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Elliot Schlissel is a foreclosure defense lawyer helping homeowners stay in their homes throughout the Metropolitan New York area. He and his associates can be reached for consultation at 516-561-6645 or 718-350-2802 or send an email to schlissel.law@att.net.
New York Real Property Actions and Proceedings Law (RPAPL) Section 1304 requires financial institutions and loan servicing companies to provide homeowners, on residential property, at least 90 days notice before initiating a foreclosure lawsuit. The banks and/or their loan servicers must also provide the homeowner with the form of notice prescribed by the statute which provides among other things notice to the homeowner that a foreclosure lawsuit may be initiated. This notice is referred to as the 90 day pre-foreclosure notice.
The statute states the notice must be served “by registered or certified mail and also by first class mail to the last known address of the borrower, and if different, to the residence that is the subject of the mortgage.”
Compliance With RPAPL Section 1304
Many lenders seek to meet the compliance requirements of this section by submitting an affirmation by their attorney with a summary judgment motion that the certified and regular mailing requirements have been complied with. However the attorneys for the lenders have no personal knowledge these events actually took place. Therefore their affirmation that they took place is meaningless! Attorney’s affirmations should not be considered by courts to justify compliance with RPAPL section 1304.
Affidavits of Loan Service
Some lenders try to comply with RPAPL section 1304 by including in their motions for summary judgment representations by the loan servicer that the mailing requirements under RPAPL secion 1304 have been complied with. This is also nonsense! The loan servicer is usually hired by the financial institution long after the mailing requirement under this section needed to be complied with. The servicer therefore has no personal knowledge as to whether this section of the Real Property Law was complied with.
Conclusion
The failure of the financial institution to comply with RPAPL section 1304 provides a basis for an affirmative defense to a foreclosure lawsuit. A motion can be made by the homeowner’s attorney to dismiss the lawsuit for the failure of the financial institution to comply with this section. In other situations it can be used to cause a court to deny a summary judgment motion on behalf of the bank because they have not fulfilled the prerequisites necessary to bring the foreclosure lawsuit.
Elliot S. Schlissel is a foreclosure lawyer representing homeowners throughout the Metropolitan New York area who are behind on their mortgages, seeking mortgage modifications, or have been served with notices concerning foreclosures. The office offers free consultations.
Has the bank initiated a foreclosure action against you? How do you know the bank has acted appropriately with regard to fulfilling their obligations as a financial institution? The question then becomes, is the foreclosure lawsuit defective?
There are a variety of reasons that a bank’s foreclosure proceeding against you may be defective. The first issue is whether the bank has all of the proper documents to have legal standing to foreclose on your property. Another issue is how significant misrepresentations, predatory lending issues, or issues involving sub-prime mortgages affected your case.
Exposing Defects in Foreclosure Cases
How do you expose a defect in a foreclosure case? To start with, all of the documents related to the mortgage need to be reviewed. In addition, a detailed Answer to the Summons and Complaint needs to be filed with both the court and opposing counsel. Numerous affirmative defenses concerning potential defects in the case need to be alleged. Thereafter a document demand must be made seeking copies of all of the documents the bank has in its file related to this matter. In addition, interrogatories or bills of particulars can be served on the bank asking a variety of questions concerning the origination of the mortgage, the term of the mortgage and various issues pertaining to the mortgage.
Sloppy Paperwork by Banks
When the real estate industry was booming in 2006 through 2009, banks became overwhelmed with the number of applications being submitted to them. In many situations, their paperwork was sloppy, unprofessional, improperly handled, involved misstatements, false statements, and applications submitted by mortgage brokers that did not reflect the financial circumstances of the prospective mortgagor. Underwriters often lost documents concerning mortgage applications. They also misplaced documents or simply incorrectly handled the underwriting of the mortgage. It is the job of the foreclosure defense attorney to bring all of these problems to light when a bank seeks to foreclose against the homeowner. It is then presented to a judge with the hope the judge will carefully review the situation and reach the conclusion the bank has acted improperly.
Legal Rights and Options
So how do you protect your legal rights? What are your options? The only way you will find an answer to these questions is to consult with an experienced, dedicated foreclosure defense attorney. You can call our office for a free consultation. Our phones are monitored 24/7. Our office phone numbers are 516-561-6645 and 718-350-2802.
To watch today’s video blog, please click on the link below:
Elliot S. Schlissel is a foreclosure lawyer who has been representing homeowners for more than 45 years. His goal is to keep homeowners in their homes. He defends homeowners in foreclosure lawsuits and helps his clients in obtaining mortgage modifications. He and his associates can be reached for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.
Please click on the link below to watch today’s video blog:
Elliot S. Schlissel is a foreclosure lawyer. He has helped hundreds of New Yorkers stay in their homes. He fights foreclosure lawsuits throughout the Metropolitan New York area and helps his clients obtain mortgage modifications. Elliot and his staff of attorneys can be reached 7 days a week. He and his associates can be reached by calling 516-561-6645 or 718-350-2802 or by sending an email to schlissel.law@att.net.
If you are behind on your mortgage payments, do not despair. Foreclosure lawsuits can be fought in the courts in New York. If you receive a letter from your financial institution indicating your home is going into foreclosure or you are served with a Summons and Complaint, your best defense is to go on the offense.
Legal action can be taken to protect your home. The first thing which needs to be done is to have the situation properly evaluated. Should you apply for a mortgage modification? Can you qualify for a forbearance agreement? Should you litigate the foreclosure? Has the bank been involved in predatory lending, violations of Truth in Lending Laws, violation of New York State or Federal banking laws? Have they served you with the 90 day notice? Have they acted properly during the course of negotiations for mortgage modifications? There are numerous issues which need to be analyzed and dealt with as part of a foreclosure defense strategy.
Bankruptcy
Is bankruptcy the right solution for you? Should you file for bankruptcy now or wait until later stages of the foreclosure proceeding? Is a Chapter 7 bankruptcy the appropriate bankruptcy to file or should you file a Chapter 13 which involves a payment plan? Again, this depends on the circumstances involved in each case. Each family’s circumstances and needs are different.
Victim of Predatory Lending?
Predatory lending generally deals with unfair business practices or unethical business practices which lenders sometimes engage in. If the prospective mortgage holder was deceived or agreed to an unfair or abusive mortgage term, it may involve predatory lending. Due to the nature of predatory lending, most homeowners who have been subject to predatory lending end up having their homes foreclosed upon, and if appropriate action isn’t taken, lose their homes.
Predatory lending practices can be exposed as part of a foreclosure defense during the course of a foreclosure lawsuit. When served with a Summons and Complaint the homeowner can allege in his Answer the defense of predatory lending.
Conclusion
Should you find yourself behind on your mortgage, facing a foreclosure lawsuit or in the middle of a foreclosure lawsuit, the best way to protect your interests and keep your family in your home is to hire an experienced, dedicated foreclosure defense attorney.
In the case of Federal National Mortgage Association v. Singer, Index No. 850039/2011, Justice Moulton sitting in a Supreme Court Foreclosure Part in New York County, ruled the two banks involved should forfeit more than $100,000 in interest on loans to Mr. & Mrs. Singer. This was a sanction for the failure of the banks to act in good faith with regard to negotiating a mortgage modification with the Singers.
History of the Case
In 2004, the Singers bought two apartments in Manhattan which were next to each other. They gutted and renovated the apartments. When they purchased each of the apartments they took out a separate mortgage on each of the two apartments. After the apartments were renovated, New York taxed the two apartments as a single residence. In 2008, the Singers had a downturn in their income. They used all of their savings to try to keep up with the mortgage payments, taxes, common charges, and expenses which totaled in excess of $5,000 per month. The mortgages totaled more than $500,000 and had interest rates of 7.4% and 6.75%.
Mortgage Consolidation
Mrs. Singer, on numerous occasions, tried to consolidate the two mortgages at a lower interest rate. Initially, she applied to Countrywide, the original lender on the mortgages. Countrywide refused to extend the term or lower the interest rates on the mortgage. Countrywide took the position the Singers did not qualify as distressed borrowers. Their monthly payment on each loan did not exceed 31% of their combined monthly income. In response to this argument Judge Moulton said the bank’s analysis “resulted in an absurd result.” He said this was symptomatic of “many of the faults that plague the current system of refinancing residential property that is in default and/or in foreclosure.”
The loans were eventually sold to Bank of America and the Federal National Mortgage Association (Fannie Mae). Approximately a year and a half later a foreclosure lawsuit was initiated. The Singers again applied for a loan modification. Five months later their modification request was denied. The Singers also offered to pay $18,000 in accumulated interest as part of the loan modification.
Counsel for the Singers had on various occasions suggested balloon mortgages. These mortgages enable residents to make their mortgage payments and help the banks to receive the total amount due and owing to them. This is especially true in light of the fact the apartments owned by the Singers were worth substantially more than the $500,000 in combined mortgages.
Settlement Court Conference
The Singers had attended 5 court settlement conferences. At each of these conferences both Bank of America and Fannie Mae refused to meaningfully negotiate mortgage modifications.
Conclusion
Banks who do not cooperate in negotiating mortgage modifications in good faith can be punished by the courts.
Please click on the link below to watch today’s video blog:
Elliot S. Schlissel is a foreclosure lawyer. He has helped hundreds of New Yorkers stay in their homes. He fights foreclosure lawsuits throughout the Metropolitan New York area and helps his clients obtain mortgage modifications. Elliot and his staff of attorneys can be reached 7 days a week. He and his associates can be reached by calling 516-561-6645 or 718-350-2802 or by sending an email to schlissel.law@att.net.
A recent case in Kings County before Justice Yvonne Lewis sitting in the Supreme Court, Foreclosure Part, deals with the 90 day notice of default. New York Real Property Actions and Proceedings Law Section 1304 requires that a financial institution must serve a 90 day notice accelerating the mortgage and calling it due and payable before a foreclosure proceeding can be initiated.
In this case the bank sought to confirm the appointment of a referee granting a judgment of foreclosure and sale. The lawsuit alleged the defendants defaulted under the terms of the note and mortgage. In addition, the suit claimed it was not a “high cost” or “sub-prime” loan and it was actually a commercial mortgage made to a commercial borrower. The financial institution claimed the mortgage was made for investment purposes.
Bank’s Failure to Serve A 90 Day Notice
The defendant maintained the bank had failed to comply with Section 1304 concerning the serving of a 90 day notice of default. Counsel for the plaintiff presented arguments alleging there was no need for service of a notice of default under Section 1304. They claimed they were exempt from this requirement because this was a commercial loan and not a residential loan. The bank’s position was that Section 1304 only applied to residential mortgages. The defendant contended the loan was a personal loan and the mortgaged property was used as his place of principle residence.
Judge Yvonne Lewis found there was a question as to whether the 90 day notice was required, and if it was required, was it properly served upon the defendant. Due to her concern regarding this issue, she denied the bank’s request for a judgment of foreclosure.
Conclusion
The 90 day notice needs to be served in all residential foreclosure proceedings. The failure of financial institutions to serve it can be plead as an affirmative defense in the defendant’s Answer to a foreclosure lawsuit brought by a bank.
To watch today’s video blog, please click on the link below:
Elliot S. Schlissel is a foreclosure defense attorney who helps homeowners fight foreclosure lawsuits and obtain mortgage modifications. He and his associates are available for consultation by calling 516-561-6645 or 718-350-2802 or send an email to schlissel.law@att.net.
