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NEW YORK STATE LEGISLATURE MAKES IT MORE DIFFICULT FOR BANKS TO SUCCESSFULLY FORECLOSE.

April 3, 2023 by Elliot S. Schlissel

Mortgage foreclosure lawsuits in the state of New York have been made more difficult, by actions of the state legislature. In addition to foreclosure lawsuits becoming more difficult, they’re taking longer and longer to get through the courts. There are more reasons or grounds that foreclosure defense lawyers can use to have foreclosure lawsuits dismissed.

STATUTE OF LIMITATIONS

Financial institutions have six years from the time the mortgage is accelerated to bring a foreclosure case. The acceleration of the mortgage starts when the bank calls the entire mortgage due and owing. In the event, the financial institution and/or their lawyers did not move forward with the foreclosure lawsuit within six years of the acceleration of the mortgage the case can be dismissed for violation of the statute of limitations regarding a mortgage default. The violation of statute of limitations simply makes the mortgage unenforceable.

If a lender brings a foreclosure lawsuit and then for one reason or another it is discontinued, this does not stop the acceleration of the mortgage from continuing to run. Even if the foreclosure is dismissed by the court, it does not necessarily stop the six year statute of limitation from running.

DISCONTINUING THE LAWSUIT
THE SAVING GRACE FOR BANKS

There is a section of the New York Civil Practice Law and Rules, Section 205 which is the saving grace for banks that discontinue a lawsuit or have a lawsuit dismissed. This section states if the foreclosure action has been dismissed, at which time the statute of limitations has expired, there is a limited authority which allows an action to be reinstituted. If the lawsuit was originally commenced on a timely basis, but later terminated, the financial institution is permitted to commence a new lawsuit upon the same facts and circumstances within six months after the termination of the original lawsuit.

The dismissal of a foreclosure lawsuit and preventing it from being brought again is a complicated process. Should you think you have the possibility of a statute of limitations defense the best way to deal with any questions regarding this issue would be to contact an experienced foreclosure defense lawyer.

The law office of Schlissel DeCorpo have been defending homeowners regarding mortgage issues for more than three decades. They can be reached at 516-561-6645, 718-350-2802, 631-319-8262 and 914-998-0080 or emailed at Elliot@sdnylaw.com.

Filed Under: Foreclosure Tagged With: statute of limitations

Pre-Foreclosure Notice

June 3, 2022 by Elliot S. Schlissel

New York Real Property Actions and Proceedings Law Section 1304 requires lenders and servicing companies who want to bring a legal action regarding a mortgage on a residential home in the State of New York must provide 90 days written notice to the borrower regarding the home loan foreclosure before starting legal action. The notice needs to be mailed to the homeowner by regular mayor and certified mail.

90 Day Notice To Homeowners Required

Homeowners challenge the compliance with a statute on a regular basis. It is a complete defense to the foreclosure lawsuit that the homeowner was not properly served the requisite notice under Real Property Actions and Proceedings Law Section 1304.The mailing of this notice is considered a condition precedent to the initiation of the foreclosure lawsuit. The financial institution or servicing company must be in a position to provide an affidavit of service of the mailing of the pre-foreclosure notice.

There have been numerous decisions by the Supreme Court Judges and the Appellate Courts dismissing cases for the slightest mistake or deviation that the financial institution, its services and its attorneys have made with regard to failing to fulfill the strict compliance with the terms of this 90 day pre-foreclosure mailing.

Elliot S. Schlissel and his law office has been protecting homeowners in foreclosure cases for more than 3 decades. He can be reached at elliot@sdnylaw.com and 800-344-6431.

Filed Under: Foreclosure Tagged With: Pre-Foreclosure Notice

90 Day Notice Requirement Not Complied With

May 4, 2022 by Elliot S. Schlissel

The plaintiff in this case, a financial institution, had appealed an order denying it summary judgment of foreclosure. A summary judgment motion is a motion that states there is no question of fact and the financial institution should be entitled to enter a judgment of foreclosure and sale without taking the case to trial. As stated earlier, the bank lost this motion and they appealed the loss of the motion. The appeal went to the Appellate Division of the 2nd Department.

The Issue On Appeal

The issue with regard to the appeal was Real Property Actions and Proceedings Law Section 1304 (2) This section requires a homeowner receive 90 days notice prior to the initiation of a foreclosure lawsuit. The Appellate Court found the “notice required by this section shall be sent…in a separate envelope from any other mailing or notice.” This was a strict interpretation of the statute.

The Bank’s Problem

The bank in this case acknowledged the envelope it had sent to the homeowner’s contained the required notice under Real Property Actions and Proceeding Laws Section 1304 but it also included other information in 2 separate and distinct notices. The Appeals Courts ruled the bank did not comply with Real Property Actions and Proceedings Law Section 1304.The appeals court found the bank had not strictly complied with the requirements of this section of the law. Therefore the bank failed to satisfy a condition precedent before it could bring its foreclosure lawsuit. The court went on to hold this strict approach precluding any additional materials to be contained in the same envelope with the notice required under Real Property Actions and Proceedings Law 1304 “promotes stability and predictability.” in foreclosure cases. The decision of the lower court ruling against summary judgment for the plaintiff and dismissing the lawsuit was sustained.

Conclusion

Is the purpose of the 90 day notice under Real Property Actions and Proceedings Law Section 1304 is to give the homeowner’s specific notice they are in default on their mortgage and that they have 90 days to cure the default or a foreclosure lawsuit will be initiated against them to take back the house. This strict interpretation of this section by the appeals courts is designed to clarify to the homeowner the serious nature of this notice and the need to deal with being behind on their mortgage payments prior to the foreclosure lawsuit starting after 90 days.

Elliot S. Schlissel is a foreclosure defenses lawyer who has been helping homeowners form more than 3 decades. He can be reached at elliot@sdnylaw.com or 516-561-6645, 718-350-2802, 631-319-8262.

Filed Under: Foreclosure Tagged With: Judgment of foreclosure and sale

90 Day Foreclosure Notice

April 19, 2022 by Elliot S. Schlissel

Mr. Yapkowitz and his wife both defaulted on making mortgage loan payments. At that time the servicing company handling the loan payments sent them a 30 day notice of default. This took place on January 22, 2009. In February 2010, the were notified the loan servicing was transferred went to NationStar Mortgage LLC. The mortgage was then assigned to Wells Fargo Bank in April of 2013. There was a denial of a motion for Summary Judgment (to obtain a judgment of foreclosure and sale without needing to go for trial) in July of 2018. An issue was raised by the decision of the Supreme Court with regard to whether each of the homeowner’s must receive a 90 day notice separately from the other borrower.

The Law In New York

New York Real Property Actions and Proceeding Law Section 1304 requires the mailing of a 90 pre-foreclosure notice to the individuals facing foreclosure. In this case the notice to the individuals was jointly addressed to them.

The appeals court affirmed a judgment in the homeowners favor dismissing Wells Fargo’s foreclosure lawsuit. The Appeals Court in the Second Department ruled to strictly comply with real property actions and proceedings law section 1304 in a foreclosure lawsuit plaintiff must mail a 90 day notice addressed to each borrower in separate envelopes as a precondition to commencing the foreclosure case. Wells Fargo, in this case, had jointly addressed the borrowers with a 90 day notice. This did not comply with the statute and this was the reason for the dismissal of the case.

Conclusion

All of the terms of New York Real Property Actions and Proceedings Law Section 1304 regarding pre-foreclosure notice to the homeowner’s must be strictly complied with. If the statute is not strictly complied with, the foreclosure lawsuit can be dismissed.

Elliot S. Schlissel is a foreclosure defenses lawyer who has been helping homeowners form more than 3 decades. He can be reached at elliot@sdnylaw.com or 516-561-6645, 718-350-2802, 631-319-8262.

Filed Under: Uncategorized

$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

Information in the Emergency Eviction and Foreclosure Prevention Act

December 29, 2021 by Elliot S. Schlissel

The covid-19 Emergency Eviction and Foreclosure Prevention Act created a standardized hardship declaration form which tenants can submit to their landlord to prevent and halt an eviction if they have a financial hardship related to or during covid-19 that prevents them from being able to pay their rent. In addition they can qualify if someone in their household is at an increased risk of illness due to covid-19.

The form gives tenants the ability to declare a financial hardship if they have lost income. In addition if they have increased healthcare, childcare or other family expenses, they can also declare a hardship. In the event they have been unable to obtain meaningful employment because of circumstances related to covid-19 they also can qualify. Funds also be allocated to help them with moving expenses.

A tenant who obtains a copy of the standardized hardship declaration form should return it to their landlord or to the court to prevent a landlord from filing an eviction. This can be used to suspend an eviction proceeding already underway until May of 2022.

Protection Against Foreclosure and Tax Lien Sales
for Residential Property Owners

The statute also gives homeowners protections against a foreclosure sale of their home and tax lien sale of their home. This applies to residential property that involves 10 or fewer apartment units. The residential property must include the individuals primary place of residence.

Property owners will be able to obtain protection from foreclosure and tax lien sales of their homes by filing a standardized hardship declaration form with their mortgage lender or with the court. The property owners must declare in this form under penalties of perjury that they have a financial hardship. In addition, they must allege this financial hardship prevents them from paying their mortgage or property taxes related to lost income. This includes reduction in rent collections, increased expenses or their inability to obtain meaningful employment. Landlords with 10 or more rental units are excluded from these protections.

Negative Reporting and Discrimination Extending Credit

The law protects a property owner from credit discrimination too if they are behind on their mortgage payments or they have received a stay of mortgage foreclosure sale, tax foreclosure or tax lien sale on their property.

The hardship declaration can also be used to avoid credit discrimination based on mortgage arrears on the property in which they reside. This statute gives new protection to single family residences, co-ops, owner occupied multifamily primary residences and primary residences. This legislation will also forbids negative reporting to any credit agency related to a mortgage foreclosure proceeding or tax foreclosure proceedings.

Elliot Schlissel, his partner and his associates help homeowners facing foreclosure, bankruptcy or facing financial difficulties . They can be reached at 800-344-6431 or by email at info@sdnylaw.com

Filed Under: Foreclosure Defense Tagged With: Foreclosure Prevention Act

Who Is Eligible for the $539 Million Dollars Homeowners Assistance Program?

December 24, 2021 by Elliot S. Schlissel

There is approximately $539 million dollars allocated from federal funds to assist homeowners facing foreclosure and other financial issues. There are specific requirements regarding who is eligible for these funds. Homeowners who earn less than the average median income which is approximately $107,400 for a family of 3 are eligible to participate in this program. In addition, homeowners who earn less than 150% of the area median income and meets the federal requirements of “socially disadvantaged” which includes “those who have been subjected to racial or ethnic prejudice”.

In addition to the aforementioned requirements, to qualify homeowners will have to demonstrate some kind of financial hardship. Examples of financial hardships could be loss of income or added expenses that have been caused or are related to the covid-19 pandemic. The individuals who seek aid must actually live in the home that they seek the money for. The home must be their primary residence. The primary residence can be single family homes, condos, co-ops , mobile homes or 2-4 family homes.

Three Options

There are three different options within the Homeowners Assistance Program. The first option is for homeowners with a mortgage who are ending forbearance agreements and homeowners who didn’t go into forbearance and are behind on their mortgage payments. Financial relief is available to these homeowners in a five year forgivable loan for an amount of money needed to modify the mortgage in a way that can allow the homeowner to better afford going forward. Homeowners under option one can receive up to $50,000.

Option 2 is for homeowners who don’t have a mortgage but are behind on expenses such as property taxes, water bills, insurance or condo or co-op fees. The relief is a five year forgivable loan for the amount of the debt that is owed. The amount of the forgivable loan is capped at $50,000.

The third option is in addition to one of the first two options. This is for homeowners who are unemployed or who are unable to keep up with the costs of maintaining their housing. For homeowners to qualify for the third option they must be making less than 30% of the area median income before the pandemic. For a homeowner to qualify for the third option, they can receive up tp six months of future housing payments to stay afloat as the economy recovers. These six payments are in addition to the other relief and will be funded through a different group of federal funds called the Community Development Block Grants.

Portals are in the process of being developed according to the Department of Homes and Community Renewal. This will allow homeowners to apply online or over the phone through a housing counselor.

The law office of Schlissel Decorpo, LLP is available to help homeowners facing foreclosure, in foreclosure and facing other financial problems that have put their homes at risk of being lost. We can be reached at 800-344-6431 or by email at info@sdnylaw.com

Filed Under: Foreclosure Tagged With: Homeowners Assistance Program

Federal Funds Available to Help Homeowners in Foreclosure

December 20, 2021 by Elliot S. Schlissel

Homeowners facing foreclosure who are either behind on their mortgages, their property taxes or other housing related expenses can receive up to $50,000 in financial assistance through New York State’s recently approved Homeowners Assistance Fund. The State of New York has received $539 million dollars in financial assistance for homeowners pursuant to the American Rescue Plan Act. On December 2, 2021 the United States Treasury approved the implementation of a plan in the State of New York with regard to the distribution of $539 million dollars to homeowners facing financial difficulties and foreclosure.

Under the American Rescue Plan Act, households must have experienced a financial hardship caused by the covid-19 pandemic and earn at or below 150% of the median income in their area. Governor Hochul is in the process of unveiling an outreach campaign targeted to homeowner’s at risk of foreclosure. Although applications are currently not available they will be available in the near future.

539 Million Is Not Enough

Kristen Keef, the senior attorney for the Empire Justice Center has recently stated “I think everyone generally thinks $539 million will not be enough in cash assistance for homeowners”. Kristen Keef has indicated there are between 400 thousand and 500 thousand New York homeowners who are behind on their mortgage payments. From September 29th through October 11, 2021 the delinquency rate among homeowners in New York State was over 13%. The delinquency rate is higher among black and Latino homeowners. It is estimated that up to 35% of black homeowners were late on their mortgage payments. This is a rate 5 times higher than the rate for white homeowner’s that have a delinquency rate of approximately 7%. The delinquency rate for Latino homeowners has been approximately 16%.

The last prior peak delinquency rate in New York State was in 2012 when 8.3 percent of mortgage payments were more than 30 days behind. Ms. Keef went on to state “obviously they were using different data back then and different methodology, potentially than today, but I think suffice it to say that the delinquency rate is much higher today than when we thought it was really awful in 2009, following the subprime mortgage lending crisis and great recession. Ms. Keef has indicated the $539 million dollars that is available will fall far short of being able to help all of the people in need of assistance.

Filed Under: Foreclosure Tagged With: Federal Funds

$539 Million Dollars Available to Help Homeowners in Foreclosure

December 15, 2021 by Elliot S. Schlissel

On Thursday, December 4, 2021, New York State became the first state in the United States to receive United States Treasury approval for $539 million in a Homeowner Assistance Fund to aid individuals whose homes are in foreclosure. Governor Kathy Hochul is working on plans to unveil a statewide outreach program for at risk homeowners.

The Homeowners Assistance Fund will allow homeowners in New York State to receive financial aid regarding foreclosures on mobile homes, single family homes and elderly homeowners who have taken out reverse mortgages will also qualify for assistance. The Homeowners Assistance money was part of the $1.9 trillion dollar law enacted by Congress and the Biden administration to keep Americans “experiencing hardships associated with the pandemic” in their homes. The money is being allocated to both states, Native American tribes and United States territories.

The Homeowners Assistance Fund is separate from the $47 billion dollars that the United States government is giving to states to provide funds for rental assistance to tenants facing eviction. These funds are also included in the American Rescue Plan. An internet portal will eventually be set up. Homeowners will be able to file applications for assistance through the portal. This is a unique opportunity for homeowners either in foreclosure or facing foreclosure to use federal funds to deal with these issues.

The law office of Schlissel Decorpo, LLP is available to help homeowners facing foreclosure and facing other financial problems that have put their homes at risk of being lost. We can be reached at 800-344-6431 or by email at info@sdnylaw.com.

Filed Under: Foreclosure Tagged With: Homeowner Assistance Fund

Happy Thanksgiving

November 25, 2021 by Elliot S. Schlissel