notice, improper service, fraud, loan modification issues and many other affirmative defenses.

Countersuits

Counterclaims can be brought against financial institutions seeking monetary damages. These countersuits can be based on allegations the financial institution caused injury to the homeowner. There are also statutory violations and statutory penalties which can be brought against the financial institution. Unique facts related to each homeowner’s situation can be molded into an appropriate Answer with affirmative defenses and countersuits against the bank.

Discovery

After the Summons and Complaint is served and an Answer is submitted, a lawsuit enters what is called the discovery phase. During this phase the attorneys for the homeowner can force the bank to turn over documents, bank records, underwriting records, and other information to help the homeowner with his or her defenses. If the bank’s attorneys refuse to comply with discovery demands, motions to dismiss the lawsuit can be made to the court.

Developing The Response To The Summons and Complaint In The Foreclosure Lawsuit

Some law firms who handle one or two foreclosures a year look at a research book and submit a standard response in their answer. This is a standardized document not tailored to the specific needs of the homeowner. Our law firm, which has represented hundreds of homeowners, does not use boiler plate responses. Each and every foreclosure lawsuit is analyzed and specific affirmative defenses and countersuits related to the circumstances in each and every case are submitted by our law office.

Foreclosure Settlement Conferences

New York State has mandatory foreclosure settlement conferences required to be attended by the attorney for the homeowner and counsel for the lender. At these settlement conferences both parties are expected to negotiate and act in good faith. Referees at these conferences try to motivate the financial institutions to grant the homeowner a mortgage modification. Even if the homeowner has been turned down several times before, he or she can still use the leverage of the mandatory foreclosure court conference to obtain a mortgage modification.

Motion for Summary Judgment By The Banks’ Lawyers

In almost every foreclosure lawsuit, at some point, the attorneys for the financial institution bring a motion for summary judgment. This motion basically states that there are no issues of fact involved in the case, no valid defenses and the bank should be entitled to a judgment of foreclosure without a trial or further hearing. This is where the affirmative defenses and discovery demands by the homeowner come into play. The affirmative defenses can be utilized to argue to the court what the bank has done wrong. The failure of the bank to provide necessary documents and other requested information by the lawyer for the homeowner can help to defeat the summary judgment motion.

Conclusion

Banks do not always win foreclosure lawsuits. The legal system is designed to see to it financial institutions don’t take advantage of homeowners. Our law firm’s single goal is to help homeowners fight the foreclosure, keep their home, and obtain mortgage modifications. We have been successfully representing homeowners for more than 45 years.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: defective foreclosure lawsuits, foreclosure attorney, foreclosure defense lawyers, mortgage modification

Predatory Loan Issues

December 25, 2014 by Elliot S. Schlissel

BAC Home Loans Servicing had brought a foreclosure lawsuit against Ramsay. BAC had moved for summary judgment claiming there were no issues of fact and therefore they should be entitled to summary judgment without the need for a trial. They also sought to strike Ramsay’s Answer and have a referee appointed to compute the sums due and owing BAC under the terms of the mortgage.

Ramsay contended BAC’s summary judgment application should be denied. Ramsay claimed there was predatory lending and discriminatory practices involved in making the mortgage by the original lender, Madison Home Equities.

Justice Bernard Graham found BAC did not establish a prima facie case allowing them to obtain summary judgment in their foreclosure proceeding. Judge Graham had questions concerning the relationship between Madison Home Equities and BAC. A question arose as to whether their business relationship would support the allegations made by Ramsay concerning predatory loan practices. In addition the court found Ramsay had offered plausible, reasonable evidence BAC’s decision to deny the mortgage modification was based on incorrect calculations by them. Judge Graham found denial of the mortgage modification may have been unreasonable and Ramsay may have been entitled to said mortgage modification.

Conclusion

The judge carefully reviewed the facts of this case and rendered an important decision supporting homeowner’s rights in this foreclosure case.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: defective foreclosure lawsuits, mortgage modification, New York foreclosure attorney, New York foreclosure defense lawyers, predatory lending

How to Qualify For a Mortgage

December 23, 2014 by Elliot S. Schlissel

To watch today’s video blog, please click on the link below:

http://youtu.be/S1VQNNwAYj0

Elliot S. Schlissel is a foreclosure defense attorney. Elliot and his associates have been helping homeowners stay in their homes for more than 45 years. The lawyers at the Law Office of Elliot S. Schlissel help their clients obtain mortgage modifications, defend foreclosure lawsuits, and counter sue banks. Elliot can be reached for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: foreclosure defense lawyers, mortgage, Mortgage Modifications attorney, real estate

Bank Has No Standing, Summary Judgment Denied

December 19, 2014 by Elliot S. Schlissel

HSBC Bank, USA, brought a foreclosure case against Thomas in Kings County Supreme Court. Thomas submitted an Answer in the foreclosure legal action with affirmative defenses. The affirmative defenses stated HSBC was not the owner of the note and the mortgage at the time the lawsuit was initiated. Therefore, they lacked standing to bring the lawsuit.

Thomas had taken out several mortgages. HSBC, in its summary judgment motion, claimed it had standing as it was assigned Thomas’s mortgage pursuant to an assignment by MERS. It also claimed it was in possession of the note at the time the action was commenced. They claimed since Thomas had not made his payments on the notes which were secured by the mortgage on the property, they had the right to initiate the lawsuit and they should be granted summary judgment. (Summary judgment grants the moving party an order for the relief requested in the complaint without the need for a trial).

Notes Not Assigned

Ms. Thomas, in her opposition to the summary judgment motion, claimed the notes were not assigned. She claimed the notes were not negotiated since there was an allonge (which is an amendment to a note) which did not comply with the Uniform Commercial Code section 3-202(2). This section of the Uniform Commercial Code requires an allonge be firmly attached to the note.

Supreme Court Justice Wayne Saitta agreed with Ms. Thomas’s argument. He found the assignment of the mortgage was insufficient as it only assigned the mortgage and did not include the notes and underlying debt. The judge found HSBC did not establish the note was negotiated prior to the commencement of this action. The negotiation of the note required physical delivery of the note. Judge Saitta ruled HSBC did not have standing to bring the lawsuit and summary judgment motion striking Thomas’s answer and affirmative defenses was denied.

Conclusion

If you are sued, it is important to have a detailed review of all of the facts and circumstances in the case with an experienced foreclosure defense lawyer. There are many defenses available in foreclosure lawsuits. There are numerous statutes, state and federal laws which protect consumers and mortgage holders.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: defective foreclosure lawsuits, foreclosure defense attorneys, New York foreclosure defense lawyers, summary judgment motion

Foreclosure Proceeding Dismissed Due To Lack of Standing

November 10, 2014 by Elliot S. Schlissel

To watch today’s video blog, please click on the link below:

http://youtu.be/_fWe-dJiark

Elliot S. Schlissel is an attorney who has extensive experience in representing homeowners throughout the Metropolitan New York area for the past 45 years. He and his associates are available for consultation by contacting the Law Offices of Schlissel DeCorpo at 516-561-6645, or 718-350-2802 or by email to schlissel.law@att.net.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: defective foreclosure lawsuits, foreclosure attorney, New York foreclosure defense lawyers

Foreclosure Law

October 31, 2014 by Elliot S. Schlissel

In New York State there is a statute known as the New York Real Property Actions and Proceedings Law section 1304. This statute, in June of this year, was extended for five additional years. This section of the law requires a financial institution provide “at least 90 days before a lender, an assignee, or a mortgage loan servicer commences legal action against the borrower…such lender, assignee or mortgage loan servicer shall give notice to the borrower”.

90 Days Notice to Homeowner

The section requires the notice to the homeowner provide a warning they are on the verge of losing their home in a foreclosure lawsuit. In addition, this notice requirement gives key information concerning how long the homeowner is in default on their mortgage and how much is due and owing on their mortgage. The law requires service of this notice be given to the homeowner and they be given a reasonable opportunity to take action to save their home such as by negotiating a mortgage modification.

Prerequisite for Foreclosure Lawsuit

The service by the financial institution and/or its representatives of the notice under this section of the law is a necessary prerequisite before a foreclosure lawsuit can be initiated. In the event the financial institution fails to fully comply with this requirement, a homeowner in a foreclosure proceeding can move to have the foreclosure case dismissed.

Settlement Court Conferences

In June of this year, the settlement court conference requirements in foreclosure lawsuits was also extended for five years. New York Civil Practice Law and Rules section 3408 had established a mandatory settlement court conference requirement in all foreclosure lawsuits. Upon the service of a summons and complaint in a foreclosure lawsuit, the Supreme Court within twenty days of proof of filing of this foreclosure lawsuit, is required to schedule a mandatory foreclosure conference. The purpose of the foreclosure court conference is to have settlement discussions between the homeowner and the representatives of the financial institution. New York Civil Practice Law and Rules section 3408 requires both the homeowner and the representative of the financial institution negotiate in good faith to reach a solution to the foreclosure case by having the mortgage modified. It is the court’s responsibility to see to it both parties negotiate in good faith and there are not unreasonable delays caused by either party.

Lenders Not Compelled To Provide Mortgage Modifications

Unfortunately, even though a lender must attend a foreclosure court conference they have no obligation other than negotiate in good faith. Simply stated, they do not have to grant a mortgage modification. They can deny it for any reasonable reason. Unfortunately for homeowners, courts cannot force a lender to grant a mortgage modification under New York law.

Elliot S. Schlissel is a foreclosure defense attorney helping homeowners stay in their homes throughout the Metropolitan New York area.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: foreclosure, foreclosure defense, foreclosure defense lawyers, New York foreclosure attorney

Judge Eliminates All Past and Future Interest in a Foreclosure Lawsuit Due To Bank’s Bad Faith

October 25, 2014 by Elliot S. Schlissel

LaSalle Bank had brought a foreclosure legal action in the Supreme Court in Suffolk County. In its pleadings the bank claimed they were both the owner and holder of the note which was secured by a mortgage. The defendant in the case did not deny he had defaulted in making 4 mortgage payments. His default was directly related to the fact he was in jail. However, he brought an application to the court requesting all interest on the foreclosed home be eliminated. He claimed LaSalle Bank had unreasonably delayed the legal proceedings in the foreclosure action. They had requested numerous duplicative document demands.

Numerous Duplicative Document Production Requests

The case was heard before Justice Jeffrey Arlen Spinner sitting in the Supreme Court in Suffolk County. Justice Spinner found there were numerous duplicative document production demands. The homeowner had appeared 24 separate times for mandatory settlement conferences. Judge Spinner found LaSalle Bank had not complied with HAMP guidelines. In addition, he found they failed to negotiate with the homeowner in good faith. Justice Spinner found due to LaSalle’s bad faith and the bad faith of their servicing agents, all present, past and future interest on the mortgage in this foreclosure lawsuit was to be eliminated.

Conclusion

Banks need to cooperate to make the HAMP work or they will be punished by judges.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: bad faith, defective foreclosure lawsuits, foreclosure defense attorneys, mortgage modification attorneys, New York foreclosure defense lawyers

Proper Time to Rescind a Contract

October 15, 2014 by Elliot S. Schlissel

Please click on the link below to watch today’s video blog:

http://youtu.be/zUgSCQYjSG4

Elliot Schlissel is a foreclosure defense attorney. He can be reached at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: defective foreclosure lawsuits, defective mortgages, foreclosure defense, New York foreclosure attorney

Foreclosure Defense Facts: Keeping Your Home When Facing Foreclosure – Part II

Appellate Court Approves Remedy for Lender’s Bad Faith

Foreclosure Defense Strategies

Predatory Loan Issues

How to Qualify For a Mortgage

Bank Has No Standing, Summary Judgment Denied

Foreclosure Proceeding Dismissed Due To Lack of Standing

Foreclosure Law

Judge Eliminates All Past and Future Interest in a Foreclosure Lawsuit Due To Bank’s Bad Faith

Proper Time to Rescind a Contract

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