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Foreclosure Proceeding Dismissed: Bank Had No Standing

March 28, 2014 by Elliot S. Schlissel

A foreclosure lawsuit was brought by Deutsche Bank in Kings County, New York, Supreme Court. The Judge in the Part was Larry Martin. During the course of the proceeding, Deutsche Bank brought a motion for summary judgment and the defendant, Johnson, cross moved for summary judgment and dismissal of the complaint. Summary judgment motions basically state there are no issues of fact that need to be litigated. With regard to a summary judgment motion, a party has to establish that there are no facts in controversy concerning the position that party takes. Here, each side was seeking a win based on the idea the other party was completely wrong. Deutsche Bank argued, in their application to the court, Johnson had not made payments under the note. Johnson, in his motion, challenged the debt. He also claimed that Deutsche Bank was not the owner of the note. Johnson had requested the original note, the mortgage and a mortgage modification that she had allegedly entered into, be produced. Johnson claimed that Deutsche Bank had failed to properly assign these mortgages.

No Evidence of a Written Assignment of the Mortgage

Judge Larry Martin, in his decision, held evidence was not produced of a written assignment of the note from Deutsche Bank to OCWEN. Judge Martin held Deutsche Bank had to prove the note was physically delivered to it before November 3, 2011, the day the action was commenced. The attorneys for Deutsche Bank said that they had the original note and mortgage. However, the law firm did not provide documentation as to the time they came into possession of the note and mortgage.

Judge Martin, in his decision, held the only evidence Deutsche Bank submitted with regard to their standing to bring this lawsuit was inconclusive. The fact that they had failed to submit a written assignment of the note or documentation to establish the physical delivery of the note caused their claim to fail. Johnson’s motion to dismiss the lawsuit was granted.

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

Judge Sanctions Bank for Foreclosure Activities: The Appellate Division Reverses the Sanctions

March 26, 2014 by Elliot S. Schlissel

foreclosure defense lawyers John Lucido, who had been a mortgage broker, had taken out a mortgage loan, in March of 2007, of approximately $500,000 with regard to his Rocky Point, Long Island New York home. He was unable to make his mortgage payments and in 2009, Bank of America brought a foreclosure lawsuit in Suffolk County, New York.

Foreclosure Court Conferences

There were numerous foreclosure mediation conferences. However, Lucido had been ill and his wife had died during the course of the litigation. This complicated the issues that were dealt with at the foreclosure conferences. At the time of the foreclosure mediation conferences, Lucido represented himself. The conferences were held pursuant to New York Civil Practice Law and Rules Section 3408, which states “both the plaintiff and the defendant shall negotiate in good faith to reach a mutually agreeable resolution with regard to residential foreclosure lawsuits.”

Judge Spinner’s Ruling

The case was heard before Judge Spinner sitting in a Foreclosure Court Part in Suffolk County. Judge Spinner, in April 2012, ruled Bank of America had “deliberately acted in bad faith.” He had made this ruling because they had delayed six months in producing a pooling and servicing agreement. Judge Spinner also stated Bank of America gave “material misstatements of fact” which had been calculated to deceive the court and also cause delay of the court proceedings. Judge Spinner went on and held the bank had misinformed the court that the pooling and servicing agreement which controlled Mr. Lucido’s mortgage specifically forbade principal reductions. Later the bank acknowledged there was no bar to principal reductions in the pooling and servicing agreement.

Judge Spinner in his decision forever restrained Bank of America from “demanding, collecting or attempting to collect, directly or indirectly” sums related to the $493,209 mortgage that were either “interest, attorneys’ fees, legal fees, costs and disbursements.” He had held the bank could only collect principal and any funds advanced by the bank related to property taxes or insurance on the property. In addition, Judge Spinner imposed $200,000 exemplary in damages against the bank. This cut the bank’s principal to $293,219.

The Appellate Division Overrules

The Appellate Division of the Second Department, an appeals court, overruled Judge Spinner’s decision in its entirety. The Appellate Division held he did not have the authority to impose that level of penalties against Bank of America. The Appellate Division held the bank’s conduct did not justify the sanctions imposed by Judge Spinner and sent the case back to Judge Spinner for further proceedings. The appellate court took into consideration Lucido’s “unfortunate situation.” However, they held the record on appeal “reveals the conduct of the plaintiff in this case was not so egregious as to merit the imposition of sanctions against it.” The fact Bank of America refused to give Lucido a principal reduction and they had delayed in producing documents did not, in and of itself, amount to a failure to act in good faith.

Conclusion

Judge Spinner’s remedy was unusual, but there have been other cases that have upheld the tolling of interest when banks do not negotiate in good faith. I believe Judge Spinner was looking to send a message to financial institutions to be more cooperative at the foreclosure mediation conferences. Unfortunately, the Appellate Division did not agree.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: foreclosure defense attorneys, foreclosure mediation, foreclosure proceedings, mortgage modification

No Right to A Mortgage Modification

March 24, 2014 by Elliot S. Schlissel

foreclosure defense attorney A foreclosure proceeding was brought in Suffolk County before Supreme Court Justice Jerry Garguilo. Rivera had executed the mortgage and the personal obligation and he had failed to make his mortgage payments in a timely manner. Rivera had applied to Aurora Loan Services for a mortgage modification. They had taken the position he did not qualify for a mortgage modification.

It Is Alleged The Mortgage Company Acted in Bad Faith

Rivera brought a proceeding before Judge Garguilo claiming that Aurora Loan Services had acted in bad faith because they failed to offer him a mortgage modification or any other agreement to allow him to keep his house from being foreclosed on. It was presented to the court that Rivera was in bad health and could not appear in court. Rivera had a son-in-law by the name of Saburro. He was a loan officer. He came to court and testified Rivera was in bad health and that is why he did not appear in court. Saburro also testified Aurora Loan Services had repeatedly offered Rivera trial mortgage modifications. And at the end of each mortgage modification they would pull the rug out from under Rivera and advise him the mortgage modification was not going to be made permanent.

Judge Holds No Bad Faith

Justice Garguilo found that there were no trial mortgage modifications made. Judge Garguilo took the position the foreclosing bank has no obligation to modify a mortgage. Aurora’s failure to offer Rivera a mortgage modification was not unconscionable and it did not amount to bad faith. Aurora simply had no legal obligation to give Rivera a mortgage modification. It was a totally discretionary decision on their part. Judge Garguilo went on to state in his decision “it was clear the case was not one where a lender wrongfully accepted large sums of money and then refused home retention relief.” The court therefore ruled Aurora Loan Services did not act in bad faith because they did not provide Rivera with a mortgage modification.

Elliot S. Schlissel is a foreclosure defense lawyer representing homeowners throughout the Metropolitan New York area whose homes have been foreclosed on by financial institutions.

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

Foreclosure Case Dismissed: Bank Does Not Obtain Personal Jurisdiction Over The Defendant

March 20, 2014 by Elliot S. Schlissel

foreclosure defense attorney Justice Frances Francois Rivera sitting in a Supreme Court Part in Kings County recently had a case involving JP Morgan Chase Bank and a Mr. Birica. JP Morgan Chase Bank had started a foreclosure lawsuit in Kings County. The lawsuit claimed that Mr. Birica was the owner of the property involved in the foreclosure. It further stated in the Summons and Complaint he was also the individual who executed the personal loan documents and mortgage documents with regard to the property. The attorneys for JP Morgan Chase took the position Mr. Birica had defaulted on his payments with regard to the mortgage.

Vacating the Default Judgment

Mr. Birica brought an application to vacate the default and he submitted a Notice of Appearance and Verified Answer to the Complaint in the foreclosure lawsuit brought by JP Morgan Chase. In addition, he brought an application to dismiss JP Morgan Chase’s Complaint based on the theory that Chase lacked legal standing to bring the lawsuit and they had failed to properly serve the Summons and Complaint in the foreclosure proceeding on her.

The attorneys for Birica submitted a motion to the court which claimed she did not receive a copy of the Summons and Complaint in a timely manner. She therefore was unable to answer it. She claimed she resided in Rye, New York and the Summons and Complaint was served to an address in Queens, New York. The attorneys for Chase presented documentation that their process server had served Birica at an address in Rego Park by delivering a copy of the Summons and Complaint to her daughter and by thereafter mailing a copy to the address in Rego Park.

Judge Francois Rivera in ruling on the applications made by the attorneys for Birica found JP Morgan Chase did not meet its burden of proof establishing the Summons and Complaint in the foreclosure proceeding were properly delivered or mailed to Ms. Birica’s dwelling. He therefore dismissed the foreclosure lawsuit.

Conclusion

Financial institutions are held to a very high standard with regard to obtaining personal jurisdiction of individuals in foreclosure lawsuits.

Elliot S. Schlissel is a foreclosure defense attorney with more than 45 years of legal experience. His office has helped scores of families in the Metropolitan New York area stay in their homes. Elliot has previously been the President of the Commercial Lawyers Conference of New York, a creditors Bar Association, and he has extensive experience in litigating foreclosure defense cases and helping his clients obtain mortgage modifications.

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

Foreclosure Fraud – Part II

March 18, 2014 by Elliot S. Schlissel

Rent to Buy Scams

A common foreclosure scam involves individuals approaching a homeowner whose home is in foreclosure and offering to have them refinance the home at a much lower interest rate. Unfortunately, the way this scam works is the homeowner is presented with documents that involve the transfer of the deed from the homeowner to the alleged foreclosure counseling company. The homeowner eventually finds out that he or she does not own their home and is now renting their home from the alleged foreclosure counseling company. Eventually the counseling company brings an eviction proceeding to evict the homeowner from their home and they thereafter try to sell the property or bring another rent paying tenant into the property.

The rent to buy scams also sometimes involve the tricking of the homeowner into signing documents that are presented to be applications for a home loan. However these applications actually are documents utilized to transfer the title of the property. Homeowners should be especially wary of signing any type of blank forms. In this type of scam the scammer presents a blank form to the homeowner and says “don’t worry we will fill it out and work with the bank to obtain a lower interest loan.” When the form is eventually filled out it turns out to be a document transferring title to the house.

Hire Attorneys Experienced in Defending
Homeowners In Foreclosure Lawsuits

The best way to ensure you are not being scammed and that your rights are being protected is to hire an attorney with a significant background in real estate and foreclosure defense matters to represent you with regard to foreclosure related issues concerning your home. When you hire a qualified attorney, you should request that you receive copies of all documents and paperwork in your file to make sure that the attorney is doing all that is necessary to protect your rights and interests.

Elliot Schlissel is an attorney with more than 45 years of experience representing clients in real estate related legal matters. Elliot and his team of attorneys have one of the busiest foreclosure defense law firms in the Metropolitan New York area. Elliot helps his clients stay in their homes, obtain mortgage modifications and take all other necessary actions to avoid losing their homes in foreclosure.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: defective foreclosure lawsuits, foreclosure attorney, foreclosure defense, foreclosure fraud, foreclosure proceedings, New York foreclosure attorney

Beware of Mortgage/Foreclosure Fraud – Part I

March 11, 2014 by Elliot S. Schlissel

foreclosure defense attorneys The number of homes going into foreclosure on a national basis has been decreasing. However, the number of homes in the Metropolitan New York area that have been placed into foreclosure by financial institutions has not been going down during the past few months.

Homeowners who find themselves with financial difficulties can be vulnerable to fraudulent mortgage and foreclosure schemes. In California, a woman by the name of Jewel Hinkles swindled approximately 1300 homeowners out of $5,000,000 through a group of companies which she claimed were in the business of buying distressed properties from the homeowners. This is one of many examples of fraudulent foreclosure/mortgage schemes that have been perpetrated on individuals finding themselves in financial difficulty and unable to make mortgage payments on their home.

Avoiding Foreclosure Scams

The most important thing to take into consideration in avoiding being defrauded is if a deal sounds too good to be true, it probably is fraudulent! Foreclosure proceedings are subject to public disclosure in the courts. It is therefore easy for criminals who seek to scam homeowners by obtaining information about their foreclosure and making false representations to the beleaguered homeowner.

Another type of foreclosure scam which is common involves alleged foreclosure counseling companies. Sometimes these companies solicit business with flyers dropped off in homeowners’ mailboxes or they actually come knocking on the door of homeowners whose homes have been placed into foreclosure by financial institutions.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: defective foreclosure lawsuits, defective mortgages, foreclosure defense, foreclosure defense attorneys, New York foreclosure attorney, predatory lending

Methods of Avoiding Foreclosure

February 28, 2014 by Elliot S. Schlissel

Everyone who buys a home expects to be able to make their mortgage payments. Unfortunately, there are numerous hardships and problems in one’s life that may cause you to fall behind in making your mortgage payments. A death in the family, the loss of a job, a divorce, a disability or medical problem are just a few of the hardships that can occur that can cause you to fall behind on your mortgage payments.

Foreclosure is the start of proceedings to take back a home for non-payment of the mortgage. There are a number of strategies that can be utilized by a homeowner to avoid having their home being foreclosed.

Loan Forbearance Agreement

A loan forbearance agreement is a temporary arrangement between the homeowner and the bank. The purpose of the forbearance agreement is to give the homeowner a reasonable period of time to catch up on his or her mortgage payments. This gives the homeowner time to catch his or her breath! If the homeowner makes the agreements under the forbearance agreement they can become up to date on their mortgage.

Loan Modifications

The Home Affordable Mortgage Program (HAMP) was created by President Obama during his first administration. It still remains in effect in his current second term as President of the United States. This is a federal program that virtually all financial institutions are part of. The benefit of this program is it gives the homeowners who have fallen behind on their mortgage a chance to reduce their mortgage payments. The unfortunate part of the program is that it is an extremely poorly managed program by the individual banks and only approximately 1 in 5 people who apply for mortgage modifications are successful in obtaining them. In addition to President Obama’s mortgage modification program, many banks have their own internal mortgage modification programs. In theory, mortgage modification programs take into consideration the home’s current value, interest rates and the ability of the homeowner to make payments under this program.

Negotiated Short Sale

A negotiated short sale is a transaction where the homeowner contacts the bank and advises the bank they would like to sell the house which is currently under water (currently worth less than the amount of the mortgage). The bank, in a short sale, appraises the house and in the appropriate situation agrees that the house can be sold for less than the amount of the mortgage and the bank will satisfy the mortgage for less than they are owed. The writer of this article is not a big proponent of short sales. Short sales should only be undertaken at the end of the foreclosure process to avoid a deficiency judgement.

Bankruptcy

In the event you file a bankruptcy, you obtain a stay from a Federal Court that prevents a lender from moving forward with a foreclosure lawsuit in a New York State Court. In a Chapter 13 bankruptcy you enter into a plan to become current with your mortgage over a period of up to 5 years. In a Chapter 7 bankruptcy you eliminate the personal loan obligation portion of your debt. Therefore if the bank forecloses on your home, all they are entitled to receive is what they obtain from the sale of the house. They will not be able to obtain a deficiency judgment against you.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: bankruptcy, foreclosure, foreclosure defense attorneys, foreclosure proceedings, Mortgage Modifications attorney

Qualifying for a Mortgage

February 26, 2014 by Elliot S. Schlissel

foreclosure defense attorneys The purchase of a single family home is usually the largest single purchase made by Americans during the course of their lifetime. Before you can purchase a home, it is strongly suggested you look into your ability to qualify for a mortgage to help you pay for the home. There are a number of significant factors taken into consideration by financial institutions when underwriting a mortgage.

Are You Employed?

The underwriters of mortgages at financial institutions are interested in your employment history. They are especially interested in if you are currently employed. If you are self employed, the underwriters may want detailed information about the capacity in which you are self employed. If you are working for a company or business, they are going to ask you questions as to how long you have worked in this position for, and what were your prior positions. It is especially important that you maintain good records concerning your past three years tax returns, bank statements concerning your checking and savings accounts, pay stubs and other material necessary to verify your employment history.

The Down Payment

If you are looking to obtain a conventional mortgage, most banks will loan you up to 80% of the cost of the house. This means you will have to come up with 20% of the funds on your own. In cases where you have a problematic credit history, you may need to put down more than 20% of the cost of the house as a down payment.

Closing Costs

There are numerous closing costs related to buying a home in New York. There are bank fees. There are underwriting fees. There are points payable to the bank. There are attorneys’ fees for your attorney and the attorney for the financial institution. There is the prepayment of taxes on the house. There is the payment of casualty insurance on the house. You will have to reimburse the seller for all of the oil in the oil tank. In addition, there are numerous other types of closing costs. It is estimated that closing costs in New York will run anywhere from $5,000 to $15,000 to purchase a home. You should carefully look into the closing costs with the attorney representing you on the real estate transaction.

Credit Scores

The financial institution will order credit reports for those individuals whose names will appear on the mortgage of the home. You should obtain a copy of your credit report in advance. In the event there is inaccurate information on your credit report, you should immediately take action to correct this. In the event your credit score is not high enough to meet your bank’s requirements to obtain a mortgage, there are a variety of things you can do to boost your credit score prior to submitting a mortgage application.

The Mortgage Loan Application Process

The process of obtaining a mortgage loan can be aggravating for the prospective homeowners. Financial institutions currently are asking for significant amounts of information from a prospective homeowner to determine whether you are a good risk and that you have the ability to repay your mortgage loan. Hopefully this article will open your eyes as to the various areas you should look in before contacting a financial institution and starting the process of trying to obtain a mortgage.

Elliot Schlissel has been representing clients in real estate related matters for more than 45 years. Elliot and his staff of attorneys represent homeowners who are buying and selling homes. In addition, Elliot and his staff of attorneys provide foreclosure legal defense for their clients.

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

Foreclosures Hit Long Island Hard

February 18, 2014 by Elliot S. Schlissel

foreclosure defense attorney The foreclosure crisis on Long Island is much more serious than in the rest of the country. On a national basis, approximately 2% of all homes were in foreclosure during the month of January 2014. However, on Long Island, 6.3% of all homes were in foreclosure. That is three times the national average.

Long Island real estate has not recovered as fast as the rest of the nation for a variety of reasons. The court rules concerning foreclosures are designed to protect homeowners. However, the legal protection afforded homeowners impacts on the length of a foreclosure process through the courts in New York. During the 2013 calendar year, 663 homes were sold at auction in foreclosure on Long Island.

Rising Home Prices

Home prices have been rising on Long Island. The rising home prices allows more homes to be sold quickly and should have an impact on reducing the number of homes in foreclosure. The average home price, excluding homes on the east end of Long Island, during the last quarter of 2013 were sold for approximately $360,000. This is up approximately 3% from 2012.

Superstorm Sandy Impacts Homes on Long Island

The large number of homes on Long Island damaged by Superstorm Sandy has had a significant impact on the number of homes going into foreclosures. Many homeowners spent all of their savings bringing their homes back to liveable condition after Superstorm Sandy. However some of those homeowners overspent and fell behind on their mortgages while trying to rectify the problems caused by Superstorm Sandy to their homes.

Delinquency Rates on Long Island Are High

It is estimated approximately 10% of all mortgage loans on Long Island are more than 90 days past due. This is double the national average of 5% of mortgage loans which are 90 days past due.

Elliot Schlissel and his associates maintain one of the busiest foreclosure defense law firms in the Metropolitan New York area. Elliot has been interviewed on radio and in newspapers concerning foreclosure defense issues and is widely considered to be one of the best and well known foreclosure defense lawyers in the Metropolitan New York area.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: financial crisis, foreclosure attorney, foreclosure defense, foreclosure proceedings, New York foreclosure attorney, New York Foreclosure Defense Attorney

Hidden Expenses When Buying A Home – Part II

February 13, 2014 by Elliot S. Schlissel

foreclosure defense attorney Renovations to the Home

It is usually necessary for new homeowners to do small to moderate renovations to their new home. Things such as painting, changing fixtures, modifying kitchens and bathrooms, can amount to tens of thousands of dollars very quickly. It usually costs homeowners anywhere from 1 to 2% of the purchase price of a home to do minor modifications or renovations to the home to make it more livable and/or suitable for their life.

New Appliances

So you have just bought your new home. When you look at your kitchen, do you really want all of the old appliances? If you are going to buy new appliances, this is the right time. However, appliances are not inexpensive. Purchasing new appliances or upgrading old appliances can run into thousands of dollars.

Termite Inspections

If your home is made of wood, you need to have a termite inspection. Termites have been around since the beginning of time. In many areas of the country, forests were originally cut down to make room for the development of communities. When they cut the forests down, the termites didn’t leave. They went into the ground and they feasted on the new homes that were built.

A large portion of the homes in the northeast of the United States during the course of their lifetime will be subject to termite infestation. Before purchasing a new home it is important you have a termite inspection to make sure your home is termite free. If termite damage exists, the termite damage should be repaired before you close on the purchase of your home. In addition to termites, there are other wood destroying insects that you need to be concerned with. Carpenter ants also can cause significant damage to homes. The cost of termite inspections and/or repairing the damage done by termites can be an unforeseen expense when purchasing a new home.

Escrow for Taxes and Insurance

When you close on a home, the bank will usually require you deposit a certain amount of money in escrow related to your annual tax and insurance payments. Banks require 1/12 payments each month to be made by the homeowner related to the hazard insurance costs on their property and the real estate and school taxes that are due on their property. At the time of closing, banks normally pick up at least one month’s taxes in advance and the balance of the month from the date of closing until the first date of the next month.

Elliot Schlissel and his associates are foreclosure defense lawyers. They litigate foreclosure lawsuits on behalf of homeowners and help them obtain mortgage modifications. Elliot and his associates have been helping homeowners keep their homes for more than 45 years.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: costs of purchasing a home, foreclosure, mortgage modification, New York foreclosure attorney, real estate

Foreclosure Proceeding Dismissed: Bank Had No Standing

Judge Sanctions Bank for Foreclosure Activities: The Appellate Division Reverses the Sanctions

No Right to A Mortgage Modification

Foreclosure Case Dismissed: Bank Does Not Obtain Personal Jurisdiction Over The Defendant

Foreclosure Fraud – Part II

Beware of Mortgage/Foreclosure Fraud – Part I

Methods of Avoiding Foreclosure

Qualifying for a Mortgage

Foreclosures Hit Long Island Hard

Hidden Expenses When Buying A Home – Part II

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