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
Lack of Standing Defense Waived
The issue of standing in a foreclosure lawsuit is a basic issue. The affirmative defense of lack of standing basically says that the financial institution bringing the lawsuit does not have authority to bring this lawsuit.
The Nielsons
In May 2009 the Nielsons’ defaulted on making payments on a $660,000.00 loan to the New York bank’s predecessor. This loan was secured by property located in Kings County.
The Mortgage Assignment
In September 2009 pursuant to a mortgage assignment, U.S. Bank brought a foreclosure lawsuit in Supreme Court in Kings County. A decision was made by the trial judge granting summary judgment and foreclosure and sale to U.S. Bank.
The Appeal
The Nielsons brought an appeal challenging the trial court’s decision granting U.S. Bank summary judgment. The Appeals Court (the Second Department in New York) held that a defendant in a foreclosure lawsuit must submit an affirmative defense as part of their pleadings alleging lack of standing. The failure of the Nielson’s to allege this affirmative defense amounted to a waiver of that affirmative defense. Therefore, the trial court’s granting the motion for summary judgment for U.S. Bank was upheld.
Conclusion
Every answer in a foreclosure lawsuit should contain the affirmative defense of lack of standing. Until discovery proceedings are effectuated by the attorney for the homeowner, the homeowner will not be sufficiently knowledgeable as to whether the financial institution bringing the foreclosure lawsuit has actual standing to bring the foreclosure lawsuit.
Elliot S. Schlissel, Esq. is a foreclosure defense lawyer representing homeowners throughout the Metropolitan New York area for more than 3 decades. He can be reached for a free consultation at 800-344-6431 or you can contact me by e-mail at Elliot@sdnylaw.com.
The Discovery Process in Foreclosure Lawsuits
There are various strategies that can be utilized by attorneys for homeowners in foreclosure lawsuits. During the course of the foreclosure lawsuit after the summons and complaint are served on the homeowner and an answer is interposed when the case is released from the mandatory foreclosure conference part the parties can engage in discovery. The discovery portion of the case is a period of time where the parties to the litigation can obtain documents and other types of information from the other side. In most foreclosure lawsuits all of the documents and relevant information regarding the foreclosure case are in the hands of the lender. The homeowner can make demands on the financial institution to provide information and documents during the discovery process to develop defenses to the foreclosure lawsuit. The attorneys for the homeowner can accomplish this by serving extensive discovery demands on the financial institution’s attorneys. The purpose of these extensive demands is to help develop the homeowner’s defense to the foreclosure lawsuit.
Compliance to Discovery Demands
Unfortunately, most financial institution’s attorneys do not usually comply with the discovery demands. Sometimes they completely disregard the discovery demands and bring a summary judgment motion. They take this action because they will have difficulty into fully complying with the detailed discovery demands made by a qualified foreclosure defense lawyer. The failure of the financial institution to comply with the discovery demands can amount to another defense to the foreclosure lawsuit.
Motion to Compel Discovery
If the financial institution does not respond to discovery demands counsel for the defendant can make a motion to compel discovery. In most situations the financial institution’s attorneys do not completely ignore the discovery demands. Instead they comply with some of the requests and don’t reply to other aspects of the request. They make numerous detailed objections to the discovery demands. These objections basically are designed to avoid their having to respond to these discovery demands. In these case the attorneys for the homeowner can bring a motion but in this motion the homeowner’s attorney must show that the financial institution’s attorneys objections to the discovery demand lack merit.
The Bank Making Discovery Demands
The financial institution can make discovery demands upon the homeowner’s attorney too. However, the purpose of these discovery demands is usually not to obtain relevant information. The bank usually has all the information they need to proceed with their foreclosure case. The purpose of the discovery demand is to create difficult burden on the homeowner’s attorneys. The discovery demands can be very time consuming to respond to. While the financial institution’s attorneys are dealing with an institution that has billions of dollars in assets, homeowners have very limited assets to litigate against financial institutions. The serving of burdensome discovery demands by the financial institution is usually designed to set up a defense mechanism if the homeowner can’t completely respond to these demands when the homeowner claims that the financial institution is not in full compliance with the homeowner’s attorney’s discovery demands. It should be pointed out that trials on foreclosure cases are extremely rare. Approximately 98% of all foreclosure cases are resolved during the litigation motion process.
Elliot S. Schlissel, Esq. is a foreclosure defense lawyer. He has been representing homeowners for more than 45 years. Elliot is the managing partner of Schlissel DeCorpo LLP, a widely known foreclosure defense law firm. They can be reached for a free consultation at 800-344-6431 or Elliot can be e-mailed at Elliot@sdnylaw.com.
