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Foreclosure Truths and Falsehoods – Part I

June 22, 2014 by

foreclosure defense attorneys on long islandForeclosure Summons and Complaint

1. If you are served with a summons and complaint in a foreclosure case, all you have to do is later show up at court at the mandatory arbitration court conference. This is not true!

If you are served with a summons and complaint in a foreclosure lawsuit, you have 30 days to submit a written answer to opposing counsel and the court, if served by any other means than by personal service. If the summons and complaint is personally put in your hand, you have 20 days to submit a written answer. If you do not answer it, you are considered to have defaulted. In the event you default, the financial institution’s lawyers, can move forward with the foreclosure case without you participating in it.

Under the law that exists in New York today, you would still be eligible to appear in court at a mandatory foreclosure mediation conference. However, you shouldn’t get your hopes up real high of it being successful and obtaining a mortgage modification. 4 out of 5 people who apply for mortgage modifications are turned down. Even those who are accepted for temporary mortgage modifications should not start celebrating. More than half of the time after the temporary modification period is over, the banks reject entering into a permanent mortgage modification.

You Will Be Thrown Out Of Your House

2. If your house is foreclosed on, you will most likely be thrown out of it in the near future. This is not true!

The foreclosure process can be a long and arduous process. If a foreclosure proceeding is brought against you, you can fight the lawsuit. There are numerous federal and state statutes which protect consumers in foreclosure lawsuits. There are issues involving robo-signers, bad assignments, failure to serve appropriate documents, and failure to effectively plead the case, which can be used as defenses against banks. Banks can also be countersued in the foreclosure proceeding for their violating state and federal laws and for the failure to act appropriately. If served with a foreclosure lawsuit do not vacate your home! You can continue to live in your home. There are remedies available to you!homeowner advocates

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: , , , ,

Wrongful Foreclosures

June 19, 2014 by

foreclosure defense attorneys for homeownersThere have been a significant number of lawsuits brought by attorney generals in states throughout the country as well as the federal attorney general’s office involving numerous financial institutions acting inappropriately with regard to foreclosure lawsuits. Lenders such as Bank of America, JP Morgan Chase, PNC Financial Services Group, Wells Fargo and GMAC mortgage company, have actually admitted to improprieties in the way these financial institutions handled the processing of foreclosure paperwork. These financial institutions and many others, including many mortgage servicing organizations, failed to verify the court documents they used to justify foreclosing on homes. In numerous situations, individuals referred to as “robo-signers” signed hundreds of documents which they did not read or were not familiar with. Far worse than that, many of these robo-signers were signing foreclosure documents for financial institutions they were not affiliated with.

Your Home

A family’s home is usually its most valued possession. No family should be forced from their home as a result of faulty bank practices. If your home has been foreclosed upon, is in the process of being foreclosed on, or is even being threatened with a foreclosure, it is important that you seek legal representation as soon as possible. There are numerous grounds to challenge foreclosures, numerous affirmative defenses, and potential lawsuits you may have available to you against the bank for financial damages. If you are the victim of a wrongful foreclosure lawsuit you owe it to yourself and your family to see to it your legal rights are protected.

Mortgage Servicing Companies

Many banks that make home loan mortgages do not service their loans. They either assign the loans to other financial institutions or they subcontract out the responsibilities to service the loans to mortgage servicing companies. Over the last 6 to 8 years, mortgage servicing companies have been overwhelmed with the large number of foreclosure cases they were required to service. Mortgage servicing is a high volume industry. The mortgage servicing companies sometimes hire employees with little formal training in handling these mortgages. In addition, many of them have inadequate supervision and have cut corners to make themselves more profitable. The unusually high number of mortgage defaults has added to this problem by overwhelming some of the mortgage servicing agencies. An example of the irregularities involved in servicing mortgages can be found with regard to Wells Fargo, one of the largest banks in the country, admitting to thousands of mistakes made in foreclosure documents. However, in spite of Wells Fargo’s admissions, they never took any action to stop those foreclosures based on mistakes and fraudulent documents from moving forward.

Robo-Signing

It was indicated earlier in this article the term robo-signer refers to individuals signing documents without authority and without reading these documents. During the course of depositions taken by foreclosure defense lawyers, some robo-signers have admitted to signing more than 10,000 foreclosure affidavits during a month. Most of these affidavits indicated the robo-signers actually personally reviewed the files and determined the paperwork they were signing was correct. During the course of depositions, these workers acknowledged there was virtually no time to even look at the files. They just simply signed the documents claiming to have reviewed files they never looked at.

Are You The Victim of Predatory Lending or
Improper Bank or Foreclosure Practices?

If you feel you are the victim of predatory lending or improper bank or foreclosure practices you should immediately retain a qualified law firm to investigate the situation. There are a variety of remedies available to you. You can even take legal action under certain limited circumstances to set the mortgage on your home aside. It may be that the mortgage loan against your home is unenforceable. If you feel you have grounds to challenge a mortgage or foreclosure practice, call our law firm for a free consultation. Our phones are monitored 24/7. We can be reached at 1-800-344-6431, 516-561-6645, or 718-350-2802.assistance for homeowners

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

Long Island Home Sales Going Down But Prices Going Up

June 17, 2014 by

foreclosure assitance for homeownersThe number of homes that were sold on Long Island during April of 2014 went down in relation to April of 2013. The number of transactions were approximately 20% lower than it was for April of 2013. One of the reasons given for the reduction of home sales was the fact that it was a long, cold winter. Prospective homeowners were kept off the market by the problems caused by the weather.

Home Prices Go Up

Even though less homes were sold in April 2014 than in 2013, the median price for home sales in Nassau and Suffolk Counties went up. The median price for homes in Nassau County in April of 2014, was up almost 6% from 2013, with a price of approximately $410,000. In Suffolk County, the median home price was approximately $301,000, with an annual gain of only 0.07%.

Mary Ann Murphy, a broker with Call Murf Real Estate in Lindenhurst, has recently stated the areas on Long Island which were subject to being devastated by Superstorm Sandy have been seeing much more sales activity. Although these properties are selling at a discount, they are starting to move.

Real Estate Brokers Expect a Busy Summer Selling Season

Brokers are anticipating the market will rebound during the summer months this year. In both Nassau and Suffolk Counties, it still takes approximately a year for the average home to be sold. In a more balanced real estate market, there would only be a six month delay for the average home to be sold.

About the Author

Elliot S. Schlissel is an attorney with more than 45 years of experience representing homeowners regarding fighting foreclosure lawsuits, obtaining mortgage modifications, and protecting homeowners’ rights. He offers free consultations to prospective clients.homeowner advocates

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

Avoiding Foreclosure

June 15, 2014 by

foreclosure defense attorneysForeclosure for many homeowners is a threatening, harrowing experience they seek to avoid. If a homeowner fails to make mortgage payments, foreclosure will most likely occur. Foreclosure is the beginning of the initiation of legal proceedings by a lender to take back the property used to secure the loan. The property is usually the parties’ home. At the end of a foreclosure proceeding, if the family is still in their home, the purchaser of the property can bring an eviction proceeding in the landlord tenant court to have the family removed from their home.

Should the home be sold at a foreclosure sale for less than the amount of the mortgage, interest, late fees, and other penalties, the financial institution who held the mortgage can move forward to obtain a deficiency judgment against the mortgagors for the amount that is still owed to them after they receive the proceeds of the foreclosure sale.

What is the best way of dealing with foreclosure? Avoid it!

Falling Behind on Your Mortgage

If you are falling behind on your mortgage, you should contact your bank. You should ask your bank whether they have any programs that will be helpful to you in dealing with temporary financial setbacks. Most lenders have a variety of programs available to homeowners suffering from short term financial difficulties.

If you receive letters from your financial institution or threats of foreclosure by attorneys for the financial institution, you should carefully read these letters. Ignoring these notices is not a good idea. Respond to the correspondence either on your own or retain an experienced foreclosure lawyer to help you deal with the situation. There are a variety of rights homeowners have with regard to mortgages and foreclosures. An experienced foreclosure defense lawyer will be able to explain these rights to you. In addition, the attorney will be able to discuss with you defenses that can be raised in the event of a foreclosure lawsuit against you.

If you have financial problems you could discuss the possibility of a bankruptcy. Credit cards and other non-secured creditors should not be paid before you make mortgage payments. Your home provides security for you and your family. It should be one of the first bills to be paid by you.foreclosure advocate for homeowners

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

Judges Assigned to Foreclosure Court Conferences

June 6, 2014 by

foreclosure defense attorneyThe courts in New York are being flooded with new foreclosure lawsuits. Before the litigation stage in a foreclosure lawsuit, the parties must attend mandatory foreclosure mediation conferences. The Office of Court Administration is assigning new judges to deal with the increased volume of foreclosure court conferences in the Counties of Nassau, Suffolk, Kings and Queens. This action is being taken related to numerous complaints which have been filed by the attorneys for homeowners. These complaints generally state the financial institutions attorneys’ who are showing up at the foreclosure court conferences have no authority to make the decisions necessary to amicably resolve these cases.

Bank Attorneys Have No Authority To Settle Cases
or Approve Mortgage Modifications

In a study provided by legal service providers, it was found in eighty percent of 252 settlement conferences which took place over a 90 day period last year, the lawyers representing the financial institutions either lacked the appropriate information concerning the cases or did not have settlement authority. Justice Barry Kamins, the Chief of Policy and Planning for the courts in New York has taken action to provide more judges at the foreclosure settlement conferences in the four counties that have the heaviest backlog of foreclosure cases for the purpose of having judges immediately available for resolving disputes that occur at the foreclosure court conferences.

New York Courts Bursting At The Seams With Foreclosures

In 2013, there were 87,000 foreclosure cases pending in the courts in New York. As of April 1, 2014, there are more than 90,000 cases now pending in the courts.

The purpose of foreclosure court conferences is to allow the homeowners and attorneys for the banks to get together for the purpose of negotiating a mortgage modification to prevent the house from being sold at foreclosure sales.

New York Law

New York Civil Practice Law and Rules section 3408(c) which governs foreclosure court conferences states “the plaintiff shall appear in person or by counsel, and if appearing by counsel, such counsel shall be fully authorized to dispose of the case.” In another section of CPLR 3408(f) it states, both sides to the legal proceeding “shall negotiate in good faith to reach a mutually agreeable resolution, including a loan modification, if possible.” Foreclosure defense lawyers are aware most financial institutions are ignoring this statute.

The large majority of attorneys who appear for banks do not have any settlement authority. It is estimated at less than ten percent of the attorneys who appear at foreclosure court conferences for financial institutions have any settlement authority. A recent report with regard to the conduct at foreclosure court conferences states the courts should “not tolerate rampant violation of the settlement conference law and should enforce the law as it is written vigorously.” The report goes on to state when the attorneys for the banks appear without the appropriate authority or do not negotiate in good faith, judges should create consequences for the lenders such as tolling or barring interest on the outstanding balance or staying actions until the financial institutions fulfill their obligations under the settlement conference law.

Conclusion

The purpose of the foreclosure court conferences were to provide an intermediate step prior to full fledged litigation to allow beleaguered homeowners to work out mortgage modifications to keep them in their homes. The statute was a step in the right direction. However, the banks are not complying with this statute. If they continue to fail to comply, judges should punish them for violation of this statute!homeowner advocates

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

Owning a Home is Better Than Renting

May 31, 2014 by

mortgage modification attorneysThere are a number of factors that should be taken into consideration when comparing the benefits and problems of home ownership versus renting.

No Mortgage vs. No Landlord

When you own a home you are in charge. It is yours! It belongs to you. If something breaks, you fix it. When you rent, you are living in the landlord’s house. If something breaks you need to contact the landlord to fix it. Landlords are not always very responsive to helping their tenants deal with problems in their apartments.

Fixed Rate Mortgages Don’t Go Up: Rent Does!

If you buy a house and obtain a fixed rate mortgage, you will pay the same amount each and every year. If you rent an apartment, periodically the landlord will raise your rent. It should be noted although your mortgage rate won’t go up, taxes on real property go up over time.

Homeowners Obtain Tax Deductions for Mortgage Interest

There are significant tax benefits for owning a home. You can deduct, in your federal and state income taxes, the interest paid on your mortgage. In addition, there are a variety of energy efficient improvements to the home that can be made which are also tax deductible. When you sell your home, the first $250,000 in profit payable to the owner of the home is not subject to capital gains tax.

Managing Your Own Space

When you are in an apartment there are small cosmetic things you can do. However, you cannot customize the space to meet all your needs. If you own a home, you can move walls and do anything you want with it. The space can be modified to meet all of your personal needs and/or whims.

Homeowners Can’t Be Evicted

If you rent an apartment and you don’t pay rent, thirty days afterwards a landlord can bring a summary proceeding and have you removed from the apartment. Eviction proceedings are relatively quick proceedings (although in the City of New York they can take as much as six to eight months). However, if you don’t pay your mortgage, and a financial institution has to bring a foreclosure lawsuit, those proceedings can take as long as three to five years. During that period, you can be living in your home while not making mortgage payments.

assisting homeownersElliot S. Schlissel is a foreclosure lawyer. He represents clients whose homes are going into foreclosure. He helps them stay in their homes, obtain mortgage modifications, and litigate a variety of issues involved regarding foreclosures with financial institutions. Elliot can be reached for a free consultation at 1-800-344-6431, 516-561-6645, and 718-350-2802.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: , , ,

Foreclosure Dismissed: Bank Makes Technical Mistake

May 29, 2014 by

foreclosure defense for homeownersIn a case before Justice Wilma Guzman in Bronx County, Judge Guzman dismissed a foreclosure lawsuit. Deutsche Bank had sued for foreclosure. They moved for a judgment of foreclosure and asked that they be allowed to sell the property. The defendant, Samuel Lopez, brought a cross-motion. He asked that the foreclosure proceeding be dismissed. He claimed there was a failure to comply with a condition precedent of Real Property Actions and Proceedings Law sections 1303 and 1304. He argued in his motion the section 1304 notice to the defendants, provided by American Servicing Company, indicated it was a debt collector and informed defendants they had a right to cure their default and failure to do so might result in American Servicing Company starting a lawsuit against them. Deutsche Bank argued it was in full compliance with section 1304. It was pointed out its notice to the defendants did not contain the method in which the notice had been mailed. This is required by this section of the law.

No Evidence of Mailing

Judge Guzman took into consideration in rendering her decision to dismiss the foreclosure action that no evidence was presented of a first class mailing. There was also no affidavit of mailing for a lender, the lender’s agents or any individual with personal knowledge of the transaction. Justice Guzman’s decision stated a mortgagee’s failure to strictly comply with a condition precedent required the dismissal of this foreclosure legal action.

In this case, American Servicing Company did not provide documentation they were the appropriate loan servicing agent for Deutsche Bank. They also did not fully comply with section 1304 of the Real Property Actions and Proceedings Law. Justice Guzman also pointed out in her decision the Home Equity Theft Prevention Act required a notice as a mandatory “condition” before a financial institution could proceed with a foreclosure lawsuit. The failure of Deutsche Bank and its servicing agent to strictly comply with this statute was valid grounds to dismiss this case.

Conclusion

helping homeowners stay in their homesIf a bank doesn’t dot its i’s and cross its t’s, you can get the case dismissed!

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

Strategic Default

May 22, 2014 by

foreclosure assistance for homeownersMortgage Basics

Individuals who take out a mortgage or refinance a mortgage generally execute two types of documents. The first is a promissory note. A promissory note is simply an “I owe you.” It creates a financial liability to repay the amount borrowed. The second item that is executed at the time of the closing is a mortgage. The mortgage is the document that secures the debt obligation. The mortgage provides the bank with a lien on your property. If you don’t make the mortgage payments the bank forecloses and sells your property at auction.

What Banks Do When You Don’t Make Payments

The first thing a bank does if you stop making your mortgage payments is they analyze the value of your home and its liquidation ability to pay the loan off. They then hire an attorney and the attorney files a foreclosure legal action on behalf of the bank.

Deficiency Judgment

If when your home is sold in the foreclosure sale, the amount received by the bank is insufficient to pay off the promissory note, a deficiency exists. A bank can bring a second lawsuit to obtain a judgment against you and force you to pay this deficiency amount. Here is an example. Your home is worth $300,000. But you owe $400,000 on it related to your mortgage. You fall behind and the bank takes legal action against you and eventually they sell your home. At the time of sale a speculator buys your home for $200,000 ($100,000 less than it is actually worth. This often happens because at foreclosure sales, speculators bid cash on homes that they know very little about other than an appraisal from the exterior and review of what other homes in the area sold for).

The bank receives only $200,000 from the transaction when you owe them $400,000. That leaves a deficiency against you of $200,000. The bank can sue you and obtain a judgment for that $200,000. One remedy you would have would be to thereafter file bankruptcy and eliminate the balance of the deficiency.

Strategic Default and How It Works

A strategic default involves taking into consideration whether your home is under water and it may never be worth the value of the mortgage. You simply stopped making your mortgage payments. Thereafter later on you negotiate a short sale, a mortgage modification, or a deed in lieu of foreclosure.

Strategic default means you are simply walking away from your mortgage. It takes place when a borrower decides he or she is going to intentionally not pay his or her mortgage because it no longer is financially practical. This usually occurs when the house is under water (worth significantly less than the amount of the mortgage).

Strategic default should not be undertaken without sound legal advice from an experienced attorney who has handled numerous transactions of this nature. There are a variety of pitfalls that can take place concerning a strategic default. If you are considering walking away from your home and/or mortgage because you can’t afford to pay it, feel free to call our office for a consultation. This is not a matter that should be taken lightly. Although a strategic default may be appropriate in some situations, there are many situations where it is not.

assisting homeownersElliot S. Schlissel is a foreclosure lawyer. He has helped scores of his clients stay in their homes and fight foreclosure proceedings. Elliot sues banks and other financial institutions who have broken laws, failed to obtain appropriate assignments, and who do not have appropriate standing to bring foreclosure lawsuits. His phones are monitored seven days a week. Call for a free consultation.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: , ,

FHA Gives Homeowners a Second Chance to Buy a Home

May 20, 2014 by

foreclosure defense for homeownersThe Federal Housing Authority (FHA) has a new program which will stay in effect until September 30, 2016. This program offers homeowners who have lost their homes due to short sales, whose homes have been sold in foreclosure, or who have given deeds in lieu of foreclosure back to financial institutions, a second opportunity to purchase a home. In the past, if a consumer lost their home related to a foreclosure case, they would have to wait thirty-six months before they could apply for a new FHA loan. However, under this new program, they would only have to wait twelve months after a foreclosure sale or a short sale to apply for a new FHA loan as long as they can document the financial issues that caused them to lose their prior home.

Reduction in Income

If the prospective homeowner can show that they had a loss of income of twenty percent or more for a minimum of six months prior to the loss of their home, it will help them qualify under this new program.

Credit Score

Under the new FHA program, the homeowner will need a credit score with a minimum of 640. In the event the prospective homeowner could not meet this credit score requirement, they must go through a HUD approved counseling agency concerning the issue of home ownership and residential mortgage loans.

The homeowner should be aware that supporting documentation with regard to any financial issues, hardships, illness, loss of employment or other problems that caused the individuals to lose their initial home must be fully documented. A letter explaining the situation will not be sufficient to qualify for this new FHA program.

Conclusion

FHA is extending themselves to homeowners and giving them a second chance that has never previously been offered to families who have lost their homes.

helping homeowners stay in their homesElliot S. Schlissel is a foreclosure defense lawyer. Elliot and his staff of attorneys represent individuals and families throughout the Metropolitan New York area whose homes have been foreclosed upon by financial institutions and mortgage companies. Elliot assists his clients in mortgage modifications. In addition, Elliot brings lawsuits against financial institutions who have broken laws, failed to obtain proper assignments and who do not have standing to bring their foreclosure lawsuits. Elliot has an unparalleled record of success in keeping his clients in their homes after foreclosure proceedings have been initiated against them.

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

New Federal Mortgage Disclosure Requirements

May 14, 2014 by

mortgage and foreclosure attorneyThe Consumer Financial Protection Bureau has propounded new mortgage disclosure requirements. Financial institutions and mortgage lenders will need to provide individuals and families who take out mortgages with much more detailed disclosure material at the time of closing on the loan. The new disclosure requirements replace the existing Truth in Lending Statements, HUD-1 Settlement Statements and the present Good Faith Estimate Disclosure Statements required to be provided by financial institutions.

Three Business Day Requirement

All individuals applying for loans must receive, under these new requirements, loan estimates within three business days. These loan estimate disclosure documents must provide the specific loan terms and the estimated expenses the borrower will incur at the time of closing on the transaction. A second additional disclosure statement will also have to be provided to the individuals taking out a mortgage within three business days before the actual closing takes place. This disclosure document will need to provide a detailed accounting of all aspects of the mortgage loan transaction.

Effective Date August 1, 2015

The new rules promulgated by the Consumer Financial Protection Bureau will go into effect on August 1, 2015. All loans processed after that date will require the dual disclosures discussed above.

Financial institutions and mortgage companies have been modifying their procedures to deal with these new rules and regulations that will go into effect in approximately a year and a quarter. These changes to the disclosure requirements which providers need to give consumers, are the most significant changes and modifications regarding mortgage loan disclosures that have taken place in decades. It is hoped that these new disclosure requirements will educate consumers as to how much they are borrowing, how much it will cost them, and whether they can afford to take the mortgage they seek to obtain.

foreclosure advocate for homeownersElliot S. Schlissel is a foreclosure attorney. He has helped scores of New Yorkers stay in their homes and fight off foreclosures. Elliot and his staff of attorneys also assist their clients in filing Chapter 7 bankruptcies, Chapter 13 bankruptcies, and applying for mortgage modifications. Elliot’s greatest satisfaction is when he can help the families he represents continue to live in their homes.

Filed Under: Bankruptcy, Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: , , , , ,

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Disclaimer: The information you obtain at this website is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your particular legal issue. This is attorney advertising.