Mortgage Modification

Negotiations with Bank Does Not Stop Foreclosure Lawsuit

January 14, 2014 by Elliot S. Schlissel

A foreclosure lawsuit was brought by Citi Mortgage against Vatash. Vatash submitted an answer with affirmative defenses to the summons and complaint served by Citi Mortgage. Citi Mortgage moved for summary judgment. In their application they sought to dismiss the answer brought by Vatash. Vatash claimed, in his answer, Citibank lacked standing to bring this foreclosure action. He also claimed Citibank’s motion was inappropriate because he was involved in discussions with Citi Mortgage concerning a loan modification. He took the position since loan modification discussions were ongoing, Citibank had no right to move forward with the foreclosure case.

Standing Argument Dismissed

Justice Thomas Whelan sitting in a Supreme Court Part in Suffolk County, ruled Vatash’s argument that Citi Mortgage didn’t have standing was procedurally defective. The ruling was based on the allegation that Vatash failed to assert lack of standing in his answer or in a pre-answer motion to dismiss. In addition, the court took the position the argument even if it had been submitted appropriately in the answer, was substantively without merit. The court held Citi Mortgage was the owner and holder of the note and mortgage upon its merger with the original financial institution which made the loan.

The court ruled in favor of Citi Mortgage’s application for summary judgment (an application to grant a judgment without the need for a trial because there are no issues of fact). The court took the position the opposition papers submitted by Vatash did not create an issue of fact or an adequate defense.

Negotiations Do Not Stop Foreclosure Cases from Moving Forward

The Court specifically held the fact that Vatash was engaged in negotiations and/or discussions with Citi Mortgage is not a defense to the foreclosure lawsuit. Citi Mortgage’s motion for summary judgment was granted.

Conclusion

There are a number of important issues which were dealt with in this case. To start with, a lack of standing argument must be plead in the answer to the Summons and Complaint. Secondly, discussions with a bank concerning mortgage modifications or other ways of resolving the case have no impact on the foreclosure lawsuit moving forward.

Elliot Schlissel is a foreclosure defense lawyer. His office has represented homeowners for more than 45 years on mortgage foreclosure lawsuits throughout the Metropolitan New York area.

Home Buyers Misconceptions

January 7, 2014 by Elliot S. Schlissel

Buying a home is a complicated undertaking. First home buyers usually rely on discussions with friends and relatives as to what action they should take, what they should do, what they should be aware of, and how real estate transactions are conducted. The lay of the land on home purchases has changed. The mortgage bubble that resulted in the real estate crisis in America has changed some of the ground rules.

Real Estate Brokers Are Not Always Necessary

Real estate brokers provide a valued service to both buyers and sellers. They are very well paid for their services. However, homeowners can sell their homes without a real estate broker. This is especially true if someone is available to show the home during evenings and weekends. A homeowner can advertise the home for sale in local newspapers and/or on the internet, meet and greet the prospective purchasers, and hire an attorney to represent them on the real estate transaction. If the homeowner does not have the time, the patience, or the availability, hiring a real estate broker to represent them may be a necessity. Websites such as www.zillow.com and www.redfin.com can be utilized by a homeowner who seeks to avoid paying the commissions related to listing a home with a real estate broker. Many home buyers today utilize the internet to look at the material on these websites to find the home of their dreams.

Hidden Costs of Owning a Home

The average homeowner, when looking to purchase a home, takes into consideration the mortgage and sometime the taxes on the property. In addition to the mortgage and taxes, homes require heat in the winter and they may require air conditioning in the summer. The fuel oil to heat the home and the electricity to air condition the home can be expensive. Depending on the climate of the area where the home is located, these expenses can amount to between $5,000 and $10,000 per year. Even if the home does not need air conditioning, the electricity to run the appliances, computers, and keep the lights on can be very expensive. The grounds of the home need to be maintained. The homeowner has to maintain his lawn and shrubs and the rest of his property or hire a gardener to do so. The exterior of the home needs to be kept in good condition. Painting needs to be done on a periodic basis and/or the home needs to be sided. Roofs can leak, boilers can break, pipes can leak, electrical issues can develop. These are all potential expenses a homeowner may face.

Down Payment Policies

A 20% down payment is not always needed to obtain a mortgage. If the prospective homeowner is looking to obtain a conventional mortgage from a financial institution, a 20% down payment may be necessary. However, under Federal Housing Authority (FHA) programs, much less is required as a down payment. In some situations, as little as 5% or 10% of the cost of the home is sufficient as a down payment. Programs are available from the Veterans Administration for veterans who can finance a home with a very low down payment.

Elliot S. Schlissel, Esq. has been representing clients in real estate transactions for more than 45 years. His office represents homeowners in buying and selling of homes, defending them against foreclosures, and helping them obtain mortgage modifications when they fall behind on their mortgages.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: foreclosure attorney, foreclosure defense, mortgage modification, mortgage modification attorneys, real estate, real estate attorneys

Foreclosure Dismissed – Citibank Has No Standing

January 3, 2014 by Elliot S. Schlissel

In a case before Justice Lizbeth Gonzalez, in the Supreme Court of Bronx County, the judge dismissed a foreclosure lawsuit brought by Citibank.

Citibank had filed a foreclosure proceeding against a homeowner named McCray. They had taken this action on behalf of a Bears Stearns Alt-A Trust. McCray brought a motion requesting the foreclosure lawsuit be dismissed. He argued Citibank had lacked standing to bring the lawsuit. Citibank claimed it had standing to bring the lawsuit because it was the holder of the original note.

Holder or Assignee of the Note and Mortgage

Judge Gonzalez in her decision stated a foreclosing party in a foreclosure lawsuit has standing when they are both the holder or assignee of the mortgage and underlying note at the time the action is commenced.

Citibank’s attorneys had argued they were the holder of the note. However, their legal submissions did not state they also were the holder of the mortgage.

Motion to Dismiss Case Granted

Judge Gonzalez found that there was no proof submitted by Citibank they were the holder of both the mortgage and the note at the time of the initiation of the lawsuit. The court therefore granted McCray’s motion to dismiss. Judge Gonzalez found that Citibank did not submit adequate proof it had the right to the debt in the absence of documentation of chain of custody and proof the mortgage and notes were lawfully assigned and held by it prior to commencing the lawsuit. Since Citibank did not establish and meet the requirements they had standing to bring the foreclosure lawsuit, Judge Gonzalez held that they did not have standing to foreclose and their foreclosure lawsuit was dismissed.

Conclusion

Before a financial institution can bring a foreclosure lawsuit they must be able to prove that they are the holder of both the note and mortgage. In addition, they must show that the mortgage has been rightfully assigned to them and the assignment was properly filed. The documentation of the assignment, the possession of both the note and the mortgage, should be attached to the summons and complaint in the foreclosure legal action. If the financial institution does not do this, the court should dismiss the case for lack of standing.

Elliot S. Schlissel is a foreclosure defense attorney. His office has helped homeowners in scores of cases fight foreclosures and remain in their homes.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: defective foreclosure lawsuits, foreclosure, foreclosure attorney, foreclosure defense attorneys, foreclosure defense lawyers, foreclosure proceedings, New York foreclosure attorney, New York foreclosure defense lawyers

New Mortgage Rules: Too Little, Too Late!

January 2, 2014 by Elliot S. Schlissel

A new agency called the Consumer Financial Protection Bureau has been established. The purpose of this agency is to see to it we do not end up in another real estate bubble related to improper, unfair and illegal mortgage practices by financial institutions.

Owning one’s home is the American dream. The process of purchasing a home involves applying for a mortgage. Mortgage brokers and loan officers at banks seek to simplify this process. However, applying for a mortgage loan is generally the largest financial transaction a family enters into. The Consumer Financial Protection Bureau is set up pursuant to the Dodd-Frank financial reform law. New applications and forms are created by this statute. They are supposed to be in simplified, easy to read, and involve complete disclosure.

Financial institutions are supposed to clearly provide individuals applying for the mortgage with information concerning the actual cost of the loan. The principal amount. The amount of interest they are being charged and what they will spend in closing costs. The forms must also contain information concerning other aspects of the financial transaction including but not limited to whether there will be prepayment penalties and other costs related to the financing. The new law goes a long way to simplifying and clarifying this process for prospective home buyers. However, it does not go far enough.

Failure of the New Mortgage Rules

What the new forms do not do is provide the prospective homeowner with a logical basis to compare loan products from different financial institutions. The new loan forms do not include various costs related to the purchase of a home. Some of the costs these forms do not deal with are title insurance, closing expenses related to taxes, fuel oil costs to heat the house, and attorneys fees for hiring an attorney for legal representation.

No Three Day Right to Review

The Consumer Financial Protection Bureau had initially requested that all financial institutions be required to give the mortgagors a three day right to review the information whenever loan terms concerning the transaction are changed or modified. Unfortunately, this rule was not established. Lenders still have the ability to present the mortgagors, at the time of the closing, with changes in the cost structure of the financing. This is both unfair and unreasonable. You have homeowners sitting at the table at their closing expecting to pay one amount for the financing of their home and being told at the last minute, it is going to cost you more. They are too deep into the transaction to walk away. They are stuck with a higher cost of their mortgage. This is true even if the higher costs are beyond their ability to pay. Lenders should be forced to live up to the terms of their proposals when they offer prospective homeowners mortgages. They should not be allowed to change the terms at the last minute to the prospective homeowners detriment.

The establishment of the Consumer Financial Protection Bureau under the Dodd-Frank financial reform law was a great idea. Unfortunately, this great idea has not worked out completely to consumer’s benefit.

Elliot S. Schlissel is a foreclosure defense lawyer with more than 45 years of legal experience. He litigates foreclosure lawsuits throughout the Metropolitan New York area. He keeps families in their homes and helps them obtain mortgage modifications.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: foreclosure, foreclosure attorney, foreclosure crisis, foreclosure defense, foreclosure defense lawyers, mortgage modifications, New York foreclosure attorney, New York foreclosure defense lawyers

Stopping Foreclosure in Its Tracks

December 27, 2013 by Elliot S. Schlissel

Times are tough in New York right now. Many businesses have downsized their employees. This has caused layoffs. It is harder to make a living in New York today than it was in earlier decades. Financial difficulties can cause stress. The ultimate problem consumers face is when they receive notice the bank is going to foreclose on their home and put them on the street. Receiving notice your home is going into foreclosure can be deflating. However help exists.

You can take legal action to stop foreclosures from moving forward in New York. You do not have to surrender to the financial institutions and be forced out of your home at a time when your credit is at its lowest point. Hiring an experienced, dedicated foreclosure attorney can make the difference between continuing to live in your home and being forced out of it.

There are numerous steps a foreclosure defense lawyer can take to help homeowners. Forbearance agreements can be negotiated. Mortgage modifications can be submitted. Mortgage modifications can sometimes reduce the principal, provide lower interest rates and more flexible terms. Some lenders are willing to defer significant portions of the mortgage indebtedness to later points in time. When applying for a mortgage modification, it is important the homeowner show financial difficulties. Mortgage modifications are designed to help homeowners who are in distress. Our foreclosure defense lawyers can counsel you with regard to the best route to take with regard to mortgage modifications.

Federal House Authority (FHA) Mortgages

There are special programs set up by the Federal House Administration with regard to homeowners who lose their jobs and have financial difficulties paying their mortgages. The program for unemployed homeowners can excuse the homeowner from paying their mortgage for a period of up to one year. During this period of time, the bank will be unable to foreclose. Our foreclosure attorneys can help you prepare the necessary paperwork and make the application to participate in this program. We can also intercede with regard to the bank or financial institution to help you deal with your current financial difficulties.

Foreclosure Court Proceedings

Foreclosure lawsuits are started by the service of a Summons and Complaint by the financial institution’s attorneys on the homeowner. When a homeowner receives a Summons and Complaint they have between twenty and thirty days to take action to stop the foreclosure in its tracks. Our law firm, when defending a homeowner, immediately files between eighteen and twenty five affirmative defenses. We also regularly countersue (sue the bank) as part of the lawsuit. The squeaky wheel gets more grease is an expression. We stand out from the crowd when defending our clients in foreclosure lawsuits. We pressure the financial institutions to make mortgage modifications and/or withdraw their lawsuits. Legal action can be taken to tie the cases up in court any where from three to six years in the Metropolitan New York area.

In Foreclosure? Do Not Despair

The worst thing you can do if your bank threatens to sue you in foreclosure or serves a Summons and Complaint upon you is to do nothing! If you take no action to defend yourself in the court by submitting a written answer to the bank’s lawyer and to the court, you default. By defaulting, you give the financial institution a win. It is like lying down to die. Don’t do it.

If you are facing foreclosure, call us. We will offer you a free consultation. We will provide you with a road map as to what we can do to keep you in your home and defend you in the foreclosure lawsuit. We will give you a written itemized retainer which shows what we will charge you, the basis of our charges, and what we can do for you. Help exists. God helps those who help themselves. If you have foreclosure problems, call us. We are the law firm that can help you. The phones at our law office are monitored 24 hours a day, 7 days a week. We can be reached at 1-800-344-6431, 718-350-2802 or 516-561-6645.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: financial crisis, foreclosure, foreclosure attorney, foreclosure crisis, foreclosure proceedings, mortgage modification, Mortgage Modifications attorney, New York foreclosure defense lawyers

Foreclosures Loom Concerning Home Equity Loans

December 23, 2013 by Elliot S. Schlissel

There is concern there will be a new wave of foreclosure proceedings in the near future related to home equity lines of credit. Home equity loans are a type of second mortgage. Many home equity loans are almost ten years old. The ten year anniversary usually causes the homeowners who have taken out these loans to be forced to start paying back the principal on these loans as well as the interest they have been paying since the loans were originally taken out. It is estimated there is more than $220 billion dollars of outstanding home equity loans with large financial institutions in the United States. When the consumer has to start paying back principal as well as the interest, there is a significant increase in the amount of the monthly payments.

Popularity of Home Equity Loans

Prior to the housing bubble, financial institutions aggressively marketed home equity lines of credit. These lines of credit allowed consumers to pay back more expensive financial obligations such as credit card debts. In addition, home equity loans were used by consumers to buy cars and to take vacations. As a result of banks’ aggressive marketing of home equity loans between the years 2003 and 2007, the amount of outstanding home equity credit increased from approximately $345 billion to $600 billion dollars. Financial institutions that initially approved these home equity loans were counting on the value of the home to increase to support the payment of these loans. Unfortunately the value of homes stopped rising, and during the housing bubble the home valuations were significantly reduced. Large portions of these home equity loans are now unsecured (this means in the event the house was sold, the first mortgage on the property would be satisfied but there would be insufficient funds at the time of the closing of the real estate transaction to satisfy the home equity loan).

Averting a Home Equity Loan Crisis

A home equity loan crisis can be averted if the real estate market turns itself around and real estate values start increasing again. As the real estate values increase, home equity loans will become secured again and in the event of sale of the home, there will be sufficient equity in the homes to pay off the home equity loans.

Elliot S. Schlissel is a foreclosure attorney representing homeowners fighting foreclosure lawsuits. In addition, he helps homeowners obtain mortgage modifications to keep their homes out of foreclosure.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: foreclosure proceedings, HELOC, home equity line of credit, mortgage modification attorneys, New York foreclosure attorney

Federal Government Moves Against Banks

December 16, 2013 by Elliot S. Schlissel

The United States government has brought several lawsuits against some of the largest banks in the world. The purpose of these lawsuits was to hold these banks accountable for their mortgage fraud practices. As a result of legal action, JP Morgan Chase entered into a settlement whereupon they have to pay $5.1 billion dollars to the regulator of Fannie Mae and Freddie Mac. This settlement dealt with allegations related to toxic mortgage securities packaged and sold by JP Morgan Chase which was one of the causes of the financial crisis in America. This settlement was part of a larger settlement involving a $13 billion dollar payment between JP Morgan Chase and federal and state officials with regard to the bank’s improper mortgage practices.

Bank of America

A federal jury has found Bank of America was responsible for mortgage fraud during the financial crisis. Prosecutors in the case are asking for approximately $850 million dollars in damages from Bank of America.

Banks Charged for Their Bad Behavior

It is important that the government, even though it is long after the fact, is taking the appropriate legal action to find banks responsible for their wrongdoing which created the mortgage crisis in America.

Homeowners Not Compensated

The settlement between the federal government, JP Morgan Chase and Bank of America allocates approximately $4 billion dollars in financial relief to homeowners who were victimized by improper mortgage practices. Considering the hundreds of billions of dollars homeowners have lost, this is a mere pittance. The government should have required a much larger fine from JP Morgan Chase for its improper mortgage actions and mortgage fraud.

Conclusion

The government’s action concerning illegal mortgage practices taken against large banks is too little too late!

Filed Under: Current Events, Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: defective foreclosure lawsuits, defective mortgages, financial crisis, foreclosure attorney, foreclosure crisis, foreclosure defense, mortgage modifications, New York foreclosure defense lawyers, predatory lending

Courts Flooded with New Foreclosure Cases in New York

December 12, 2013 by Elliot S. Schlissel

It is estimated approximately 45,000 foreclosure cases will be filed in the Supreme Courts of the State of New York in 2013. It is anticipated more foreclosures will be filed in 2013 than in 2011 and 2012 combined in Courts.

The increase in court filings relates to lenders’ ability to provide documentation of their foreclosure lawsuits concerning the accuracy of the foreclosure filings. There was an affirmation requirement imposed by Chief Judge Jonathan Lippman in October 2010, requiring attorneys for financial institutions bringing foreclosure proceedings to attest to the validity of the material in the foreclosure Complaint. On August 30, 2013, a “Certificate of Merit” replaced the attorney’s affirmation. The Certificate of Merit requires the financial institution and its attorneys to document the institution bringing the lawsuit has the mortgage and note and can document the assignments of the mortgage and note from prior financial institutions to them.

Foreclosure Settlement Conferences

Each foreclosure proceeding in the State of New York is subject to a Foreclosure Settlement Conference. More and more homeowners are retaining attorneys to represent them in foreclosure proceedings in New York. Homeowners are utilizing foreclosure lawyers to represent them at the Foreclosure Conferences for the purpose of pressuring financial institutions into granting the homeowners mortgage modifications. It is estimated there will be more than 100,000 Foreclosure Settlement Conferences taking place in the State of New York before the end of the year 2013. The huge number of settlement conferences is causing the legal system in New York to be overburdened.

Approximately half of the homeowners represent themselves at the settlement conferences. Unfortunately, most homeowners representing themselves have difficulties at the settlement conferences and do not obtain good outcomes. Legal representation has a significant impact on the success rate of resolving the foreclosure lawsuits to the homeowners’ benefit.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: defective foreclosure lawsuits, defective mortgages, foreclosure, foreclosure attorney, mortgage modification denial, New York foreclosure attorney

Home Loans Will Be Harder to Obtain in 2014! – Part II

December 5, 2013 by Elliot S. Schlissel

Fewer Foreclosures in the Future

The creation of the Consumer Financial Protection Bureau (CFPB) may make it more difficult for financial institutions to foreclose on homes owned by homeowners who have stopped making mortgage payments. “For every foreclosure, lenders will have to show the CFPB that there was absolutely no way they could do anything else” according to Gaffney. This will require financial institutions to offer homeowners behind in their mortgage, additional options other than foreclosure. Those options may involve short sales, refinancing, cash for keys arrangements (these are arrangements where lenders pay delinquent homeowners to hand over the keys to their residence and walk away from their homes) and other potential options. Due to the necessity of offering these alternatives, lenders may become concerned that taking back homes from delinquent homeowners will be more difficult. This may result in more conservative underwriting requirements by lenders which will end up shutting more prospective homeowners out of the marketplace to obtain mortgages.

Ability to Pay Rules

Under the new rules going into effect in 2014, financial institutions will have less latitude in evaluating prospective homeowners regarding mortgages. The lender will have to take into consideration the “ability to pay” of the prospective borrower. The following are a list of the new rules lenders will have to take into consideration in underwriting new mortgages in 2014:

Current or reasonably expected income or assets;
Credit history;
Monthly mortgage payments;
Current employment status;
Current debt obligations, (alimony, child support, credit card bills);
Monthly payments on other loans;
Monthly payments on mortgage related obligations; and,
Monthly debt to income ratio or residue income.

Debt to Income Ratio

The debt to income ratio under the new rules will create problems for many families who seek to obtain mortgages. Under the new rules going into effect on January 1, 2014, the monthly debt to income ratio will be set at a maximum of 43%. This means homeowners will not be able to utilize more than 43% of their income to pay all of their financial debts. These debts will include car loans, credit cards, personal loans, and other financial obligations over and above the prospective mortgage they seek to obtain.

Conclusion

Applying for a mortgage in 2014 is going to be more difficult. If you are interested in obtaining a mortgage, apply now!

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: defective foreclosure lawsuits, defective mortgages, financial crisis, foreclosure, foreclosure attorney, foreclosure defense, foreclosure defense attorneys, mortgage modification, Mortgage Modifications attorney, New York foreclosure attorney

Home Mortgage Loans Will Be Harder to Obtain in 2014! – Part I

December 3, 2013 by Elliot S. Schlissel

Starting on January 1, 2014, it will be more difficult for prospective homeowners in the United States to obtain mortgage loans. This is as a result of the passage of the Dodd-Frank Act. This statute was passed by Congress when the housing market melted down a number of years ago. After the housing meltdown, the federal government funded a bailout of large financial institutions. The Dodd-Frank Act is an attempt to regulate the lending industry. It is designed to protect consumer/taxpayers. In addition to the Dodd-Frank Act there is a Consumer Protection Act of 2010 which also goes into effect January 1, 2014.

“Under the new rules if [banks] want to lend correctly, by the book, they are going to [have to] leave out a lot of borrowers who would otherwise qualify for a mortgage” according to Jacob Gaffney, the Executive Editor of HousingWire.com, and HW magazine. It is estimated close to 50% of the borrowers who could obtain a mortgage in 2013, may not qualify in 2014. What do you do if you are thinking about getting a mortgage? It is suggested you obtain it in 2013.

The Consumer Financial Protection Bureau

Under the Dodd-Frank Act the Consumer Financial Protection Bureau (“CFPB”) is created. The Bureau became operational in July of 2011. The purpose of the CFPB is to prevent consumers from taking out mortgages which were beyond their ability to repay. This federal agency acts as a watchdog to see to it banks don’t start making loans to consumers they can’t afford.

According to Jacob Gaffney, the Consumer Financial Protection Bureau is a mistake. He recently stated “any company out there, especially the larger banks that have business operations outside of mortgages, are going to dwindle their mortgage operations because [the mortgage operations are] just too risky.” He further stated if there are fewer large lenders he anticipates there will be fewer mortgages offered.

Elliot S. Schlissel is a foreclosure attorney with more than 45 years of experience helping homeowners to keep their homes by fighting foreclosure lawsuits. He also helps clients obtain mortgage modifications and seeks out other alternatives to foreclosure.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: foreclosure, foreclosure attorney, foreclosure defense, foreclosure defense attorneys, mortgage modification, New York foreclosure defense lawyers

Negotiations with Bank Does Not Stop Foreclosure Lawsuit

Home Buyers Misconceptions

Foreclosure Dismissed – Citibank Has No Standing

New Mortgage Rules: Too Little, Too Late!

Stopping Foreclosure in Its Tracks

Foreclosures Loom Concerning Home Equity Loans

Federal Government Moves Against Banks

Courts Flooded with New Foreclosure Cases in New York

Home Loans Will Be Harder to Obtain in 2014! – Part II

Home Mortgage Loans Will Be Harder to Obtain in 2014! – Part I

Contact Us

Categories

LINKS

OUR WEBSITES

Latest Blogs

Foreclosure Strategies

Foreclosure And Your Credit Score

CONTACT INFO

View Our General Web Site

View Our Child Protective Website

View Our Fathers Rights Web Site

View Our Wills & Trusts Website

View Our Bankruptcy Web Site