Foreclose Action Dismissed and Mortgage Cancelled!

People negotiating a contract.

In a case from upstate New York Justice Phillip Rumsey sitting in the Supreme Court entered an order dismissing a foreclosure lawsuit brought by Citibank. In addition, he removed the mortgage from the homeowners’ property.

Citibank had initiated a foreclosure lawsuit against the Bravos. The homeowners claimed as their defense that Citibank did not have standing to bring this lawsuit because they were not the holder of the note on their property. Justice Phillip Rumsey had granted an order precluding Citibank from offering any evidence at trial of the homeowners’ indebtedness. In addition, he also precluded them from offering evidence they were the current holder of the note.

Citibank Appeals

Citibank brought an appeal to the Appellate Division. The Appeals Court found that Citibank had engaged in a pattern of conduct giving rise to an inference of willfulness sufficient for Judge Rumsey to impose a preclusion sanctions order.

The Homeowners Strike Back

Attorney Elliot SchlisselThe homeowners thereafter moved for summary judgment dismissing Citibank’s foreclosure lawsuit and they asked that the court discharge and cancel the mortgage by Citibank against their property. The homeowners claimed the preclusion order would prevent Citibank from establishing evidence necessary to allow Citibank’s foreclosure to move forward. Justice Rumsey noted the defendants’ argument was correct. Citibank would be prevented from establishing the material elements necessary in their mortgage foreclosure case. They could not establish their ownership of the debt.

Justice Rumsey granted the homeowners’ summary judgment motion and dismissed the foreclosure lawsuit. In addition, he granted the homeowners’ request for an order removing the mortgage from their home.

Conclusion

Justice Rumsey is a judge from upstate New York who punishes banks who act improperly in their dealings with homeowners regarding their mortgages.

Foreclosure Sale Set Aside

House for sale

In a case in Westchester County Justice Lawrence Ecker, sitting in a Supreme Court foreclosure part, ruled due to a mistake a party’s home was sold and the sale should be set aside.

Referee Sells the Property

The sale of the property was conducted by a Referee. The homeowner had spoken to the bank’s lawyer and was under the impression the sale was not going to move forward. However, the sale did move forward and the referee sold the property to the successful bidder. The bidder provided the referee with a deposit. However, a deed was not yet provided to the successful bidder.

Communication Issues

Justice Ecker found the mistake was not related to a one-time communication. There had been communications over a two-month period and the homeowner’s attorney was assured the scheduled sale would not be moving forward. The reason for the sale not moving forward was the bank had acknowledged the homeowner had completed all the steps required for the reinstatement of the mortgage.

Justice Ecker found as a matter of equity and good conscious, the sale should be set aside. Justice Ecker also ruled the purchaser should be entitled to a refund of his deposit plus interest.

Attorney Elliot Schlissel

Conclusion

Even after a home is sold it is still possible to bring a motion to the court where the foreclosure lawsuit is pending, to set the foreclosure sale aside if good cause can be presented to the court.

Foreclosure Case Dismissed

House keys and foreclosure notice

In a case in Orange County, New York before Supreme Court Justice Maria Vasquez-­Doles a foreclosure lawsuit was commenced against homeowners. Aschmoneit was the only defendant who submitted a written answer to plaintiff’s summons and complaint. Foreclosure conferences were scheduled and plaintiff’s counsel appeared at the conferences. He stated he was unable to obtain an affidavit of merit from the plaintiff for the purpose of making a timely application for a summary judgment motion. Justice Vasquez-Doles as a result of counsel’s statement dismissed the lawsuit. Thereafter plaintiff moved to vacate the dismissal and asked for a summary judgment against Aschmoneit, the defendant.

The original lender on this case was First Federal Savings and Loan Association. Counsel for the plaintiff claimed the dismissal by Judge Vasquez-Doles was improper because an attorney for the plaintiff has appeared at the foreclosure court conference and therefore the court did not have the discretion at that conference to dismiss the case.

Bank’s Arguments Without Merit

Judge Vasquez-Doles found plaintiff’s counsels argument to be meritless. In her decision she stated at foreclosure mediation court conferences counsel for plaintiff has to both appear and be ready to proceed. In this situation plaintiff’s counsel failed to obtain/an affidavit of merit from his client. He therefore could not make a timely motion for summary judgment. She further went on to hold the dismissal was proper. There was no documentary evidence of the assignment of the mortgage provided to the court. The financial institution could not show they had a meritorious claim against Aschmoneit. Aschmoneit should have received a copy of the certificate of merit from counsel for the plaintiff when she was served with the summons and complaint. Since she was not served with this document, the dismissal of the case was correct.

Conclusion

Attorney Elliot Schlissel

Foreclosure cases can be dismissed based on the financial institution’s attorneys’ failing to comply with the myriad of rules, regulations, statutes and court ordered responsibilities they have.

Elliot S. Schlissel and his associates have been representing homeowners sued in foreclosure cases for more than 3 decades.

Notice to Admit in Foreclosure Action Improper

House keys and foreclosure notice

In a case before Justice Joan Lefkowitz sitting in the Supreme Court Real Property Part in Westchester County, US Bank made an application for summary judgment. This application was brought in the foreclosure lawsuit and it was opposed by the defendant, Glusky. Glusky took the position the bank failed to satisfy a condition precedent to initiation of a foreclosure case. Glusky claimed the bank failed to comply with the 90 day notice requirement under Real Property Action and Proceedings Law Section 1304. The failure of the bank’s compliance with this law denied the bank standing to bring the foreclosure lawsuit.

Justice Joan Lefkowitz had made a previous decision holding the bank had failed to establish prima facie entitlement to summary judgment. This was because they did not establish the bank was in compliance with the Section 1304 of the Real Property Action and Proceedings Law 90 day notice requirements. This statute requires the bank provide a homeowner with 90 day’s-notice prior to the initiation of a foreclosure lawsuit.

Bank Seeks To Get Around 90 Day Notice Statute

The bank’s attorneys had sent Glusky a notice to admit. He objected to the notice. He asked the court for an order striking the notice to admit. Glusky claimed the facts went to the heart of the case. Counsel for the bank argued against Glusky’s protective order. Justice Joan Lefkowitz found the notice to admit asked Glusky to admit to material issues which were in dispute in this case. Therefore, she found the notice to admit was improper. Glusky had appropriately rejected the bank’s claim. The Judge also found the fact that Glusky did not object Attorney Elliot Schlisselto it in a timely manner is not relevant to the notice to admit being improper. Judge Lefkowitz rendered a decision which stated since the notice to admit was improper. Glusky simply did not need to respond. Judge Lefkowitz granted Glusky’s protective order striking the notice to admit.

Elliot S. Schlissel and his associates are foreclosure lawyers who have protected homeowners in foreclosure cases for more than 3 decades.

VIDEO: Statute of Limitations Defense for Foreclosure

Elliot discusses another case in which the statute of limitations was used as a defense for foreclosure.

Foreclosure Dismissed: Bank Failed to Comply with 90 Day Notice Requirement

Law books and a globe

In a case before Supreme Court Justice Peter Sweeney sitting in Kings County, he dismissed the bank’s foreclosure lawsuit. The bank had brought a summary judgment motion requesting an order that the house be sold at public auction, in addition they sought an order of reference with regard to this mortgage. The mortgage was on a two-family home owned by the Mitchells. The Mitchells brought a cross-application. They asked Judge Sweeney to dismiss the case. They claimed the bank had failed to serve them with Real Property Actions and Proceedings Law Section 1304’s 90 day notice prior to bringing the foreclosure lawsuit. The bank submitted evidence by their process server which alleged he had personally served Mitchell with the 1304 Notice when he served the Summons and Complaint. He claimed this took place at Mitchells’ residence.

No Personal Service

Mitchell in his opposing papers and cross-motion claimed he was never personally served with the 1304 Notice or the Summons and Complaint in this foreclosure lawsuit. He claimed he was more than a mile away at a local store at the time the alleged personal service took place by the process server.

Hearing Ordered Regarding Process Server’s Affidavit

Justice Sweeney found Mitchell submitted proof which contested the process server’s affidavit. Justice Sweeney therefore ordered a traverse hearing to determine whether service of process was properly effectuated. A special referee was appointed to supervise this proceeding. The referee found the bank’s claim that Mitchell had waived the bank’s failure to comply with Real Property Action and Proceedings Law Section 1304 was untrue. The special referee found a lender’s failure to comply with the 90 day notice provisions of Section 1304 is not an affirmative defense the defendant had to plead in his or her answer. Defendant Mitchells’ cross-motion to dismiss was therefore granted.

Attorney Elliot Schlissel

Conclusion

Banks have a definitive obligation to provide homeowners with 90 day’s-notice prior to initiating foreclosure lawsuits.

Bank’s Summary Judgment Application Denied

Keys and A House

In a case before Justice Elliot sitting in Supreme Court in Queens County, HSBC Bank brought a motion for summary judgment (a motion for a judgment of foreclosure claiming there are no issues that need to be tried) against Murphy in a foreclosure lawsuit. HSBC claimed they had possession of the original note with the proper endorsement. They therefore claimed they were the owner of the note and mortgage. They took the position that Murphy had not made his monthly mortgage payments and was therefore in default regarding his contractual obligations.

Bank Lacks Standing Defense

Murphy claimed in his defense the bank lacked standing to bring this lawsuit. He argued that a copy of the original note with a blank endorsement annexed to its motion and the affidavits dealing with the motion were invalid. Murphy claimed the endorsement was on a separate piece of paper which amounted to being on a blank page.

Justice Elliot found the affidavit of the bank’s servicer attesting to physical possession of the original note was not sufficient. He found the endorsement did not provide significant evidence that it was “firmly affixed thereto to become part thereof.” HSBC’s servicer did not provide sufficient information with regard to the original note’s condition. Therefore, Justice Elliot ruled the bank was not entitled to summary judgment on the case and the case would continue.

Attorney Elliot Schlissel

Elliot S. Schlissel and his associates have been representing clients in foreclosure cases throughout the Metropolitan New York area for more than 35 years.

VIDEO: Reverse Mortgage Foreclosures

Statute of Limitations Defenses in Foreclosure Losses: Six Year Statute of Limitations

write on paper

There is a six (6) year statute of limitations with regard to bringing a foreclosure lawsuit on a mortgage by a creditor. When the lender accelerates the mortgage (calls the entire balance due and owing, the statute of limitation period starts to run).

Acceleration of the Mortgage

When the bank accelerates a mortgage they must provide written notice to the homeowners. The bank is required to provide the homeowners with 90 days notice they they are accelerating the mortgage before they can initiate a foreclosure lawsuit. The failure of the bank to provide the homeowner with this 90 days notice gives the homeowner a legal defense to to foreclosure lawsuit. Our law office has had foreclosures dismissed due to the banks failure to provide the homeowner with this 90 day notice.

Restarting the Six Year Statute of Limitations

If the homeowner make a payment on a mortgage loan, enters into a mortgage modification or files a Chapter 13 bankruptcy that acknowledges the mortgage debt and agrees to repay it, each of these actions will restart the statute of limitations running all over again. The statute of limitations is a complete defense to a foreclosure lawsuit. If the 6 year period is approaching from the time the bank accelerated the mortgage the homeowner should be very careful to avoid taking any actions that will restart the statute of limitation period again. It is strongly suggested if you believe you have a statute of limitations defense, that you consult with an experienced foreclosure defense lawyer and get his or her opinion regarding this issue.

Attorney Elliot Schlissel

Elliot S. Schlissel and his associates for more than 3 decades have been representing homeowners throughout the Metropolitan New York area in foreclosure lawsuits. The law firm strives to keep homeowners in their homes and stop foreclosure cases from going forward.

VIDEO BLOG: Statute of Limitations Defense in Foreclosure

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