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Elliot S. Schlissel is a foreclosure defense attorney. He can be reached by telephone at 516-561-6645 or 718-350-2802, or by email to schlissel.law@att.net.
Supreme Court Refuses to Appoint Temporary Administrator
September 18, 2014 by
Wells Fargo Bank had brought a foreclosure proceeding in August 2013 against Grotzer. Grotzer died on January 22, 2013. He was the sole owner of the property and the only person who signed the note and mortgage. Wells Fargo brought an application in the Supreme Court requesting the appointment of a temporary estate administrator. They took this action to avoid going to the Surrogate’s Court to appoint an administrator of the decedent’s estate. Their action was for the sole purpose of continuing their lawsuit for foreclosure of the mortgage.
Justice James Pagones sitting in the Supreme Court of Dutchess County denied their request. The judge took the position that Wells Fargo should commence a proceeding in the Surrogate’s Court under Surrogate’s Court Procedure Act section 1001 with regard to this case. The shortcut Wells Fargo’s attorneys sought to take was inappropriate. Even though this might delay the foreclosure case somewhat Wells Fargo still had to follow the appropriate legal procedures to maintain their foreclosure lawsuit.
Elliot S. Schlissel is a foreclosure lawyer representing homeowners throughout the Metropolitan New York area. He regularly sues banks to set aside mortgages and help keep his clients in their homes.
Chinese Home Buyers Invade the United States
September 14, 2014 by
Chinese home buyers are buying billions of dollars of real estate in the United States. They are now the largest international investors in the American real estate market. It is estimated Chinese home buyers spent in excess of $22 billion in real estate acquisitions during the past twelve months within the States of New York, California and Washington. California is the state with the most activity by Chinese home purchasers. This is partly because it is the closest state to mainland China. In San Francisco and Oakland, Chinese real estate investors have had a significant impact on inflating real estate prices.
Chinese Home Purchasers in New York
Chinese real estate investors are especially focused at buying high end properties in Manhattan. A significant portion of these acquisitions of real estate are not to be lived in by the purchasers. They are simply investments in property in the United States. To Chinese investors, owning property in New York is a safe haven for their money. These real estate purchasers also look at purchasing property in the United States as a means of diversifying their assets. A significant number of the Chinese people investing in the United States never see the property or actually come to the United States for the transaction. The transactions are handled through middle men on behalf of the Chinese purchasers. It is estimated less than 40% of the Chinese real estate purchasers in the United States involve families who plan on living on a full time basis in these homes.
Elliot Schlissel is a foreclosure defense lawyer. He represents New Yorkers whose homes are foreclosed on. He has been successful in keeping his clients in their homes, and in many situations, helping them obtain mortgage modifications. His office offers free consultations with regard to foreclosure issues.
How To Spot Bank Fraud – Part II
September 12, 2014 by
The Notarization of the Assignment Document
The assignment document needs to be notarized. The first thing you should check is if the date of the notarization is the same date as the date the person with the power of attorney, or the alleged officer of the financial institution executed the assignment. The second item you should look for is whether the notarization is from a notary in the same state as the individual who executed the assignment on the date of its execution. The notarization should have taken place on the same day and at the same location as the signature of the person making the assignment for the financial institution.
Is The Bank Still in Business?
During the past ten years, numerous mortgage companies, financial institutions and banks have gone bankrupt, have been dissolved, have merged and/or have been acquired by other financial institutions. If the bank or financial institution no longer exists, how could an employee of an institution that no longer exists execute an assignment? In these cases there is usually some sort of fraud which took place.
If the financial institution indicates there was a document attached to the note or affixed to the note, check to see if there are staple marks. If no staple marks exist on the document it is either not the original document or there was nothing actually attached to the document. If the financial institution is claiming the note is lost, check to see there has been an affidavit submitted explaining in detail the circumstances and events related to the loss of the original note. Be careful to make sure the person signing the affidavit actually was in a position to have personal knowledge about the loss of the note.
Elliot Schlissel is foreclosure defense lawyer. He has helped scores of New Yorkers fight foreclosure lawsuits and stay in their homes.
Bank Failed to Follow Notice Requirements
September 10, 2014 by
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Elliot S. Schlissel is a foreclosure defense attorney. He can be reached at 1-800-344-6431 or by email at schlissel.law@att.net.
How To Spot Bank Fraud – Part I
September 4, 2014 by
The purpose of this article is to acquaint homeowners with spotting obvious bank fraud related to foreclosure lawsuits. In a case where there is a mortgage on a home, it is necessary for the bank to prove to the court that as of the date of the initiation of the foreclosure lawsuit it was in possession of the original note and mortgage. In addition, the bank must be able to prove to the court that as of the date of the initiation of the foreclosure lawsuit it owned the mortgage.
Checking to See If An Assignment is Valid
The following is a list of ways of investigating whether the assignment to the bank which has initiated the foreclosure lawsuit against you was in conformity to New York State law.
The first thing you should do is look at the signatures on the assignment document. Next to the signature should be the date of the assignment. Check to see the date of the assignment was earlier in time than the date the bank initiated the foreclosure lawsuit. The date on the top of the assignment document should not be different from the date it was executed at the bottom of the document.
Check to see if the person executing the assignment has executed it as “attorney in fact.” This means the person executing the assignment was executing it under power of attorney. In that case there should be a power of attorney related to this assignment. The bank should be able to produce the power of attorney so you can ascertain as to whether the person who executed as attorney in fact actually had power of attorney on the date he or she executed the document. If the person with the power of attorney was not an employee of the financial institution which was the holder of the assignment he or she may not have had the appropriate authority to execute the assignment.
Understanding How Bank Lawyers Operate in Foreclosure Cases
August 29, 2014 by
The law firms which represent financial institutions in foreclosure legal actions sometimes process thousands of foreclosure cases per year. These law firms are designed to operate efficiently to obtain a maximum profit level on the foreclosure cases they handle. They are most profitable and most successful with regard to their foreclosure litigation when they don’t run into a foreclosure defense lawyer who has a detailed understanding of the legal process involved in foreclosures, the defenses which can be plead and the problems financial institutions have in prosecuting foreclosure lawsuits. It is most profitable for the bank lawyers processing foreclosures when they can move forward with their lawsuit without significant opposition from the homeowners and their counsel.
When my office raises twenty or more affirmative defenses and countersues financial institutions involved in foreclosure lawsuits, it creates numerous problems for the financial institutions and their attorneys. To start with, the bank lawyers go from aggressive moving party to defending their clients’ practices, producing documents and explaining to the court whether all aspects of the mortgage transaction were legal, ethical and appropriate. In numerous cases in which our law firm is involved, we take the banks and their attorneys to task. Sometimes these cases get put aside for years by the bank’s attorneys. In some of the cases the banks simply move to dismiss their own lawsuit.
Mortgage Modifications
By submitting an aggressive, well thought out series of affirmative defenses and counterclaims, the banks are put back on their heals. One of the ways they deal with these cases is by entering into negotiations for mortgage modifications. Sometimes the pressure of an aggressively litigated foreclosure defense results in the bank offering very favorable mortgage modifications as a means of ending the lawsuit.
Conclusion
If you are sued in a foreclosure, hire an experienced, dedicated foreclosure attorney to protect your rights and prevent the financial institution from taking advantage of you.
Predatory Lending Explained
August 26, 2014 by
There have been numerous newspaper articles, stories on television and internet articles concerning predatory lending issues. There seems to be a lot of confusion as to what constitutes predatory lending.
Predatory lending refers to practices engaged in by banks, mortgage companies, mortgage brokers, real estate agents and title representatives which involve dishonesty. Most consumers do not have an expertise regarding obtaining consumer mortgages for residential property. Predatory lending practices take advantage of the lack of knowledge prospective homeowners have when they seek to obtain mortgages to buy a home or refinance an existing mortgage. Predatory lending schemes can violate both federal and New York State law.
Examples of Various Predatory Lending Practices
- Preparing paperwork for homeowners for loans they cannot afford to make the payments on.
- Obtaining false inflated appraisals on homes.
- Convincing prospective homeowners to lie on their applications with regard to inflating their income.
- Engaging in racial profiling and convincing minority individuals to take out sub-prime mortgage loans.
- Charging excessive fees and expenses for preparation of the paperwork with regard to a mortgage application.
- Quoting one interest rate or set of terms regarding a mortgage and then later charging a higher interest rate or additional fees and charges.
Auditing Loan Documents
One of the methods to determine whether predatory lending was involved in a transaction and/or whether the loan and the closing on the transaction were handled properly is to obtain a loan audit. Loan audits can provide documentation with regard to predatory lending issues, violations of truth in lending laws, violation of New York State banking laws, fraudulent practices and other unethical or illegal aspects of the mortgage transaction.
Loan audits can show a variety of improper and bad practices engaged in by a financial institution and/or other individuals involved in the mortgage loan process. Among other things, the mortgage audit can reveal fraud on behalf of the financial institution and/or its employees or agents, misrepresentation with regard to the terms and circumstances of the loan, breaches by the financial institution of the contractual obligations and a variety of other issues which can be utilized as a defense to a foreclosure lawsuit.
Conclusion
There has been a lot of predatory lending in the past five to ten years by financial institutions. Just simply alleging predatory lending was involved in a transaction is not enough. The facts and circumstances of predatory lending must be proven.
Citigroup Pays $7 Billion Regarding Improper Mortgage Practices
August 8, 2014 by
Citigroup recently settled with the Justice Department a lawsuit with regard to its being involved with fraudulent practices concerning residential mortgages. As part of the settlement, Citigroup will be expending more than $7 billion.
Citigroup
Citigroup is required under the settlement with the Justice Department to modify mortgages of financially troubled homeowners. However, due to the numerous problems Citigroup has had with regard to financing residential mortgages, they do not have sufficient existing mortgages to satisfy a $7 billion settlement with the federal government. Therefore, in addition to being involved in providing mortgage modifications to its struggling mortgage holders, Citibank has agreed to finance affordable housing to be rented to individuals in “high cost of living areas.”
No Criminal Prosecutions
Commentators with regard to the settlement have found the federal government has not held banks accountable to the level they should regarding the real estate crisis created in the United States by faulty mortgage practices. It should be pointed out no Citibank executives were charged criminally or prosecuted with regard to their fraudulent mortgage activities.
Attorney General Eric Holder however, has indicated the settlement with Citibank does not absolve the bank or its employees of the possibility of facing criminal charges. He went on to state, “the bank’s misconduct was egregious.”
Affordable Housing
Citibank has agreed to provide $108 million for affordable housing as part of this settlement. The rental housing component of the settlement will cause Citibank to provide financing for housing developments may result in financial losses to the bank. Justice Department spokesman Tony West, recently stated regarding the settlement, “we hope this measure will bring relief to families who were pushed into the rental market after losing their homes in the wake of the financial crisis.”
Elliot Schlissel is a foreclosure attorney. He litigates predatory lending issues, bad bank practices, fraudulent mortgage practices, and other issues involving financial institutions. He also helps his clients obtain mortgage modifications. Elliot is the former President of the Commercial Lawyers Conference of New York.
Default Interest Rate in Foreclosure 24%
August 6, 2014 by
In a case before Magistrate Judge Lois Bloom in the Eastern District of New York (a Federal Court) a borrower named McLaughlin had borrowed $184,000 and provided a note and mortgage to the financial institution regarding the mortgage. The financial institution brought an application for summary judgment claiming there were no issues of fact.
In the summary judgment motion, the attorneys for the financial institution cited a portion of the promissory note which said “in the event of default of the note specified that a 24% per annum ‘default rate’ should remain in effect until such time as all events regarding default were cured.”
Statutory Interest Rate in New York 9%
McLaughlin argued to the court the bank’s calculation of interest at the rate of 24% was improper. He claimed when judgment was granted on the summary judgment motion to the financial institution, they should have used the default rate of interest under New York statutory law of 9%.
Magistrate Bloom considered McLaughlin’s arguments. However, she found the 24% default rate of interest in the note would apply in this situation. She rejected McLaughlin’s argument the New York rate of interest of 9% on judgments was appropriate. She took this position because the contract clearly stated the interest would accrue at the rate of 24% per annum in the event of default until such time as the entire amount of the note was fully paid. She found even after a judgment was entered in the bank’s favor, they would continue to be entitled to an interest rate of 24%.
Conclusion
I find a 24% interest rate of a mortgage is outrageous. Most people do not carefully read mortgage notes when they enter into them. Often, attorneys who represent clients at closings on real estate transactions don’t go into detailed explanations concerning the potential for an interest rate raising from a reasonable rate to 24%. I disagree with this court’s decision. However, Judge Bloom’s decision is now the law of this case.
Elliot Schlissel is a foreclosure lawyer. His office has represented scores of New Yorkers successfully in bank foreclosure proceedings. Elliot strives to keep his clients in their homes!
