Foreclosure Defense

Foreclosure Defense Case: Renting the Foreclosed Property and Surplus Money Issues

September 18, 2019 by Elliot S. Schlissel

A foreclosure lawsuit was brought in Westchester County before Justice William Giacomo. Acqua Capital was the plaintiff in this lawsuit. At the time of the foreclosure sale there was $187,000 in surplus monies over what was due and owing to Acqua Capital. This refers to money in excess of what the bank was owed at the time of the sale which was paid by a speculator to buy the house.

The Lease

Acqua capital and Campagna, the homeowner, entered into a lease. The former homeowner leased the home for $6,000.00 a month for 2 years. He requested the surplus monies ($187,000.00) be used to pay his rent.

The financial institution filed a notice of claim asking that $156,000.00 of the funds being held by the referee be assigned to Acqua Capital to make the lease payments. The referee is the person who sells the house in a foreclosure sale.

The Referee’s Position

The referee issued a report regarding the surplus monies. The referee was concerned that Campagna was a victim of overreaching by Acqua Capital. The referee stated the court should find the lease is unenforceable. The referee claimed the rent should not be $6,000.00 per month. The referee found this to be an unreasonable amount of rent. The referee claimed a fair and reasonable rental value would be $3,500.00 a month. This would require a total $84,000.00 for the 2 year period and not the $156,000.00 that was sought by Acqua Capital. Acqua Capital claimed the referee was exceeding his authority with regard to this matter.

The Judge’s Decision

Justice Giacomo found the referee could ascertain the amount due from surplus monies to Acqua Capital, Campagna and all of the lienholders. Justice Giacomo asked the referee to address the legitimacy of the assignment and the appropriateness of the lease between Campagna and Acqua Capital. Justice Giacomo found the referee’s report with regard to the amount of rental payments and the distribution of surplus monies was supported by the evidence. Acqua Capital’s motion to reject the referee’s report was denied.

Conclusion

In the event of a foreclosure sale the mortgage holder and other lienholders are paid. Any money left over in theory belongs to the homeowner. Homeowners must bring surplus money proceedings to obtain these funds. In this case the homeowner had $187,000.00 of surplus monies he should be entitled to spend it any way he desired. However, financial institutions should not be able to use the throwing of families out of their home as a basis for overcharging them with inappropriate rental payments.

Elliot S. Schlissel, Esq. is a foreclosure lawyer representing homeowners throughout the Metropolitan New York area. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: foreclosed property, Surplus Money Issues

Statute of Limitations Defenses in Foreclosure Cases

June 28, 2019 by Elliot S. Schlissel

Statute of Limitations Defenses The statute of limitations is set by statute in various types of cases. The statute of limitations to bring a foreclosure case on a defaulted mortgage is 6 years from the date of default or from the date of the acceleration of a mortgage. For a variety of reasons, foreclosure cases sometimes are initiated and then withdrawn, dismissed or discontinued. If a foreclosure case is withdrawn or dismissed the statute of limitations usually starts running from the start of the original foreclosure case. If the second foreclosure case is not initiated within 6 years from the date of the acceleration of the mortgage in the first case, the statute of limitations if plead is a complete defense to the foreclosure action.

Acceleration of the Mortgage

When the homeowner defaults on making the payments on their mortgage the financial institution can accelerate the maturity of the loan. The financial institution can declare all of the payments are presently due and owing on the mortgage. The financial institution is not limited to foreclosing on the past due payments. They can recover the entire unpaid balance of principal and interest on the mortgage. To do this, the financial institution accelerates the mortgage.

The Acceleration.

The acceleration of a mortgage requires the financial institution to notify the homeowner. This is usually done by sending a letter to the homeowner advising them notice of the acceleration or simply by starting a foreclosure lawsuit. It should be noted a default letter which states the loan balance “may be” accelerated if the homeowner does not become up to date on his mortgage payment, does not necessarily accelerate the loan. In order to accelerate the loan the notice of default must state that the loan “will” be accelerated if the default is not cured.

De-Acceleration of the Mortgage

A new issue with regard to the acceleration of the mortgage involves financial institutions taking action to de-accelerate the mortgage. There is currently case law that “a lender may revoke its election to accelerate the mortgage but it must do so by an affirmative act of revocation occurring during the 6 year statute of limitations period subsequent to the initiation of the prior foreclosure action.” This can be accomplished by a letter to the homeowner.

Conclusion

If you believe that you have a statute of limitations defense in a foreclosure case, it is important that you retain an experienced foreclosure defense counsel with regard to this issue. The re-accelerating of the statute of limitations defense to the foreclosure lawsuit should be dealt with immediately upon receiving a copy of the summons and complaint. The statute of limitations must be pled as an affirmative defense in your answer if you hope to utilize it as a defense to the lawsuit. Remember if the statute of limitation defense applies you may be looking at having a free home in your near future!

schlissel-headshot Elliot S. Schlissel, Esq. is the managing partner of Schlissel DeCorpo LLP. Elliot has been litigating foreclosure defense matters for more than 45 years throughout the Metropolitan New York area. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: forclosure defense attorneys

Foreclosure Lawsuit

June 19, 2019 by Elliot S. Schlissel

The plaintiff had brought a foreclosure lawsuit on a mortgage. All of the defendants other than Bank of America defaulted. They did not submit an answer to the summons and complaint. The plaintiff moved under court rules for an expedited proceeding. In some foreclosure actions to be eligible for an expedited procedure the plaintiff is required to waive a deficiency judgment.

No Referee Appointed

Justice Robert Quinian who sits in a foreclosure court in Suffolk County exercised his discretion to make decisions in this case without appointing a referee to compute the amount owed by the homeowner. The plaintiff in this case failed to directly provide a waiver and the court therefore could impose such a condition on the plaintiff if plaintiff’s application met statutory requirements.

More Than One Year Had Passed Since The Default

Justice Quinian found plaintiff’s motion was brought more than a year after the defendants defaulted in submitting an answer. Justice Quinian found there is a provision plaintiff could have alleged if they did not intend on abandoning the complaint, however the Judge did note that no attempt at providing a reasonable explanation for plaintiff’s delaying in an excess of one year was submitted. He therefore denied plaintiff’s motion and denied their ability to move forward with the default under the expedited procedures.

Elliot S. Schlisel, Esq. is the managing partner of Schlissel DeCorpo LLP. He is a foreclosure defense lawyer litigating cases throughout the Metropolitan New York area for more than 45 years. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: forclosure defense attorneys

Foreclosure Lawsuit Dismissed The Statute of Limitations Had Expired

June 7, 2019 by Elliot S. Schlissel

In the case before Justice Peter Mayer who sits in Supreme Court in Suffolk County, Rokoetz had executed a note and mortgage. This note and mortgage secured a lien against his home. Rokoetz defaulted in making payments on this mortgage. CS First Boston brought a foreclosure lawsuit in Suffolk County. They were granted an order of reference to sell the property and the matter was thereafter settled under a written agreement in 2007.

The Second Foreclosure Lawsuit

In 2017, 10 years after the original lawsuit had been started, the plaintiff brought a second foreclosure lawsuit against Rokoetz. Rokoetz moved for dismissal of the foreclosure lawsuit claiming the action was barred by the 6 year statute of limitations. Counsel for the financial institution claimed CS First Boston lacked standing to commence the 2005 foreclosure lawsuit as the mortgage was not assigned to it until after the commencement of the lawsuit. They therefore claimed they lacked authority to accelerate the loan. They claimed the loan was never properly accelerated until the plaintiff did so in the 2017 lawsuit.

The Loan was Accelerated

Justice Mayer found that the CP Boston’s claims were not valid. He ruled that CS First Boston’s 2005 complaint constituted an acceleration of the loan and the 2007 agreement did not constitute an unequivocal affirmative notice to Rokoetz that the acceleration had been revoked. Justice Mayer ruled Rokoetz had established the lawsuit was commenced outside the 6 year statute of limitations and was therefore untimely and needed to be dismissed.

Elliot S. Schlisel is the managing partner of Schlissel DeCorpo LLP. He has been litigating foreclosure cases throughout the Metropolitan New York area for more than 45 years. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: foreclosure

Foreclosure Lawsuit Barred by Statute of Limitations

June 3, 2019 by Elliot S. Schlissel

HSBC Mortgage Corporation had obtained a judgment in 2009 in a foreclosure case. They also had an order to sell the homeowner’s home. In 2013 the 2009 judgment was vacated and the lawsuit discontinued for “administrative reasons.” However, the homeowner continued to receive statements that her loan was referred to foreclosure or accelerated. The new servicer, Fay Servicing LLC became involved in 2016. A lawsuit by the homeowner had been brought to quiet title in this case.

Action by HCBS’s Attorneys

In 2017 Rosicki & Rosicki & Associates, attorneys for the financial institution sent a “Notice of Default” a pre-foreclosure notice, claiming the homeowner owed $229,220.00. They also threatened legal action against the homeowner. The notice by Rosicki & Rosicki & Associates said the default date was 2011. The actual default date was May 2008.

Violation of Fair Debt Collection Protection Act

United States District Court Judge Frederick Block sitting in the Eastern District in New York denied dismissal of both Rosicki and Fay Servicing violation of the Fair Debt Collection Practices Act. The letter they sent threatening to foreclose on a mortgage was barred by the statute of limitations. Judge Block held the homeowner presented documentation her mortgage was accelerated and the acceleration was not revoked. She said the foreclosure action was time barred pursuant to the New York State statute of limitations on bringing foreclosure lawsuits. Judge Block allowed the homeowners to continue litigating under the Fair Debt Collection Practices Act because the foreclosure lawsuit was barred due to the statute of limitations.

Elliot S. Schlissel, Esq. is a foreclosure lawyer. He has been representing homeowners in foreclosure defense cases for more than 45 years. He can be reached at 800-344-6431 or e-mailed at: Elliot@sdnylaw.com for a free consultation.

Filed Under: Foreclosure, Foreclosure Defense

Lawsuit Dismissed: Borrower Was Not Served With Foreclosure Notice

May 21, 2019 by Elliot S. Schlissel

In a case before United States District Court, Judge Nicholas Garaufis, who sits in the Eastern District (Federal Court of New York), sometime between executing a note and mortgage in 2005 and 2017 regarding a foreclosure Stern sold the mortgaged property. The property was subdivided among new owners. In 2016 the plaintiff did not serve Stern a notice under New York Real Property Action and Proceedings Law Section 1304 which was to provide homeowners notice they were at risk of losing their home in foreclosure.

Homeowner Moved Out of the Property

Stern was not served with the appropriate notice under Real Property Action and Proceedings Law Section 1304 because the bank’s lawyers thought he was not entitled to such notice because Stern no longer lived in the property.

Foreclosure Lawsuit Dismissed

US District Court Judge Nicholas Garaufis dismissed the foreclosure lawsuit for failure to serve Stern with the required pre-foreclosure notice under Real Property Action and Proceedings Law Section 1304. This section requires the pre-foreclosure notice to be sent to the borrower at the time of the acceleration of the motion. This is true even if the borrower later moves out of the property which secures the loan. The fact that Stern no longer occupied the property as is primary residence did not excuse the financial institution’s obligation to serve Stern with notice of the foreclosure lawsuit. Judge Garaufis ruled when a lender, assignee or mortgage servicer fails to show strict compliance with the Real Property Action and Proceedings Law Section 1304, the foreclosure lawsuit must be dismissed.

Elliot S. Schlissel, Esq. is the managing partner of Schlissel DeCorpo LLP. The firm has been representing homeowners throughout the Metropolitan New York area regarding foreclosure matters for more than 45 years. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Filed Under: Foreclosure, Foreclosure Defense

Homeowner Failed to Assert Affirmative Defenses: Bank Granted Judgment of Foreclosure and Sale

May 6, 2019 by Elliot S. Schlissel

In a matter before Supreme Court Justice Howard Heckman, who sits in Suffolk County, a bank brought a foreclosure lawsuit against Bourie. The bank claimed in the lawsuit Bourie defaulted in making his mortgage payments. The bank eventually brought a motion for summary judgment asking that the answers submitted by Bourie be stricken. In response to the bank’s summary judgment motion, Bourie argued the bank failed to prove service of the Summons and Complaint in compliance with the Fair Debt Collection Practices Act.

“Fair Debt Collection Practices Act”

The bank in its opposing papers pointed out Bourie had failed to assert the affirmative defense of the bank’s alleged failure to serve a mortgage default notice. Justice Heckman ruled Bourie’s failure to submit an affirmative defense of the bank’s failure to serve him with a notice of default acted as a waiver of his rights to assert compliance in opposition to the bank’s summary judgment motion. Justice Heckman also ruled Bourie waived his Fair Debt Collection Practices Act defense by his failure to assert it as an affirmative defense in his answer. The judge granted the bank’s summary judgment motion and allowed them to move forward with the sale of Bourie’s home.

Conclusion

When the bank initiates a foreclosure lawsuit, a homeowner has either 20 days or 30 days to submit a written answer to the bank’s lawsuit. In the answer the homeowner must allege all of his defenses and affirmative defenses to the lawsuit. If the homeowner fails to list a defense or affirmative defense to the lawsuit, it is considered that he has waived his right to utilize this defense or affirmative defense in his case.

Elliot S. Schlissel is the managing partner of Schlissel DeCorpo LLP. The firm has been representing homeowners throughout the Metropolitan New York area regarding foreclosure matters for more than 45 years. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

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

Representing Yourself in a Foreclosure

April 18, 2019 by Elliot S. Schlissel

Representing Yourself

My office has been representing homeowners in foreclosure cases for more than 45 years. Often homeowners come to me and they tell me they have been representing themselves in a foreclosure. When I ask them how they are doling, they say well we were doing fine. This means the homeowner has hit a brick wall. If you need an operation would you engage in surgery on yourself? No homeowner should ever represent themselves in a foreclosure. At a minimum they will be greatly outmatched. Financial institutions have unlimited money to hire lawyers. Lawyers who engage in foreclosure practice sue hundreds of homeowners in multiple courts throughout the Metropolitan New York area. They have extensive experience in litigating foreclosure lawsuits.

The Stubborn Homeowner

In spite of what I have indicated above, our office sees quite a few homeowners who have been litigating their own cases. A large majority have done a poor job. However, occasionally I run into bright, articulate homeowners who are actually doing a good job in representing themselves in the foreclosure lawsuit. For those homeowners I ask them several questions. How to do you plan on questioning yourself if you are on the witness stand? Can you explain to me how you can establish the foundation for presenting evidence to the court? When I ask these questions the homeowners are usually dumbfounded.

Foreclosure Defense Lawyers

Most lawyers are not familiar with the process of defending foreclosure lawsuits. The defense to a foreclosure lawsuit involves specialized pleadings. The best defense to a foreclosure case would be to prove the homeowner has made the payments. However, this is almost never the case. The defenses to foreclosure lawsuits usually deal with sophisticated statutory defenses. Truth and Lending Laws violations, violations of state and federal banking laws, failure to provide proper notice, failure to serve a summons and complaint in conformity with statutory requirements, failure to act in good faith with regard to foreclosure mortgage modification conferences, failure to provide the appropriate documents at the closing and the list of legal defenses goes on and on.

Hire an Experienced Foreclosure Defense Lawyer

Only attorneys with intimate knowledge of the underwriting process of mortgage loans, the regulatory requirements financial institutions need to comply with and knowledge of the ins and outs of foreclosure cases can provide a specialized level of representation for homeowners. The banks hire experienced attorneys to bring their foreclosure actions. Homeowners should not rely on just any attorney to represent them. They should only hire experienced foreclosure defense lawyers with a track record of successfully representing homeowners.

Before hiring a foreclosure defense law firm ask them how many articles he or she has written regarding foreclosure cases. Our law office has been diligently litigating foreclosure lawsuits and helping homeowners obtain mortgage modifications for more than 45 years. We have kept hundreds of homeowners in their homes. We are available for free consultations. We pride ourselves in keeping our clients in their homes. We can be reached for a free consultation at our offices in Nassau, Suffolk and Queens Counties at: 516-561-6645, 718-350-2802 or 631-319-8262. You can also e-mail us at Elliot@sdnylaw.com.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: foreclosure

Bank Fails to Show Standing to Maintain Foreclosure Lawsuit

December 13, 2018 by Elliot S. Schlissel

Bank Fails To Show Standing To Maintain Foreclosure Lawsuit In a case before Justice Robert Muller sitting in Clinton County, Beneficial Finance Service provided a mortgage loan to Carpenter. Carpenter defaulted in making payments to Beneficial Finance Service. Caliber Home Loans, acting under a Power of Attorney for Beneficial Finance Service, started a foreclosure lawsuit against Carpenter. Carpenter claimed defenses to the lawsuit including a lack of standing by Caliber Home Loans.

Summary Judgment Application

The Calibers brought a motion for summary judgment against Carpenter. They sought to have his answer dismissed. Justice Robert Muller noted plaintiff’s papers did not contain a power of attorney. They also did not contain a servicing agreement authorizing Caliber Home Loans to act as attorney in fact and servicer.

The Judge’s Decision

Justice Muller found it was unclear whether the affidavit by Neilson indicating he was familiar with Caliber Home Loans business records also claiming that Caliber was the custodian receiving physical possession of the note and mortgage from Beneficial Finance Service was valid. Justice Muller found it was also unclear whether the plaintiff actually had physical possession of the note. The assignment of the mortgage did not discuss who had possession of the note. It only discussed the transfer of the mortgage.

Justice Muller rendered the decision stating Beneficial Home Servicer and Caliber Home Loans failed to establish standing to bring the foreclosure lawsuit and the summary judgment motion was denied.

Conclusion

Financial institutions must prove they are the appropriate party to bring a foreclosure lawsuit. The defense to the foreclosure lawsuit being brought by an institution that does not have the proper authority is called “lack of standing.”

schlissel-headshot Elliot S. Schlissel is a foreclosure attorney who has been fighting foreclosure lawsuits for more than three decades. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

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

Foreclosure Action Dismissed: Bank Had No Standing

December 11, 2018 by Elliot S. Schlissel

In a case in Orange County before Justice Maria Vasquez-Doles a plaintiff moved for summary judgment claiming there were no questions of fact and that a trial was not necessary in this foreclosure case. They requested an appointment of a referee to compute the amount which was owed. In addition, they wanted a default judgment against non-appearing defendants. The original note and mortgage was between Home Funds Direct and the homeowners. It was claimed the homeowners defaulted by not making timely mortgage payments. US Bank Trust moved for summary judgment. The defendants argued US Bank Trust did not have standing to bring the lawsuit. They claimed MIRS was never authorized by the original lender to assign the note and mortgage to US Bank Trust. The defendants claimed the note was in the possession of “a custodian Wells Fargo Bank” not US Bank Trust.

The Judge’s Decision

Justice Vasquez-Doles found US Bank Trust had not met its burden of proof to show it had standing to bring the foreclosure lawsuit. She found they failed to establish a prima facie case that US Bank Trust was in possession of the note because Wells Fargo continued to possess the original note. She also found US Bank Trust could establish the standing by showing the note was assigned to them, but they failed to do this. She also pointed out there is no endorsement to MIRS on the note giving it authority to assign the note. The evidence presented in the case was there was no evidence indicating MIRS had a right to assign the note. MIRS also could not transfer something it did not have possession of. Although US Bank Trust could have established physical delivery of the note to them, they did not undertake to do this in this case. Justice Vasquez-Doles therefore dismissed the case.

Elliot S. Schlissel is a foreclosure lawyer representing homeowners throughout the Metropolitan New York area for more than 45 years. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

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

The Lease

The Referee’s Position

The Judge’s Decision

Conclusion

Acceleration of the Mortgage

The Acceleration.

De-Acceleration of the Mortgage

Conclusion

No Referee Appointed

More Than One Year Had Passed Since The Default

The Second Foreclosure Lawsuit

The Loan was Accelerated

Action by HCBS’s Attorneys

Violation of Fair Debt Collection Protection Act

Homeowner Moved Out of the Property

Foreclosure Lawsuit Dismissed

“Fair Debt Collection Practices Act”

Conclusion

The Stubborn Homeowner

Foreclosure Defense Lawyers

Hire an Experienced Foreclosure Defense Lawyer

Summary Judgment Application

The Judge’s Decision

Conclusion

The Judge’s Decision

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