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Defense to Foreclosure Lawsuit: The Mortgage Company Made a Mistake – Part II

help for homeowners facing foreclosureFinding Errors By The Bank’s Servicing Organization

You should maintain organized records with regard to all transactions concerning financial institutions who hold your mortgage and their servicing organizations. There is a federal statute called the Real Estate Settlement Procedures Act. It is commonly referred to as “RESPA”. This provides you with a manner in which you can challenge many of the types of errors and improper practices engaged in by banks and their servicing organizations. It also gives you an ability to obtain the information necessary to make challenges.

To obtain the information under the RESPA law you should send the servicing organization by certified mail, a written request identifying you as the homeowner who entered into the loan and the account and information regarding the loan. The servicer has a legal obligation under the RESPA statute to notify you within 5 business days of their receipt of your qualified written request acknowledging your request was received by them. Thereafter they have 30 business days to provide you the information you requested be produced or explain to you in writing why it cannot be produced. If it cannot be produced they must provide you with the name and contact information of an individual with whom you can follow up to obtain this information. It should be noted the 30 business days to comply with your request can be extended by 15 business days if the servicing organization gives you written notification within the 30 day period of their request for an extension and the reasons why they are requesting this extension. Once you have made this request and the servicer is working on a response, they cannot report to a credit bureau information regarding alleged overdue payments that relate to the information contained in your request. If you should request this information after the foreclosure lawsuit has been initiated it will continue during the term that the request is being processed. In the event the servicing organization you requested the information from is no longer the servicing organization and there is another servicing organization which has replaced this servicing organization your written request must be sent not more than one year after the transfer to the new servicing organization.

Statutory Damages

Should the servicer fail to comply with your request, you can take legal action against the bank and you are entitled to $2,000 in statutory damages plus reimbursements for all of your attorney’s fees and in addition you are entitled to be compensated for any other losses or damages you might have. Unfortunately, due to the lobbying efforts of banks, this remedy will not cause the foreclosure action to stop or have any impact on the foreclosure lawsuit.New York foreclosure defense attorney

Defense to Foreclosure Lawsuit: The Mortgage Company Made a Mistake – Part I

foreclosure defense attorney for homeownersBanks and their servicing companies make mistakes. Homeowners, at one time, blindly believed whatever a bank did and whatever documents they submitted were always correct. Since the mortgage crisis started in 2008, there have been dozens of publications of inappropriate actions, mistakes, issues involving robo-signing and bad practices by financial institutions. As a result of these disclosures, attorney generals in all 50 states as well as the United States Attorney General have brought lawsuits which have resulted in banks all over the country paying hundreds of billions of dollars in fines and penalties.

Katherine M. Porter, a law professor, conducted a study based on the filings of 1,300 Chapter 13 bankruptcy cases. Her study revealed, in a majority of these bankruptcies, documents submitted by the holders of the mortgage contained errors (Misbehavior and Mistake in Bankruptcy Mortgage Claims, Texas Law Review, 2008.)

What Type Of Mistakes To Look For

Mortgage servicing companies cannot always be counted on to give you credit for all of your mortgage payments. They may charge excessive fees in violation of state laws. They may fail to advise you that you can redeem your property by becoming current on your mortgage payments. In the event you seek to reinstate your mortgage, and you receive a statement from the mortgage servicing company with regard to what they claim is necessary to be paid to reinstate your mortgage, that reinstatement must have an accurate itemization of what they claim is due them. An example of a mortgage servicer mistake would be charging you for a reappraisal or home inspection on your home when the mortgage documents don’t make it an obligation of yours to pay these fees. The following are examples of common mortgage servicer mistakes:

  • the bank engaged in coercive improper collection practices concerning their mortgage
  • your mortgage payments get applied to someone else’s account
  • the bank receives your mortgage payment but doesn’t give you credit for it
  • the bank buys insurance on your property and charges you for it in spite of the fact you already had insurance on your property
  • the bank fails to pay your property taxes in a timely manner and a penalty is assessed or the bank fails to pay your property taxes altogether even though they have received the money in escrow for your property taxes
  • the bank charges you late fees and property expense fees even though your mortgage payments were made on a timely basisNew York foreclosure defense attorney

Bank Punished For Negotiating In Bad Faith: Court Limits Their Interest Rate to 2%

homeowner's attorneyJustice Debra Silber sitting in a Supreme Court foreclosure court in Kings County, New York recently had a case involving bad faith in negotiations by Deutsche Bank. In this case the defendant moved for, and was granted, an Order which confirmed a report of a special referee made at the foreclosure conference which found that Deutsche Bank had acted in bad faith in violation of New York Civil Practice Law and Rules section 3408(f).

Bad Faith by Bank

Justice Silber, in her decision, found the actions and inactions by Deutsche Bank clearly indicated an absence of good faith as was contemplated by the New York Statute. During a period of ten months the bank delayed the underwriting of husband’s mortgage modification application. The referee found Deutsche Bank’s failure to act during a 10 month period was a dilatory tactic. Justice Silber concluded the husband had sought to obtain a mortgage modification for a period of 6 months. He had made 18 appearances at foreclosure mediation conferences. In determining the appropriate sanction to punish Deutsche Bank for its failure to work with the defendant in this case regarding his mortgage modification application, the court decided to reduce the interest rate to 2% on the balance of the mortgage which accrued after August 1, 2010. This was the date Justice Silber deemed the bank should have approved the husband’s HAMP mortgage application. In addition, the bank and its loan servicer organization were barred from collecting attorney’s fees with regard to the foreclosure lawsuit which accrued after August 1, 2010.

Conclusion

If a bank fails to negotiate in good faith mortgage modifications at foreclosure court mediation conferences, there are remedies available to the homeowner.

foreclosure defense lawyersElliot S. Schlissel is a foreclosure attorney who litigates foreclosure cases. He seeks to keep homeowners in their homes.

Ocwen Financial Corporation Fined $150 Million Dollars

foreclosue lawyer for homeownersOcwen Financial Corporation, the largest sub prime mortgage servicing company in the United States, has entered into a consent order with the State of New York to pay $150 million dollars to New York homeowners and to modify and reform its practices concerning the servicing of mortgage obligations. The settlement was made with the Department of Financial Services of the State of New York.

Payment to Former and Current Homeowners

The terms of the settlement require Ocwen to pay $50 million dollars in restitution to both current and former homeowners who had dealings with Ocwen. Ocwen is to pay $10,000 to each homeowner who lost their homes pursuant to a foreclosure proceeding since 2009. In addition, Ocwen had to pay a $100 million dollar civil penalty by the end of December 2014. The State of New York is going to utilize these funds for foreclosure relief, housing for families whose homes have been foreclosed on and for community development purposes.

The $150 million dollar consent agreement with Ocwen was the result of an investigation between 2010 and 2011 concerning wrongful foreclosures, poorly documented foreclosure practices, “robo-signing”, the submission of inaccurate affidavits to courts, and sloppy, improperly maintained business records and paperwork.

Conclusion

In the event you are a homeowner whose home is currently in foreclosure or was foreclosed upon by Ocwen since 2009, you are entitled to compensation pursuant to Ocwen’s settlement with New York State.

foreclosure lawyer New York and Long IslandElliot Schlissel is a foreclosure defense attorney. He helps keep clients in their homes. He obtains mortgage modifications for clients and he fights for client’s rights in foreclosure lawsuits.

Bad Faith Shown by Bank in Court Proceedings

To watch today’s video blog, please click on the link below:

http://youtu.be/XNGu7k7AqqE

Elliot S. Schlissel is a foreclosure attorney representing homeowners throughout the Metropolitan New York area for more than 20 years.  He can be reached for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.  The phones are monitored 24 hours a day, 7 days a week.

Bank Sought To Foreclose On Decedent’s Home

Please click on the link below to view today’s video blog:

http://youtu.be/GLexagaYJ8Q

Elliot S. Schlissel is a foreclosure defense attorney.  He and his associates have been helping homeowners remain in their homes for more than 20 years.  Elliot assists his clients in obtaining mortgage modifications.  He can be reached for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.

Couple Receives a Million Dollar Award Against Bank of America

foreclosure defense on Long IslandNelson and Joyce Coniglio had received more than 700 collection calls during a 4 year period when they fell behind on their mortgage payments. The Coniglios hired an attorney to try to make Bank of America stop calling them. Unfortunately, this didn’t work. A Federal Judge sitting in Florida recently awarded the Coniglios $1 million dollars related to the “unrelenting phone calls from Bank of America.”

Bank of America had an excuse for the phone calls. Their Senior Vice President, Dan Frahm, said the calls weren’t to collect a debt, but solely to help the couple avoid a foreclosure lawsuit.

Lawsuit Against Bank of America

The Coniglios were forced to file a lawsuit in Federal Court to stop the harassing phone calls from Bank of America. They received a default judgment when Bank of America failed to respond to their lawsuit in a timely manner. The lawsuit stemmed from Bank of America making hundreds of robo-calls to the Coniglios. Sometimes they received as many as 5 phone calls a day. Jason Coniglio, the parties’ son, stated “we would be out to dinner and they would ring my mother’s cell phone, then they would ring my dad’s cell phone and then when we got back to the house, there would be another message on the answering machine.” Their son, Jason, works as a mortgage broker. He diligently tried to help his parents get a mortgage modification. Unfortunately, he could never get anyone from Bank of America to cooperate with him. Their lawsuit was pursuant to the Telephone Consumer Protection Act. The damages were $500 per call and they were tripled. The Coniglios’ attorney stated “the borrowers, the people who own those phones, you do have a right to privacy. And when they say to stop, you have to stop.”

Bank of America had asked the court to reconsider this large award against them. However, the judge denied their request.

Conclusion

When banks misbehave, they can be punished by taking legal action against them.

foreclosure defense lawyer in New YorkElliot Schlissel is a foreclosure defense lawyer. He represents families throughout the Metropolitan New York area who have problems dealing with banks related to mortgage modifications and foreclosure lawsuits.

Bank’s Bad Faith When Negotiating Mortgage Modifications

To watch today’s video blog, please click on the link below:

http://youtu.be/Zj0VcXXNwl4

Elliot S. Schlissel is a foreclosure defense lawyer.  He and his associates have been helping homeowners stay in their homes for more than 20 years.  His phones are monitored 24/7.  Please call for a consultation at 516-561-6645, 718-350-2802 or send an email to schlissel.law@att.net.

Appellate Court Approves Remedy for Lender’s Bad Faith

foreclosure defense attorney for homeownersThe Appellate Division of the Second Department, an appeals court, has recently rendered a decision establishing remedies for homeowners when their lenders fail to act in good faith during the course of mandatory foreclosure settlement conferences. The appellate court in the case of US Bank National Association v. Williams upheld the lower court decision which cancelled interest from accruing and also prevented the bank from charging the debtor with their legal fees during the foreclosure conference period.

Homeowners’ Remedies

This case gave homeowners remedies to use against banks when they act in bad faith during foreclosure conference negotiations.

In this case, the bank continually asked the borrower for further documentation during the course of the foreclosure settlement conferences. However, it turned out even though the bank was asking for more and more documentation during the 13 month period, they had a ban which would have prevented them from granting a mortgage loan modification.

The Appellate Court’s Decision

The appellate court stated in its decision, “under these circumstances, the Supreme Court providently exercised its discretion in finding that US Bank was not entitled to collect interest accrued as a result of its wrongful conduct.” Under Civil Practice Law and Rules section 3408(a)(f), “both the plaintiff and defendant shall negotiate in good faith to reach a mutually agreeable resolution, including a loan modification, if possible.”

The court stated in its decision, attorneys representing mortgage holders have been complaining that in many cases financial institutions refuse to offer mortgage loan modifications but still come to the mandatory foreclosure court conferences and demand the homeowners provide them with detailed documentation to underwrite mortgage modifications. During these periods of time, the interest and the attorneys fees is accruing on the homeowner’s mortgage. Foreclosure defense lawyers have been continually asking courts for sanctions against financial institutions when they act in bad faith concerning these mandatory mortgage modification court conferences.

Conclusion

There exists remedies for homeowners when they are dealing with banks who refuse to negotiate mortgage modifications in good faith.assistance for homeowners facing bankruptcy

Judge Eliminates All Past and Future Interest in a Foreclosure Lawsuit Due To Bank’s Bad Faith

foreclosure defense on Long IslandLaSalle Bank had brought a foreclosure legal action in the Supreme Court in Suffolk County. In its pleadings the bank claimed they were both the owner and holder of the note which was secured by a mortgage. The defendant in the case did not deny he had defaulted in making 4 mortgage payments. His default was directly related to the fact he was in jail. However, he brought an application to the court requesting all interest on the foreclosed home be eliminated. He claimed LaSalle Bank had unreasonably delayed the legal proceedings in the foreclosure action. They had requested numerous duplicative document demands.

Numerous Duplicative Document Production Requests

The case was heard before Justice Jeffrey Arlen Spinner sitting in the Supreme Court in Suffolk County. Justice Spinner found there were numerous duplicative document production demands. The homeowner had appeared 24 separate times for mandatory settlement conferences. Judge Spinner found LaSalle Bank had not complied with HAMP guidelines. In addition, he found they failed to negotiate with the homeowner in good faith. Justice Spinner found due to LaSalle’s bad faith and the bad faith of their servicing agents, all present, past and future interest on the mortgage in this foreclosure lawsuit was to be eliminated.

Conclusion

Banks need to cooperate to make the HAMP work or they will be punished by judges.helping homeowners stay in their homes

Foreclosure Defense in Valley Stream, Lynbrook, Baldwin, Malverne, Freeport, Oceanside, Long Beach, Elmont, Lakeview, West Hempstead, Hempstead, Merrick and Bellmore, New York

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