Foreclosure Defense Facts: Keeping Your Home When Facing Foreclosure – Part I

loan modification lawyerTo Avoid Default, You Must Answer The Summons And Complaint

A foreclosure lawsuit is initiated by the bank’s lawyers serving you with a Summons and Complaint. You can be served personally. The service can be on a person of suitable age and discretion at the residence. You can also be served by the process server leaving a copy of the Summons and Complaint at the residence and mailing you a copy. When you are served with a Summons and Complaint in a foreclosure you must file a written Answer. You must serve it on opposing counsel and file it with the Court within twenty days if served personally, or thirty days if served by any other means!

Mortgage Modification

You may be negotiating a mortgage modification with the bank. This does not change the fact you must respond to the Summons and Complaint by serving on opposing counsel a written Answer and filing it with the court. Negotiating a mortgage modification does not stop the foreclosure lawsuit from moving forward. If you don’t serve an Answer upon opposing counsel and file it with the court, the bank lawyers will take a default judgment against you. This will allow them to move forward with the foreclosure action without the court ever hearing as to whether you have a defense or wish to stay in your home.

Answering the Complaint

An Answer to the Complaint is a written response to the allegations in the Complaint. In addition to responding to what the bank states in their Complaint, you can submit affirmative defenses and you can also counter sue the bank. There are numerous requirements a bank must meet for their foreclosure lawsuit to go forward. Affirmative defenses can be alleged that the bank lacks standing to sue you, the bank does not have the original note and mortgage, the bank has violated truth in lending laws, the bank has failed to provide you with pre-foreclosure notice requirements, the bank was engaged in fraudulent activities, the person signing the documents is a robo-signer, and numerous other defenses. You only have to be successful with regard to one affirmative defense to stop the bank’s foreclosure lawsuit in its tracks!assistance for homeowners facing bankruptcy

Appellate Court Approves Remedy for Lender’s Bad Faith

foreclosure defense attorney for homeownersThe Appellate Division of the Second Department, an appeals court, has recently rendered a decision establishing remedies for homeowners when their lenders fail to act in good faith during the course of mandatory foreclosure settlement conferences. The appellate court in the case of US Bank National Association v. Williams upheld the lower court decision which cancelled interest from accruing and also prevented the bank from charging the debtor with their legal fees during the foreclosure conference period.

Homeowners’ Remedies

This case gave homeowners remedies to use against banks when they act in bad faith during foreclosure conference negotiations.

In this case, the bank continually asked the borrower for further documentation during the course of the foreclosure settlement conferences. However, it turned out even though the bank was asking for more and more documentation during the 13 month period, they had a ban which would have prevented them from granting a mortgage loan modification.

The Appellate Court’s Decision

The appellate court stated in its decision, “under these circumstances, the Supreme Court providently exercised its discretion in finding that US Bank was not entitled to collect interest accrued as a result of its wrongful conduct.” Under Civil Practice Law and Rules section 3408(a)(f), “both the plaintiff and defendant shall negotiate in good faith to reach a mutually agreeable resolution, including a loan modification, if possible.”

The court stated in its decision, attorneys representing mortgage holders have been complaining that in many cases financial institutions refuse to offer mortgage loan modifications but still come to the mandatory foreclosure court conferences and demand the homeowners provide them with detailed documentation to underwrite mortgage modifications. During these periods of time, the interest and the attorneys fees is accruing on the homeowner’s mortgage. Foreclosure defense lawyers have been continually asking courts for sanctions against financial institutions when they act in bad faith concerning these mandatory mortgage modification court conferences.

Conclusion

There exists remedies for homeowners when they are dealing with banks who refuse to negotiate mortgage modifications in good faith.assistance for homeowners facing bankruptcy

Foreclosure Defense Strategies

foreclosure defense attorneysForeclosure Solutions

Homeowners must understand a foreclosure lawsuit is simply a lawsuit between a bank and the homeowners. Homeowners have rights and banks have an extremely heavy burden to meet to be successful in a foreclosure lawsuit. When a homeowner is served with a Summons and Complaint, he or she must submit a written Answer to opposing counsel and file the Answer with the court. The homeowner should be asserting affirmative defenses and counterclaims against the financial institution in his or her Answer. The homeowner can use the foreclosure lawsuit to obtain leverage against the bank and put pressure on them to grant a mortgage modification.

The Answer

When served with the foreclosure Summons and Complaint, the homeowner has twenty days to respond if served personally, and thirty days to respond if served by any other means other than personal service. The homeowner can either submit an Answer or in certain circumstances, make a motion to dismiss the lawsuit right off the bat. It is important to remember that lending institutions and foreclosure legal action by them are extremely heavily regulated by State, Federal and local laws and regulations. Foreclosure defense attorneys utilize these regulations of financial institutions in developing defenses for homeowners. In addition to making a motion to dismiss, and submitting defenses, a homeowner can submit what are called affirmative defenses. These are technical legal challenges on substantive grounds with regard to issues related to the foreclosure lawsuit. Examples of affirmative defenses are: lack of standing, robo-signing, dual tracking, failure to document the loan, improper notice, improper service, fraud, loan modification issues and many other affirmative defenses.

Countersuits

Counterclaims can be brought against financial institutions seeking monetary damages. These countersuits can be based on allegations the financial institution caused injury to the homeowner. There are also statutory violations and statutory penalties which can be brought against the financial institution. Unique facts related to each homeowner’s situation can be molded into an appropriate Answer with affirmative defenses and countersuits against the bank.

Discovery

After the Summons and Complaint is served and an Answer is submitted, a lawsuit enters what is called the discovery phase. During this phase the attorneys for the homeowner can force the bank to turn over documents, bank records, underwriting records, and other information to help the homeowner with his or her defenses. If the bank’s attorneys refuse to comply with discovery demands, motions to dismiss the lawsuit can be made to the court.

foreclosure lawyers on Long IslandDeveloping The Response To The Summons and Complaint In The Foreclosure Lawsuit

Some law firms who handle one or two foreclosures a year look at a research book and submit a standard response in their answer. This is a standardized document not tailored to the specific needs of the homeowner. Our law firm, which has represented hundreds of homeowners, does not use boiler plate responses. Each and every foreclosure lawsuit is analyzed and specific affirmative defenses and countersuits related to the circumstances in each and every case are submitted by our law office.

Foreclosure Settlement Conferences

New York State has mandatory foreclosure settlement conferences required to be attended by the attorney for the homeowner and counsel for the lender. At these settlement conferences both parties are expected to negotiate and act in good faith. Referees at these conferences try to motivate the financial institutions to grant the homeowner a mortgage modification. Even if the homeowner has been turned down several times before, he or she can still use the leverage of the mandatory foreclosure court conference to obtain a mortgage modification.

Motion for Summary Judgment By The Banks’ Lawyers

In almost every foreclosure lawsuit, at some point, the attorneys for the financial institution bring a motion for summary judgment. This motion basically states that there are no issues of fact involved in the case, no valid defenses and the bank should be entitled to a judgment of foreclosure without a trial or further hearing. This is where the affirmative defenses and discovery demands by the homeowner come into play. The affirmative defenses can be utilized to argue to the court what the bank has done wrong. The failure of the bank to provide necessary documents and other requested information by the lawyer for the homeowner can help to defeat the summary judgment motion.

Conclusion

Banks do not always win foreclosure lawsuits. The legal system is designed to see to it financial institutions don’t take advantage of homeowners. Our law firm’s single goal is to help homeowners fight the foreclosure, keep their home, and obtain mortgage modifications. We have been successfully representing homeowners for more than 20 years.homeowner advocates on long island

Predatory Loan Issues

foreclosure defense help in New YorkBAC Home Loans Servicing had brought a foreclosure lawsuit against Ramsay. BAC had moved for summary judgment claiming there were no issues of fact and therefore they should be entitled to summary judgment without the need for a trial. They also sought to strike Ramsay’s Answer and have a referee appointed to compute the sums due and owing BAC under the terms of the mortgage.

Ramsay contended BAC’s summary judgment application should be denied. Ramsay claimed there was predatory lending and discriminatory practices involved in making the mortgage by the original lender, Madison Home Equities.

Justice Bernard Graham found BAC did not establish a prima facie case allowing them to obtain summary judgment in their foreclosure proceeding. Judge Graham had questions concerning the relationship between Madison Home Equities and BAC. A question arose as to whether their business relationship would support the allegations made by Ramsay concerning predatory loan practices. In addition the court found Ramsay had offered plausible, reasonable evidence BAC’s decision to deny the mortgage modification was based on incorrect calculations by them. Judge Graham found denial of the mortgage modification may have been unreasonable and Ramsay may have been entitled to said mortgage modification.

Conclusion

The judge carefully reviewed the facts of this case and rendered an important decision supporting homeowner’s rights in this foreclosure case.helping homeowners stay in their homes

Tips to Avoid Foreclosure

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Elliot Schlissel is a foreclosure defense lawyer.  He has been helping homeowners stay in their homes for more than 20 years.  He can be reached for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.

Mortgage and Foreclosure Schemes to Be Aware Of

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Elliot S. Schlissel is a foreclosure lawyer.  He has been representing clients in foreclosure lawsuits and mortgage modifications for more than 35 years.  He can be reached at 516-561-6645, 718-350-2802, 1-800-344-6431 or by email schlissel.law@att.net.

Bank Had No Obligation to Grant a Mortgage Modification

To watch today’s video blog, please click on the link below:

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Elliot S. Schlissel is a foreclosure attorney.  He has more than 35 years experience representing clients in all types of real estate matters.  He strives to keep his clients in their homes.  He can be reached at 516-561-6645, 718-350-2802, 1-800-344-6431 or by email to schlissel.law@att.net.

Your Mortgage Modification Application Was Denied – What Do You Do Now?

foreclosure defense attorney on Long IslandIf your mortgage modification was denied you are in good company. Very few people are actually successful in getting mortgage modifications. Individuals obtaining mortgage modifications have often submitted applications two or three times before they are eventually approved.

Preliminary Approval of a Mortgage Modification

Even if you receive a preliminary approval of a mortgage modification this may not mean you will receive a permanent mortgage modification. A significant portion of families receiving preliminary mortgage modifications make their payments for a period of between 3 and 6 months and then receive a letter from the bank stating they have decided not to give them a permanent mortgage modification. However, if you receive a preliminary mortgage modification and you decide to go forward with the modification, you should make your monthly mortgage payments in a timely manner.

Making monthly mortgage payments even though your mortgage payment may be less than it originally was, may still place a financial burden on you. Should you have other bills outstanding such as credit card bills you can no longer afford to pay, once you have obtained the mortgage modification you may be able to file a Chapter 7 bankruptcy and eliminate your payments on the unsecured debts such as credit card bills, medical bills, bills to cell phone companies, doctors, dentists and other types of unsecured debt.

Second Mortgages

If you are successful in obtaining either a preliminary or permanent modification of your first mortgage, you should then submit an application to the financial institution which holds your second mortgage. The fact that you are approved for a first mortgage modification will have an affirmative impact on the second mortgage lender and will make that mortgage modification application more likely to succeed.

Foreclosure Defense

If during the mortgage modification submission process or after you are turned down, the bank threatens to put you into foreclosure it is time to hire a foreclosure defense lawyer. During the course of a foreclosure lawsuit, the parties are subject to mandatory foreclosure court conferences. During these court conferences pressure can be placed on the financial institution to grant a mortgage modification even if you were turned down several times in the past. In addition, there are numerous affirmative defenses, and counter lawsuits which can be brought against the financial institution to either get the foreclosure dismissed or to motivate the financial institution to reconsider providing you with a mortgage modification.

Foreclosure Lawsuits

Even if you never receive a mortgage modification, the foreclosure lawsuit can be tied up in court in the Metropolitan New York area for anywhere from 4 to 6 years. This would give your family a substantial period of time to continue living in your home. In most situations the bank will still have to continue paying the taxes on your home and the casualty insurance on your home even though you are not making your mortgage payments.

helping homeowners stay in their homesIf you have questions or issues concerning your mortgage and/or foreclosure issues, contact the foreclosure defense lawyers at the Law Offices of Schlissel DeCorpo. We can be reached at 1-800-344-6431, 516-561-6645 or 718-350-2802.

How to Reduce Mortgage Payments

To view today’s video blog, please click on the link below:

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Elliot S. Schlissel is a foreclosure defense attorney.  He can be reached at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.

Bank Delays Tolls Interest in Foreclosure Lawsuit

mortgage modification attorneysA homeowner by the name of Lucic brought an application before Supreme Court Justice Peter Moulton who sits in New York County. The motion in the foreclosure case was to stop the mortgage payments from accruing in the foreclosure lawsuit that had been brought against him concerning his condominium apartment. Justice Moulton took the position the 6.5% interest rate on the mortgage held by Bank of America was a bit high taking into consideration the current interest rate payments.

HAMP Application

Bank of America opposed the motion. They claimed they had reviewed the HAMP application submitted by Lucic and they denied it pursuant to the Freddie Mac HAMP guidelines. Justice Peter Moulton found the argument submitted by Mr. Lucic, that Bank of America violated New York Civil Practice Law section 3408. The bank had failed to timely and properly process his mortgage application for a loan modification. They also continually made demands for the same documents which had previously been submitted to the financial institution. The court took the position Bank of America had engaged in a “two year run around”. The court took into consideration Lucic had diligently and faithfully provided Bank of America with the information they requested on many occasions. The court therefore took action and tolled (stopped) interest from accruing on this foreclosure from April 1, 2010 through April 30, 2012.

Conclusion

Each and every week homeowners come into my office and they tell me the same thing. They submitted a mortgage modification application and the bank they were dealing with continually asked they resubmit the same information over and over again. Sometimes these submissions took place over a period of years. The reason why the mortgage modification process doesn’t work is the banks have refused to properly fund this program. By under staffing the program, and not setting up internal guidelines, they have frustrated individuals who apply for mortgage modifications. For the large majority of home owners seeking help, HAMP instead of helping them, frustrates them.helping homeowners stay in their homes

Foreclosure Defense in Valley Stream, Lynbrook, Baldwin, Malverne, Freeport, Oceanside, Long Beach, Elmont, Lakeview, West Hempstead, Hempstead, Merrick and Bellmore, New York

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