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Suing Large Financial Institutions

foreclosure defense attorneyThe Consumer Financial Protection Bureau is reviewing new regulations which will put the brakes on a contentious practice called mandatory arbitration. Under mandatory arbitration rules, consumers must take disputes they have with financial institutions to third party mediators. This prevents them from going into courts and presenting their issues to judges. Consumer advocates feel this practice benefits large financial institutions, credit card issuers and financial service providers to the detriment of consumers.

Fine Print in Consumer Contracts

Most Americans are unaware that there is fine print in many consumer contracts which requires they submit complaints concerning issues, such as disputed charges on financial accounts, to arbitration. Consumer advocates claim arbitrators are often biased and rule against consumers. It should be noted, in many situations, rulings by arbitrators are not appealable.

Arbitration Process

The arbitration process started out as a good idea. Its intent was to give consumers an inexpensive way to challenge bank practices. However, financial institutions have manipulated the arbitration process. When they feel an arbitration firm does not rule in their favor on a regular basis, they shop around for other arbitration companies. This gives arbitration companies a reason to rule in favor of banks so they will hire them again and again.

George Slover with the Consumer’s Union, the public policy and advocacy arm of Consumer Reports Magazine, stated “this proposal is a tremendous step towards cleaning up a system that has heavily favored companies over consumers who were wronged.”

The new proposal before the Consumer Financial Protection Bureau does not create a complete ban on arbitration. It proposes new rules which would allow unhappy consumers to start lawsuits against banks or other financial institutions as a group, through class actions, if they feel it is appropriate instead of submitting to arbitration.

foreclosure defense lawyerElliot S. Schlissel is a foreclosure lawyer representing consumers throughout the Metropolitan New York area. He litigates foreclosure cases against financial institutions. His goal is to keep his clients in their homes.

The Lack of Standing Defense

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

https://youtu.be/IXqt27nalqU

Elliot Schlissel is a foreclosure defense lawyer helping homeowners stay in their homes throughout the Metropolitan New York area.  He and his associates can be reached for consultation at 516-561-6645 or 718-350-2802 or send an email to schlissel.law@att.net.

Foreclosure Notice Requirement

foreclosure lawyerNew York Real Property Actions and Proceedings Law (RPAPL) Section 1304 requires financial institutions and loan servicing companies to provide homeowners, on residential property, at least 90 days notice before initiating a foreclosure lawsuit. The banks and/or their loan servicers must also provide the homeowner with the form of notice prescribed by the statute which provides among other things notice to the homeowner that a foreclosure lawsuit may be initiated. This notice is referred to as the 90 day pre-foreclosure notice.

The statute states the notice must be served “by registered or certified mail and also by first class mail to the last known address of the borrower, and if different, to the residence that is the subject of the mortgage.”

Compliance With RPAPL Section 1304

Many lenders seek to meet the compliance requirements of this section by submitting an affirmation by their attorney with a summary judgment motion that the certified and regular mailing requirements have been complied with. However the attorneys for the lenders have no personal knowledge these events actually took place. Therefore their affirmation that they took place is meaningless! Attorney’s affirmations should not be considered by courts to justify compliance with RPAPL section 1304.

Affidavits of Loan Service

Some lenders try to comply with RPAPL section 1304 by including in their motions for summary judgment representations by the loan servicer that the mailing requirements under RPAPL secion 1304 have been complied with. This is also nonsense! The loan servicer is usually hired by the financial institution long after the mailing requirement under this section needed to be complied with. The servicer therefore has no personal knowledge as to whether this section of the Real Property Law was complied with.

Conclusion

The failure of the financial institution to comply with RPAPL section 1304 provides a basis for an affirmative defense to a foreclosure lawsuit. A motion can be made by the homeowner’s attorney to dismiss the lawsuit for the failure of the financial institution to comply with this section. In other situations it can be used to cause a court to deny a summary judgment motion on behalf of the bank because they have not fulfilled the prerequisites necessary to bring the foreclosure lawsuit.

New York foreclosure defense lawyerElliot S. Schlissel is a foreclosure lawyer representing homeowners throughout the Metropolitan New York area who are behind on their mortgages, seeking mortgage modifications, or have been served with notices concerning foreclosures. The office offers free consultations.

Defective Foreclosure Lawsuits

foreclosure lawyer New YorkHas the bank initiated a foreclosure action against you? How do you know the bank has acted appropriately with regard to fulfilling their obligations as a financial institution? The question then becomes, is the foreclosure lawsuit defective?

There are a variety of reasons that a bank’s foreclosure proceeding against you may be defective. The first issue is whether the bank has all of the proper documents to have legal standing to foreclose on your property. Another issue is how significant misrepresentations, predatory lending issues, or issues involving sub-prime mortgages affected your case.

Exposing Defects in Foreclosure Cases

How do you expose a defect in a foreclosure case? To start with, all of the documents related to the mortgage need to be reviewed. In addition, a detailed Answer to the Summons and Complaint needs to be filed with both the court and opposing counsel. Numerous affirmative defenses concerning potential defects in the case need to be alleged. Thereafter a document demand must be made seeking copies of all of the documents the bank has in its file related to this matter. In addition, interrogatories or bills of particulars can be served on the bank asking a variety of questions concerning the origination of the mortgage, the term of the mortgage and various issues pertaining to the mortgage.

Sloppy Paperwork by Banks

When the real estate industry was booming in 2006 through 2009, banks became overwhelmed with the number of applications being submitted to them. In many situations, their paperwork was sloppy, unprofessional, improperly handled, involved misstatements, false statements, and applications submitted by mortgage brokers that did not reflect the financial circumstances of the prospective mortgagor. Underwriters often lost documents concerning mortgage applications. They also misplaced documents or simply incorrectly handled the underwriting of the mortgage. It is the job of the foreclosure defense attorney to bring all of these problems to light when a bank seeks to foreclose against the homeowner. It is then presented to a judge with the hope the judge will carefully review the situation and reach the conclusion the bank has acted improperly.

Legal Rights and Options

So how do you protect your legal rights? What are your options? The only way you will find an answer to these questions is to consult with an experienced, dedicated foreclosure defense attorney. You can call our office for a free consultation. Our phones are monitored 24/7. Our office phone numbers are 516-561-6645 and 718-350-2802.New York foreclosure defense lawyer

Fighting Foreclosure Lawsuits

foreclosure lawyer for homeownersIf you are behind on your mortgage payments, do not despair. Foreclosure lawsuits can be fought in the courts in New York. If you receive a letter from your financial institution indicating your home is going into foreclosure or you are served with a Summons and Complaint, your best defense is to go on the offense.

Legal action can be taken to protect your home. The first thing which needs to be done is to have the situation properly evaluated. Should you apply for a mortgage modification? Can you qualify for a forbearance agreement? Should you litigate the foreclosure? Has the bank been involved in predatory lending, violations of Truth in Lending Laws, violation of New York State or Federal banking laws? Have they served you with the 90 day notice? Have they acted properly during the course of negotiations for mortgage modifications? There are numerous issues which need to be analyzed and dealt with as part of a foreclosure defense strategy.

Bankruptcy

Is bankruptcy the right solution for you? Should you file for bankruptcy now or wait until later stages of the foreclosure proceeding? Is a Chapter 7 bankruptcy the appropriate bankruptcy to file or should you file a Chapter 13 which involves a payment plan? Again, this depends on the circumstances involved in each case. Each family’s circumstances and needs are different.

Victim of Predatory Lending?

Predatory lending generally deals with unfair business practices or unethical business practices which lenders sometimes engage in. If the prospective mortgage holder was deceived or agreed to an unfair or abusive mortgage term, it may involve predatory lending. Due to the nature of predatory lending, most homeowners who have been subject to predatory lending end up having their homes foreclosed upon, and if appropriate action isn’t taken, lose their homes.

Predatory lending practices can be exposed as part of a foreclosure defense during the course of a foreclosure lawsuit. When served with a Summons and Complaint the homeowner can allege in his Answer the defense of predatory lending.

Conclusion

Should you find yourself behind on your mortgage, facing a foreclosure lawsuit or in the middle of a foreclosure lawsuit, the best way to protect your interests and keep your family in your home is to hire an experienced, dedicated foreclosure defense attorney.New York foreclosure defense lawyer

Rescission of a Loan

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

https://youtu.be/UU2gtDLgo2k

Elliot S. Schlissel is a foreclosure defense lawyer helping homeowners stay in their homes throughout the Metropolitan New York area.  He and his associates can be reached for consultation at 516-561-6645 or 718-350-2802 or send an email to schlissel.law@att.net.

Foreclosure Lawsuit Blocked Concerning Death Issues

foreclosure attorney in New YorkA foreclosure action was brought by JP Morgan Chase in the Supreme Court of New York County. Justice Francois Rivera was the judge assigned to the case. Chase claimed in their pleadings that Charles had executed a mortgage and note on real property in favor of Fleet Real Estate Funding. They claimed Fleet Real Estate Funding had assigned the mortgage to JP Morgan Chase. They claimed Charles defaulted on making his payments on the note and mortgage, they had accelerated the note and mortgage and served the acceleration notice on Charles.

Charles’ Death

After Chase had commenced this lawsuit they ascertained that Charles had died. It should be noted Charles did not respond to any of the documents served upon him by Chase or the Summons and Complaint. That may have been related to the fact that he wasn’t alive!

Although Chase was aware that Charles had died, the moving papers submitted by them did not contain an original death certificate. The court was never made aware as to when Charles died. Judge Rivera advised Chase that when an individual to a lawsuit dies, the court is divested of jurisdiction to continue legal proceedings until an appropriate substitution is made. In addition, any court order rendered after the date of death of a party and before a legal representative is appointed to represent the deceased party would also be void.

Judge Rivera reached the conclusion since Chase had not submitted a death certificate, and they weren’t aware of the date of death, they could not determine if Charles was ever legally a party to this lawsuit. The court further stated if Charles died after the lawsuit was initiated, the action would be stayed under New York State law. In the end, Judge Rivera found that Chase could not have any relief at all until they resolved the issues concerning Charles’ death.

Conclusion

Dying is a defense to a foreclosure lawsuit! However, there are less painful defenses which can be established by hiring a foreclosure lawyer upon the initiation of legal proceedings against you.New York foreclosure defense lawyer

Truth in Lending Violations As a Defense

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

https://youtu.be/yuiEqLNefHw

Elliot S. Schlissel is a foreclosure defense lawyer helping homeowners stay in their homes throughout the Metropolitan New York area.  He and his associates can be reached for consultation at 516-561-6645 or 718-350-2802 or send an email to schlissel.law@att.net.

The Rise of Non-Bank Mortgage Servicing Companies – Part II

foreclosure and real estate lawyer in New YorkServicing $10 Trillion Dollars of Mortgage Loans

Non-bank institutions which service mortgages have grown at an incredible rate in the past few years. The largest fifty non-bank mortgage servicing companies handled almost $10 trillion dollars in mortgage loans in 2014. Non-bank servicing organizations accounted for almost 30% of these loans last year. In 2010, they accounted for only 7% of these loans. Ocwen serviced nearly $400 billion dollars in loans in 2014, and NationStar Mortgage serviced more than $377 billion dollars in loans. This is 500% more than they serviced in 2010.

Large Employee Turnover

These non-bank institutions have large turnovers of their employees. It makes it extremely difficult for homeowners to reach the same individual at these institutions to deal with their problem. This can create a gut wrenching situation for the homeowners who are trying to straighten out administrative problems caused by the servicing agencies.

Non-bank servicing companies are much harder to work with than traditional financial institutions. They are not as well equipped or well versed in issues concerning loss mitigation.

In 2014, the Consumer Finance Protection Bureau imposed new mortgage servicing requirements on both banks and non-bank servicing mortgage companies. Under these new rules, all mortgage servicing companies are supposed to create a “single point of contact”. This single point of contact is designed to help homeowners with troubled loans.

Approximately a year ago, the New York Department of Financial Services blocked a transfer of almost $3 billion dollars in mortgage servicing contracts from Wells Fargo Bank to Ocwen. In December 2014, Ocwen reached a $150 million dollar settlement with the New York Department of Financial Services concerning abuses and conflicts of interest. Hopefully in 2015, this New York agency will be able to regulate these non-bank servicing institutions and/or motivate them to provide higher quality levels of service to the tens of thousands of beleaguered mortgage holders who are forced to deal with them.

New York foreclosure defense attorneyElliot S. Schlissel is a foreclosure attorney. He helps homeowners with homes which have gone into or are going into foreclosure. He is the author of more than 400 articles on his blog concerning foreclosure defense.

The Rise of Non-Bank Mortgage Servicing Companies – Part I

There has been an explosive rise in the number of mortgages serviced in the United States by non-bank mortgage servicing companies. Mortgage servicing companies don’t offer checking accounts or savings accounts. They are simply hired by financial institutions to process payments and perform various administrative banking tasks that are commonly referred to as “servicing”. These non-bank institutions in the year 2014 are servicing a larger and larger portion of all mortgage loans in the United States. Non-bank mortgage servicing companies operate under a different regulatory scheme than banks. They are subject to considerably less scrutiny with regard to their practices.

Alarm About Non-Bank Servicing Companies

A number of homeowner complaints concerning large non-bank servicing companies are growing at a significant rate. The largest non-bank mortgage servicing companies are Ocwen Financial Corporation and NationStar Mortgage. These two mortgage servicing companies, pursuant to the Consumer Financial Protection Bureau, accounted for 4,658 complaints from consumers in the year 2014. This was a dramatic increase in the number of consumer complaints from previous years.

Benjamin Lawsky, Superintendent of New York’s Department of Financial Services, recently stated that behind every troubled mortgage loan is “a family, a person, and it’s usually someone struggling to make ends meet”. Long Island is a great example of that. We have lots of homes under water and people who need loan modifications.

Transferring of Mortgages

The servicing of mortgages is not a simple business model. Each and every time the mortgage gets transferred from one bank to another or one servicing agency to another, there is potential for mistakes and errors which can result in putting the homeowner into financial turmoil. There have been numerous cases of individuals whose mortgages have been transferred from one servicer to another that have had their lives turned upside down by the mistakes made by these agencies.New York foreclosure defense attorney

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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We represent individuals throughout the New York Metropolitan area with divorce and child custody, personal injury, car accident, wrongful death, estate administration, nursing home and medicaid issues

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