Mortgages

The Note and Mortgage

June 11, 2026 by Elliot S. Schlissel

If the homeowner seeks to borrow money to buy a home or refinance a home, they will apply to a financial institution to obtain these funds. A note is an agreement between the homeowner and lender creating a personal obligation to repay the financial institution back the money that is borrowed. The note will include various terms, interest rates, payment schedules and the information involving late charges and other issues.

The Mortgage

The mortgage is a separate and distinct contract from the note. The mortgage gives the financial institution a security interest in the homeowner’s home. The homeowner is pledging their home as collateral for the loan. The mortgage will often contain terms stating what the lender can do if the terms of the note and mortgage are not met by the homeowner. Those terms include initiating a foreclosure lawsuit seeking to sell the homeowner’s home at an auction sale at the end of the case.

Closing

There is often a sit down closing when a homeowner buys a home and takes out a mortgage. At the closing the homeowner will appear with their lawyer, sellers will appear with their attorney and the financial institution will have their attorneys handling the execution of the loan, the note and mortgage documents. At the end of the closing the buyer pays the seller and takes title to the home. There will be a title closer representing the title company at the closing. The title closer will pick up the transfer documents and make sure the transaction is filed and recorded with the proper authorities.

The law firm of Schlissel DeCorpo LLP has been helping families deal with mortgage and foreclosure problems for more than 30 years. We can be reached at 718-350-2802, 516-561-6645 or 631-319-8262 or by e-mail at info@sdnylaw.com.

Filed Under: Mortgages Tagged With: The Note and Mortgage

THE MORTGAGE

December 23, 2025 by Elliot S. Schlissel

When homeowners buy a home, they usually have to obtain funds from a financial institution to consummate the transaction. The financial institution loans the homeowners money and takes out a mortgage on the home. The homeowners must sign a promissory note and that is secured by a lien on the house and the lien on the house is called a mortgage. A promissory note is a legal obligation for the homeowner to pay the debt.

The Mortgage Lien

A promissory note is an unsecured debt. However, the lien created by the mortgage on the home makes the note secured by the home. The mortgage gives the financial institution a security interest in the property. If the homeowner fails to pay the mortgage on a timely basis, the financial institution brings a foreclosure lawsuit to sell the home so they can be paid.

Foreclosure Defense Solution

There are many things that can be done to avoid a home going into foreclosure. Forbearance agreements, mortgage modifications and refinancing are some possible solutions for homeowners’ financial situations that caused them to fall behind on their mortgage payments. In addition, a homeowner can also go into a Federal Bankruptcy Court to file a bankruptcy. This stops the foreclosure from moving forward in New York State Supreme Court.

Filed Under: Mortgages Tagged With: THE MORTGAGE

Reverse Mortgages And What You Need to Know About Them

January 8, 2025 by Elliot S. Schlissel

Reverse mortgages are generally available only to homeowners who are 62 years of age or older. The purpose of the reverse mortgage is to allow the homeowner to turn the equity in their home into cash while retaining the ownership of their home. This is often used by seniors who may find themselves real estate rich and cash poor. This is not necessarily a route that every senior should take. It is strongly advised that you consult with an attorney who deals with reverse mortgages before you get involved in placing a reverse mortgage on your home.

Interest on Reverse Mortgages

Interest on reverse mortgages is compounded. This means the homeowner ends up paying interest on both the principal and the interest which has already accrued each and every month of the loan. Compounded interest rates are different than the simple interest rates. Compounded interest rates increase the amount of the loan and cause it to grow at an increasingly faster rate than the standard mortgage. In most cases the large part of the equity in the home ends up being used up by the reverse mortgage.

Non-Recourse Loans

Reverse mortgages are non-recourse loans. This means when a homeowner defaults on the loan or the loan cannot otherwise be repaid, the lender cannot look at your other assets or the homeowners’ estate assets to meet the outstanding balance on the mortgage loan.

Filed Under: Mortgages Tagged With: Reverse Mortgages And What You Need to Know About Them

Video : What happens when a homeowner misses their mortgage payments

January 6, 2025 by Elliot S. Schlissel

Filed Under: Mortgages Tagged With: What happens when a homeowner misses their mortgage payments

Foreclosures: The Note and Mortgage

July 9, 2024 by Elliot S. Schlissel

When a homeowner decides to buy a home he or she must obtain the finances to pay for the home. The homeowner usually goes to a financial institution, submits an application and if they are approved they receive a loan. There are two (2) parts to the loan them receive. The first part is a note.

The Note

The note is a written agreement that the financial institution is lending a homeowner money and it contains the homeowner’s agreement to repay the money. The note includes the terms and conditions of the repayment: such as whether the note is to be repaid in 15 years or 30 years. It also includes the rate of interest charged on the loan and the late charges, fees and expenses. In simple terms, a note is an IOU.

The Mortgage

The mortgage is a contract that gives the financial institution, lender, a lien on real property. In simple terms, the home is the collateral that secures the note for the financial institution. The terms of the mortgage spell out what the financial institution can do should the requirements of repayment in the note and mortgage are not met by the homeowner. What the mortgage lender usually does is they foreclose on the mortgage for the homeowner’s failure to make the timely, monthly payments required by the note.

Filed Under: Mortgages Tagged With: Foreclosures: The Note and Mortgage

$539 million dollars for The American Rescue Plan Act

January 3, 2022 by Elliot S. Schlissel

$539 million dollars has been appropriated pursuant to an act of Congress for New Yorker’s who are in foreclosure or behind on their mortgages. New York State has received a block grant of $539 million dollars from the federal government. These funds are to be distributed to homeowner’s who are behind on their mortgage or their property taxes or are behind in other housing related expenses. Homeowners who qualify can receive up to $50,000 from the New York recently approved Homeowner’s Assistance Fund. This is not a loan. This is a grant. These fund were appropriated by the federal government to assist homeowners in each state that had fallen behind on expenses related to their mortgages. New York States share of this fund was $539 million.

The American Rescue Plan Act

The 539 million dollars allocated by the federal government to the State of New York was part of the American Rescue Plan Act. Homeowner’s who seek to receive the fund under this federal program must have experienced a financial hardship related to the covid 19 pandemic. New York Governor Hochel is in charge of the program to distribute these funds.

The following is a list of the documents that will be necessary to submit to the portal created by New York State for homeowners’ to qualify to receive up to $50,000 from the New York State homeowner assistance fund:

Proof of Ownership

Copy of your deed, property tax bill, co-op statement, mortgage statement or homeowner’s insurance policy.

Proof of Identity

Copy of passport, social security card, drivers license, Military ID or naturalization card.

Income Documentation

From all adult members of the household: tax returns, two most recent paychecks/paystubs or 1099 forms.

In the event you receive income based benefits such as SNAP, HEAP, public assistance or section 8 you will need to provide documentation of this.

Proof of Delinquency

In addition to all the above-referenced items, you will need proof of your delinquency on making your current housing payments. The State requires a mortgage statement showing a default or a delinquency notice on co-op/condo charges. If your property taxes are behind, you need to show the amount that is past due on a delinquent tax notice.

This program is estimated to be opening for applications on January 3, 2022 on a first come, first serve basis. This means when the fund is used up, and the 539 million is spent everybody who applies after these funds are spent will be closed out.

My office will be available to help homeowners apply for funds under this program.

Elliot S. Schlissel, his partner and their associates have been helping homeowners deal with foreclosure related issues for more than 3 decades. He can be reached at elliot@sdnylaw.com or at 516-561-6645.

Filed Under: Mortgages Tagged With: The American Rescue Plan Act

Lack of Standing Defense Waived

February 17, 2020 by Elliot S. Schlissel

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.

Filed Under: Foreclosure Defense, Mortgages Tagged With: Financial Institution, Loan

Homeowner Successful In Showing Bank Had No Standing to Bring A Foreclosure Lawsuit

December 30, 2019 by Elliot S. Schlissel

Beneficial Homeowners Services Corp. had provided a loan to Carpenter when he bought his home. They claimed with regard to the loan Carpenter had signed a promissory note and said note was secured by a mortgage on his house.

Carpenter failed to make his mortgage payments. This caused Beneficial to start a foreclosure lawsuit. In the foreclosure lawsuit Carpenter alleged various affirmative defenses. One of those affirmative defenses was that Beneficial lacked standing to bring the lawsuit.

The Summary Judgment Application

Beneficial brought a motion for summary judgment. They alleged in this motion there was no question of fact that Carpenter took out a loan, signed the note and they held a mortgage on his property. Therefore they should be entitled to a judgment of foreclosure. This was the second time they had brought the same motion.

Bank Not The Correct Party

Carpenter alleged as a defense the bank was not the appropriate party to bring the lawsuit. The formal defense in legal terms was the bank lacked standing to bring the foreclosure action.

The Standing Party

Justice Robert Muller who sits in Clendon County, in upstate New York, ruled that Beneficial failed to establish standing as a matter of law. They had submitted a power of attorney whereby an assignee Caliber was authorized to act as attorney in fact for Beneficial. However, Justice Muller found the alleged power of attorney was insufficient to establish Beneficial had standing to prosecute the alleged default by Carpenter. Judge Muller pointed out the affidavit submitted by Beneficial did not clarify how Wells Fargo Bank came to act as a custodian for the note. Judge Muller also pointed out Beneficial failed to provide documentation of the alleged relationship between Caliber and Beneficial. This was the basis for Judge Muller to deny the plaintiff’s application for summary judgment.

Elliot S. Schlissel, Esq. is a foreclosure lawyer who represents clients throughout the Metropolitan New York area in foreclosure matters and bankruptcies. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com. His office offers free consultations to individuals who have foreclosure related issues.

Filed Under: Foreclosure, Mortgages Tagged With: foreclosure lawsuit

A Court Bars Enforcement of Mortgage Due to Violation of Statute of Limitations

September 20, 2019 by Elliot S. Schlissel

In a case before Supreme Court Justice Debra Silber who sits in Kings County, a homeowner brought an action for a declaratory judgment. The declaratory judgment was pursuant to Real Property Actions and Proceedings Law Section 1501.4. The homeowner wanted the court to declare that the mortgage on the homeowner’s property was not enforceable. The homeowner’s claim was it was not enforceable because the six year statute of limitations had expired. The homeowner asked Judge Debra Silber to have the mortgage cancelled, discharged an struck from the records of the New York City Register

Summary Judgment

The homeowner asked the court pursuant to a summary judgment motion declaring that on the basis that there were no issues of fact disputed that a trial would not be required on the issue of the mortgage being unenforceable due to a six year statute of limitations acted as a time bar.

Acceleration of the Mortgage

Issues were raised in this case with regard to the acceleration of the mortgage and the deceleration of the mortgage. Judge Silber granted plaintiff’s application. She found that the plaintiff had shown on her papers that she was entitled to a summary judgment cancelling and discharging the mortgage on her property. The homeowner had shown that the mortgage had been accelerated on or about April 16, 2009. The homeowner commenced her action to discharge the mortgage and have it cancelled on February 10, 2018. Since more than six years had expired, the homeowner was entitled to a judgment dismissing and cancelling the mortgage of record on her property.

Elliot S. Schlissel, Esq. is a foreclosure attorney. He has been representing homeowners in foreclosure cases throughout the Metropolitan New York area for more than 45 years. Elliot and his firm actively litigates the defense of foreclosure lawsuits against homeowners. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Filed Under: Mortgage Modification, Mortgages Tagged With: mortgages

Issues Concerning Notice of Foreclosure Mailing

September 9, 2019 by Elliot S. Schlissel

In a case before Justice Robert Quinlan, who sits in Suffolk County Supreme Court, a foreclosure lawsuit was brought by Deutsche Bank National Trust Company, as trustee. The action was to foreclose a mortgage on a residential property. Certain affirmative defenses in the homeowner’s answer to the bank’s complaint were dismissed by Judge Quinlan. However, Judge Quinlan did not grant the bank a full summary judgment decision striking defendant’s answer. He set the action down for a limited trial on plaintiff’s proof of defendant’s default in payment; its standing to bring the action; its proof of mailing of the notice of default required by the mortgage; and the sufficiency of the notices required under Real Property Actions and Proceedings Law Section 1304 (which involves the notice of foreclosure proceeding being brought) as well as the proof of their mailings.

The Homeowner’s Defense

The homeowners’ motion to dismiss claimed the bank could not establish the mailing of the notices under Real Property Actions and Proceedings Law Section 1304. Judge Quinlan found the homeowner’s arguments that they did not receive the notices was not sufficient to have the case dismissed. He found all the bank’s lawyers had to do was to establish the notices were mailed.

Conclusion

This is a very bad decision. The purpose of mailing is to give the homeowner the pre-foreclosure notice. If the homeowner never received the notice, there was no communication and the statutory intent behind giving the homeowner notice has not been met. In this case there are still issues to be dealt with at trial. However, I disagree with the Judge’s decision with regard to adequacy of an affidavit of mailing being sufficient with regard to the pre-foreclosure notice by the bank’s attorneys.

Elliot S. Schlissel, Esq. is a foreclosure lawyer. He has been defending homeowners 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, Mortgages Tagged With: Foreclosure Mailing, Property, Real Property Actions

The Mortgage

Closing

The Mortgage Lien

Foreclosure Defense Solution

Interest on Reverse Mortgages

Non-Recourse Loans

The Note

The Mortgage

The American Rescue Plan Act

Proof of Ownership

Proof of Identity

Income Documentation

Proof of Delinquency

The Nielsons

The Mortgage Assignment

The Appeal

Conclusion

The Summary Judgment Application

Bank Not The Correct Party

The Standing Party

Summary Judgment

Acceleration of the Mortgage

The Homeowner’s Defense

Conclusion

Contact Us

Categories

LINKS

OUR WEBSITES

Latest Blogs

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