Page 22

The Lack of Standing Defense in Foreclosure Lawsuits – Part I

September 18, 2015 by Elliot S. Schlissel

foreclosure help for homeowners When a financial institution brings a foreclosure lawsuit, they have a legal obligation to prove to the court they are the rightful holder of the mortgage and note they are suing on. Mortgages and notes are standardized documents. In most situations a variety of financial institutions and servicing organizations will handle the mortgage and note prior to the initiation of the foreclosure lawsuit. The financial institution who in the end brings the foreclosure lawsuit must show each of the assignments, starting with the financial institution who made the loan, was properly executed and the requisite documents were filed in the County Clerk’s office. Over and above that, the financial institution who brings the foreclosure lawsuit must have in its hands at the time the lawsuit is initiated, the original mortgage and note.

Bank Assignments

Sometimes mortgages have traveled through many different banks and servicers’ hands before a foreclosure lawsuit is brought against the homeowners. The proof of the ownership by the financial institution who brings the lawsuit revolves around the chain of assignments from one previous owner to the next. Sometimes the actual paperwork on the assignments are never completed or are not correctly done. The documentation of the assignments may only exist within the computers of the financial institutions. That is insufficient. The party bringing the foreclosure lawsuit must have the original note and mortgage and be able to show that every step of the way, between the original bank and the bank bringing the foreclosure, involved a proper assignment which was properly filed and executed by the appropriate parties.

Homeowners have been successful in dozens of lawsuits in the Metropolitan New York area in showing the financial institution bringing the foreclosure lawsuit was not a proper party due to a defect in the assignments. This causes the lawsuit to be dismissed! The theory behind the assignments is the party bringing the lawsuit has standing to sue under the terms of a contract (the mortgage and note are contracts). The initiating party in the lawsuit must have a documented ownership interest in the contract. In addition, the party having the ownership interest in the contract must have suffered some damages (the non-payment of the mortgage).

Filed Under: Foreclosure Tagged With: defective foreclosure lawsuits, defective mortgages, foreclosure, foreclosure attorney, foreclosure defense, foreclosure defense attorneys, foreclosure defense lawyers, foreclosure proceedings

Defense to Foreclosure Lawsuit: The Mortgage Company Made a Mistake

September 12, 2015 by Elliot S. Schlissel

Violations of Truth In Lending Law

The Truth in Lending Law (hereinafter referred to as “TILA”) is usually violated by a lender failing to provide the appropriate disclosure to the homeowner at the time of closing. The financial institution must specifically disclose the annual percentage rate of the loan. In addition they must disclose the finance charges, the amount financed, the total payments, the payment schedule and many other items. These disclosures are supposed to be included in the document referred to as the Truth in Lending Disclosure Statement. The lender is responsible for all of the calculations contained in the Truth in Lending Disclosure Statement being accurate.

TILA and HOEPA Violations Apply To All Subsequent Banks
Who Will Receive Assignments From The Original Lender

The actual violations of TILA and the Home Ownership and Protection Law (hereinafter referred to as “HOEPA”) are caused by the original lender not complying with these statutes. Thereafter if the loan is assigned to subsequent financial institutions these lenders are held accountable for the violations of the original bank. The only way subsequent financial institutions can avoid liability under these statutes is if they can show a reasonable person exercising ordinary due diligence would not have been able to determine the violation or improper practice pursuant to TILA or HOEPA.

Rescinding the Loan

The method in which you rescind the loan is to give written notice to the lender you are exercising your right of rescission. If you are successful in your request to rescind the loan, the financial institution must return everything you paid to them except for the payments of the loan principle. In addition, you must return the portion of the loan principle that has not yet been repaid. When you rescind the loan you can eliminate being responsible for the payment of the loan under its terms but you still can’t keep the loan proceeds. The reality is when you rescind the loan you must refinance to repay the portion of the principal you received. However, rescission of a loan will always stop a foreclosure proceeding in its tracks!

It should be noted recently the United States Supreme Court rendered a decision in the matter of Jesinoski v. Countrywide Home Loans that you don’t have to sue within the three year rescission period for rescission. You only have to provide written notice to the lender to preserve all of your rights during that three year period.

Foreclosure Defense Lawyer

If you seek to hire a lawyer to represent you in a foreclosure defense, one of the things he or she should be familiar with are the regulations involving TILA and HOEPA. The lawyer should know how these laws can be asserted by you in a foreclosure proceeding as a defense and how you can obtain damages as a result of violations of these laws. An excellent publication which can provide you with more ideas concerning the fighting of foreclosure lawsuits is Foreclosures published by the National Consumer Law Center.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: defective foreclosure lawsuits, foreclosure, foreclosure crisis, foreclosure defense attorneys, foreclosure defense lawyers, foreclosure proceedings, real estate

Unfair Lending Practices

September 9, 2015 by Elliot S. Schlissel

There are a variety of federal and state statutes which can be utilized by homeowners to fight foreclosure lawsuits. These laws were enacted to protect homeowners from illegal or improper practices by financial institutions. There are two federal laws designed to protect homeowners against unfair lending practices. These laws specifically deal with residential mortgages. The first statute is the Truth in Lending Act. This law is sometimes referred to as “TILA”. The second statue designed to protect homeowners is the Home Ownership and Equity Protection Act. This statute is often referred to as “HOEPA”. Both of these federal statutes give a homeowner the ability to sue for monetary damages. In addition, homeowners can also sue for financing costs paid by them. Under some circumstances both of these statutes allow a homeowner to have the mortgage canceled. If the mortgage is canceled, the foreclosure lawsuit will come to an end if the homeowner can make arrangements to refinance the balance of the principle due to the lender.

Rescission of a Loan

Rescission of a loan means canceling the loan. There is a concept under TILA of retroactively canceling or rescinding a loan. The technical term for this is extended rescission. A lender has to give you three days notice under certain circumstances to rescind or cancel a loan. However, your right to rescind or cancel the loan can be extended up to three years if you can show the lender violated portions of TILA. The three year period can be extended even in the event a foreclosure lawsuit has been initiated. This means in a foreclosure lawsuit if you can show a material violation of either TILA or HOEPA you can cancel the loan and by taking this action you can be successful in defending the foreclosure lawsuit. It should be noted the most common types of loans covered by either TILA or HOEPA are refinanced loans and HELOCs.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: defective foreclosure lawsuits, foreclosure defense lawyers, foreclosure proceedings, New York Foreclosure Defense Attorney

The Response To Being Served With A Summons And Complaint: The “Answer” – Part II

September 1, 2015 by Elliot S. Schlissel

“Counterclaims”

In addition to denying the allegations and submitting affirmative defenses, the homeowner can countersue the financial institution within the confines of the foreclosure lawsuit. These counter lawsuits are referred to as counterclaims. An example of a counterclaim would be a request to quiet title based on some fraudulent activity. This basically means you wish to set aside the mortgage because of fraudulent activity. Counterclaims can also be related to monetary damages based on filing a false lis pendens which damaged the title to the homeowner’s home. There are other possible counterclaims which can be brought.

Default

Homeowners who do not submit an Answer to the court and the plaintiff’s counsel default with regard to the lawsuit. This allows the attorney for the bank to take a default judgment against the homeowner. The default judgment basically indicates the homeowner did not contest the lawsuit and the bank is entitled to all of the relief requested in their Complaint. When a financial institution receives a default judgment they can move much quicker to take action to cause the home to be sold at auction. The default will also allow the bank to obtain a deficiency judgment if they plead it in their Complaint should the proceeds of the sale of the home not satisfy the balance due in the note and mortgage.

Filed Under: Foreclosure Tagged With: foreclosure defense lawyers, foreclosure proceedings, New York Foreclosure Defense Attorney

The Response To Being Served With A Summons And Complaint: The “Answer” – Part I

August 31, 2015 by Elliot S. Schlissel

When homeowners are served with a Summons and Complaint they must file a response to that Summons and Complaint. The response is referred to as an “ANSWER“. There are very specific and detailed requirements as to what should be contained in the Answer submitted by the homeowners.

To start with, the Answer should include a response to each and every numbered paragraph and claim made by the financial institution in its Complaint. The paragraphs in the homeowners’ Answer should be numbered. The numbered paragraphs in the homeowners’ Answer should respond to the numbered paragraphs in the financial institution’s Complaint. The homeowner can either admit the allegations, deny the allegations, or deny knowledge or information sufficient to either admit or deny the allegation contained in the numbered paragraph of the financial institution’s Complaint.

The attorneys for the financial institution must prove all of the allegations in their Complaint which are either denied or which the homeowner denies knowledge or information sufficient to form a belief as to the truthfulness of the allegation contained in that paragraph. The paragraphs which are either admitted or not denied by the Answer of the homeowner are deemed admitted and the bank will not have to prove the truthfulness of those allegations at the time of trial.

Affirmative Defenses

In addition to either admitting, denying, or denying knowledge or information about the allegations in the specific paragraphs of plaintiff’s Complaint, the homeowners can assert affirmative defenses in their Answer with regard to the foreclosure lawsuit. An affirmative defense is basically a legal argument as to why the bank should not be allowed to be successful in prosecuting the lawsuit. Examples of affirmative defenses can deal with the fact the mortgage is actually current, and not overdo; that documents were signed by robo-signers; the homeowner was fraudulently induced into taking the loan; the financial institution violated Federal Truth in Lending Laws, New York State banking laws or Federal banking laws, the Fair Debt Collection Practices Act; predatory lending issues; bad assignments; lack of standing to bring the lawsuit; failure to serve a 90 day notice; failure to adhere to all types of procedural foreclosure requirements and many, many other affirmative defenses.

The Answer to the bank’s Complaint must be sworn to by the homeowners and acknowledged before a Notary Public. Thereafter a copy of it must be served on the attorney for the bank. The homeowners must file a copy of the Answer with the court and the bank’s lawyers. The Answer must have attached to it an Affidavit of Service of the Answer on the bank’s attorneys.

Filed Under: Foreclosure Tagged With: foreclosure defense, foreclosure defense attorneys, foreclosure proceedings, New York foreclosure defense lawyers, pleadings in a foreclosure defense

Foreclosure Legal Documents – Part II

August 27, 2015 by Elliot S. Schlissel

The Complaint

The purpose of the Complaint in a foreclosure lawsuit is to spell out the financial institution’s claims as to why they are entitled to relief. The Complaint specifically will discuss the nature of the mortgage and the promissory note. The Complaint will also provide the address and legal metes and bounds description of the property being foreclosed upon. It will usually state the homeowner had agreed to make payments pursuant to the terms of the note and mortgage and they defaulted on these terms. The Complaint will specifically name who owes the bank money and their interest in the property being foreclosed upon. In addition, the Complaint will usually have exhibits attached to it. These exhibits, at a minimum, will be the note and the mortgage.

The Complaint will also state the relief the lender asks for. This will usually be the right to sell the property and after the sale having the net proceeds after the costs of the sale apply to the balance due under the lender’s mortgage. The bank’s complaint may also have a request they receive a deficiency judgment in the event the proceeds from the sale of the home do not satisfy the entire balance due of their mortgage costs and disbursements.

The Lis Pendens

The lis pendens is a legal document the attorney for the financial institution files in the County Clerk’s office of the county where the property being foreclosed upon is located. This document serves to provide public notice to all future individuals obtaining liens and judgments as well as any potential interested purchaser of the property the property is in the midst of a foreclosure lawsuit and is encumbered by this foreclosure proceeding. The attorneys for the financial institution bringing the foreclosure proceeding usually files the lis pendens on or about the same time the Summons and Complaint are filed with the County Clerk’s office.

Filed Under: Uncategorized Tagged With: foreclosure defense attorneys, New York foreclosure defense lawyers, pleadings in a foreclosure defense, summons and complaint

Foreclosure Legal Documents – Part I

August 26, 2015 by Elliot S. Schlissel

The Summons

The purpose of a Summons is to inform the person being sued that a lawsuit is pending against them and an Answer to the lawsuit must be filed if they seek to contest or assert their rights related to the lawsuit. Each defendant in a foreclosure lawsuit who is named must be served by a process server in New York. Homeowners who are named as defendants in foreclosure lawsuits must be served with a Summons. Also, individuals having liens on the house or creditors holding judgments filed against the house also must be served with a Summons. This gives these other individuals notice that this lawsuit may affect their rights to collect on their liens and judgments against the house. The Summons specifically provides notice to the homeowners with regard to how much time they have to respond to the initiation of the lawsuit. The Summons states if the individual is served personally, they have twenty days to respond, and if served by any other means other than personal service, they have thirty days to respond to the lawsuit. This sets the time period by which homeowners who are served with the Summons and Complaint in foreclosure cases must respond to it by filing a written Answer, acknowledged before a notary public, with the Court and with the attorney for the bank. If the homeowner fails to respond in a timely manner, their failure to submit an Answer will be considered a default. The default means the homeowner is not challenging the allegations in the lawsuit.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: court documents, foreclosure defense lawyers, New York foreclosure attorney, pleadings in a foreclosure defense, summons

Underwater Homes

August 22, 2015 by Elliot S. Schlissel

The term “underwater homes” means the home is worth less than the amount owed on its mortgage. Another way of referring to a home that has a mortgage greater than its value is “negative equity”. Most people who are in underwater homes are unable to sell their home or refinance it. At the height of the real estate crisis in America in 2012, approximately one-third of all homes in the United States were underwater. Today, approximately 15% of homes in the United States are underwater. This represents about 12% of all homeowners in the country, or approximately 950,000 homeowners have homes which are underwater. In many instances, homeowners’ homes are so far underwater that the mortgage is twice the value of their home.

Real estate values have been going up recently. However, many homes in America are so far underwater these homes will never reach a point of having equity in them.

Lack of Funds and Bad Credit

This can result in the homeowner trying to rent a home when they don’t have sufficient funds to pay the security and one month’s rent on a rental apartment or rental home. They also will most likely have a low credit score because they are behind on their mortgage payments. Landlords do not like to rent homes to families that have bad credit.

What Should Homeowners With Underwater Homes Do?

The best recommendation would be to consult with a foreclosure defense attorney. What homeowners of underwater homes should not do is move out and abandon their homes. The fact their home is underwater and they are behind on their mortgage, does not mean they are in imminent threat of losing their home and being forced out of it. In most situations, it is in the homeowner’s best interest to continue to live in their home. Many homeowners do not understand the full implications of simply moving out of their home, abandoning it and not paying their mortgage.

Conclusion

Don’t move out of your home solely if you are behind on your mortgage payments. Try to obtain a mortgage modification. Seek out an experienced foreclosure lawyer and review your options with him or her.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: financial crisis, foreclosure attorney, foreclosure defense lawyers, foreclosure proceedings, New York foreclosure attorney, New York foreclosure defense lawyers, Underwater Homes

New York Banks Agree to Maintain “Zombie Properties”

August 18, 2015 by Elliot S. Schlissel

foreclosure defense for homeowners on Long Island Eleven banks in the State of New York have agreed to establish a program to maintain and monitor homes in foreclosure which are vacant. They have taken this action because of pressure from the New York State Attorney General, Eric Schneiderman, and complaints by neighbors surrounding these properties which have been made to the financial institutions. These eleven banks and credit unions represent approximately three-quarters of all of the houses in foreclosure in the Metropolitan New York market.

Bank To Check To See If Homes Are Vacant

The banks have agreed they will check all properties within 60 days of the loans becoming delinquent. The checking will involve an external inspection. In addition, the financial institutions will check each property in foreclosure every 25 to 35 days thereafter. If they reach a decision that the foreclosed home has been abandoned by its owners, they will post a notice with their contact information on it. In addition, they will change one of the door locks. They will also board up broken windows and doors and remove nuisance features. In addition, they will take action with regard to safety issues. All of these properties will be placed on a list to be shared with municipalities throughout the State.

The Eleven Banks

The eleven banks which have agreed to this process are: Ridgewood Savings Bank, M&T Bank, Bethpage Federal Credit Union, Astoria Bank, Green Tree Servicing, PHH, Northstar, Ocwen, CitiMortgage, Bank of America, and Wells Fargo.

More and More Zombie Homes

Attorney General Eric Schneiderman who had previously submitted legislation to the State Legislature, noted that zombie foreclosures have increased more than 50% recently. He claims there are approximately 17,000 zombie homes being foreclosed on. Zombie homes place burdens on the communities in which they are located. These burdens deal with maintenance costs, property tax issues, and vandalism of these homes.

Elliot S. Schlissel is a foreclosure lawyer representing homeowners throughout the Metropolitan New York area. His motto is, “I will keep you in your home.”

Filed Under: Foreclosure, Foreclosure Defense Tagged With: foreclosed properties, foreclosure attorney, foreclosure crisis, foreclosure defense attorneys, foreclosure defense lawyers, zombie homes

Foreclosure Lawsuits Time Barred by the Statute of Limitations

August 14, 2015 by Elliot S. Schlissel

The statute of limitations for bringing a foreclosure lawsuit in the State of New York is six years from the time the mortgage is accelerated by the bank (called due) or from the initiation of the foreclosure legal action, whichever occurs first.

The real estate crisis in America started many years ago. Foreclosure defense attorneys are now coming across cases initiated by banks where the statute of limitations defense bars the banks from moving forward with their foreclosure case. It should be noted the statute of limitations is a defense to the foreclosure lawsuit. However, it does not remove the bank’s lien from the property. What you end up with in a case where the statute of limitations defense is effectively plead, a bank is unable to collect on their mortgage but their mortgage still remains a lien on the property preventing it from being sold without it being repaid.

Acceleration of the Mortgage

A mortgage requires that a homeowner make payments over a period of time. The usual length of mortgages are 15 or 30 years. During the period the homeowner is making payments, all they owe each month is the amount of their payment. The acceleration of the loan involves the bank usually sending a letter to the homeowner saying it is calling the entire balance of the mortgage due and owing. This means, if the homeowner sends a payment in the correct monthly amount to the bank they will usually reject it claiming they want the entire mortgage paid in a lump sum payment. It should be noted however, if the homeowner is several months behind and pays all the arrears, the bank will usually reinstate the mortgage.

After the bank sends the acceleration letter or initiates a foreclosure lawsuit, if the homeowner takes action to acknowledge the debt, it can start the statute of limitations running all over again.

Conclusion

If there is any possibility the bank can be barred by moving forward with a foreclosure, it is extremely important the statute of limitations be plead as an affirmative defense in the homeowners’ Answer to the Summons and Complaint.

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

The Lack of Standing Defense in Foreclosure Lawsuits – Part I

Defense to Foreclosure Lawsuit: The Mortgage Company Made a Mistake

Unfair Lending Practices

The Response To Being Served With A Summons And Complaint: The “Answer” – Part II

The Response To Being Served With A Summons And Complaint: The “Answer” – Part I

Foreclosure Legal Documents – Part II

Foreclosure Legal Documents – Part I

Underwater Homes

New York Banks Agree to Maintain “Zombie Properties”

Foreclosure Lawsuits Time Barred by the Statute of Limitations

Contact Us

Categories

LINKS

OUR WEBSITES

Latest Blogs

CHAPTER 13 BANKRUPTCY

Foreclosure Strategies

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