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Elliot S. Schlissel is a foreclosure defense attorney. He represents individuals and families throughout the Metropolitan New York area whose homes have gone into foreclosure. Elliot and his staff of lawyers take the appropriate legal action to keep families in their homes and avoid losing their homes in foreclosure proceedings. He can be reached for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.
Please click on the link below to watch today’s video blog:
Elliot S. Schlissel is a foreclosure lawyer who has been representing homeowners for more than 45 years. His goal is to keep homeowners in their homes. He defends homeowners in foreclosure lawsuits and helps his clients in obtaining mortgage modifications. He and his associates can be reached for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.
Please click on the link below to watch today’s video blog:
Elliot S. Schlissel is a foreclosure defense lawyer in the Metropolitan New York area. He has been helping homeowners stay in the homes for more than 45 years. Elliot and his associates help their clients obtain mortgage modifications. Elliot can be reached for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.
The percentage of homeowners utilizing attorneys to appear on their behalf at mandatory foreclosure settlement conferences has been increasing. While legal representation of homeowners in foreclosure has been increasing, the number of cases being filed by banks to foreclose on homes is decreasing.
Caseloads Decreasing
In 2013, 46,700 cases were filed in New York State. Only 44,500 cases were filed in the State of New York during the 2014 calendar year. Foreclosure lawsuits are approximately 30% of all cases filed in the Supreme Courts in the State of New York.
The judiciary in the State of New York has a commitment to continue with foreclosure settlement conferences for the purpose of resolving foreclosure lawsuits without the need for further litigation. There are several reasons given for the reduction in foreclosure filings in New York State. Real estate prices have been going up, and less homes are underwater. In addition, the requirements to obtain new mortgages have been made more reasonable.
Specialized Court Parts and Court Programs Move Foreclosure Cases Faster Through New York Courts
There are a number of specialized court parts and court programs which have been established to ease the log jam of foreclosures in the courts in New York. In Nassau County there is a special court part which was established in 2013. In this part, banks can ask for expedited rulings in cases where the homeowners defaulted on the mortgages and didn’t appear in court or the homeowners had exhausted all settlement options. Up until now, about 800 cases have been resolved in this specialized part. In addition, Nassau County, Suffolk County and Bronx County have what are called servicer parts. In these parts, officials are authorized to approve mortgage modifications on the behalf of homeowners attending settlement conferences. A similar court part is envisioned to be brought into effect in Kings County and Queens County in the near future.
New Rules Concerning Foreclosures
Effective December 1, 2014, referees in foreclosure conference parts have the ability to consider alternatives such as loss litigation options involving loan modifications, deeds in lieu of foreclosure, and short sales. It is anticipated all these new activities will speed foreclosures through the court and assist homeowners in obtaining mortgage modifications.
Your Loan Modification Was Denied!
This is not the end of the world. To start with, even if your loan modification was approved, they may not have modified your loan to the point where you can afford to make the payments. If your loan modification is denied, you must litigate the foreclosure lawsuit. After submitting an Answer with affirmative defenses and countersuing the bank, you have an opportunity to make discovery demands upon the bank. You can request documents, financial records and other information from the bank with regard to the processes, procedures and what was involved in initiating the mortgage, having the financial documents moved from one bank to another, and bank policies and procedures. This will give you more information with regard to defending your lawsuit.
Banks can be sued within their foreclosure proceedings. This is called countersuing the bank. In the foreclosure lawsuit, the bank must present testimony and documentary evidence to support their claims. It is not uncommon for litigated foreclosure lawsuits to take three to five years to get through the court system.
Does Foreclosure Mean You Are Losing Your Home?
The answer to this is no! The foreclosure lawsuit is the start of a process by a financial institution to take back the home. If proper Answers with affirmative defenses and counterclaims are filed and discovery demands are made, the banks can be put on the defensive. No one is going to show up at your house and force you out into the street. The purpose of the foreclosure proceeding is for the bank to obtain a court order to sell your home. This is not an easy process. It takes a long time to get through the legal system. Using an experienced foreclosure defense lawyer can give you the security of knowing you will not be forced out of your home in the short run. Before a bank can take your home, they must get through your foreclosure defense law firm. I can tell you this is not an easy thing to do if you are represented by the right lawyer.
Do I Need A Lawyer To Help Me Litigate The Foreclosure Case?
The answer to this question is yes. In theory you can submit an Answer and represent yourself. However the law firm representing the bank usually brings hundreds of lawsuits against consumers. They usually have an expertise in foreclosing on homes and having the homes sold at auction on the courthouse steps. If you do not hire a lawyer, you will find yourself in an extremely disadvantaged situation. You will not understand the laws, the court rules, and the procedures involved in fighting a foreclosure case. Retaining a law firm who has fought hundreds of cases and has a successful record such as our law firm puts you in the best situation to keep your home, obtain a mortgage modification, and/or get the foreclosure lawsuit dismissed.
You Can Obtain A Mortgage Modification
You will have the opportunity to modify your mortgage under the auspices of the mandatory mortgage modification conference. New York requires, in all foreclosure lawsuits, a mandatory settlement conference on residential mortgage foreclosure cases. At the foreclosure settlement conference you will have an opportunity to apply for a mortgage modification. Even if you have already been turned down, you can apply for another mortgage modification under the supervision of the referees in the mandatory foreclosure settlement conference part in the courthouse.
To Avoid Default, You Must Answer The Summons And Complaint
A foreclosure lawsuit is initiated by the bank’s lawyers serving you with a Summons and Complaint. You can be served personally. The service can be on a person of suitable age and discretion at the residence. You can also be served by the process server leaving a copy of the Summons and Complaint at the residence and mailing you a copy. When you are served with a Summons and Complaint in a foreclosure you must file a written Answer. You must serve it on opposing counsel and file it with the Court within twenty days if served personally, or thirty days if served by any other means!
Mortgage Modification
You may be negotiating a mortgage modification with the bank. This does not change the fact you must respond to the Summons and Complaint by serving on opposing counsel a written Answer and filing it with the court. Negotiating a mortgage modification does not stop the foreclosure lawsuit from moving forward. If you don’t serve an Answer upon opposing counsel and file it with the court, the bank lawyers will take a default judgment against you. This will allow them to move forward with the foreclosure action without the court ever hearing as to whether you have a defense or wish to stay in your home.
Answering the Complaint
An Answer to the Complaint is a written response to the allegations in the Complaint. In addition to responding to what the bank states in their Complaint, you can submit affirmative defenses and you can also counter sue the bank. There are numerous requirements a bank must meet for their foreclosure lawsuit to go forward. Affirmative defenses can be alleged that the bank lacks standing to sue you, the bank does not have the original note and mortgage, the bank has violated truth in lending laws, the bank has failed to provide you with pre-foreclosure notice requirements, the bank was engaged in fraudulent activities, the person signing the documents is a robo-signer, and numerous other defenses. You only have to be successful with regard to one affirmative defense to stop the bank’s foreclosure lawsuit in its tracks!
To watch today’s video blog, please click on the link below:
Elliot S. Schlissel is a foreclosure lawyer. Elliot and his associates help their clients obtain mortgage modifications, defend foreclosure lawsuits, and counter sue banks. Elliot can be reached for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.
The 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.
Foreclosure Solutions
Homeowners must understand a foreclosure lawsuit is simply a lawsuit between a bank and the homeowners. Homeowners have rights and banks have an extremely heavy burden to meet to be successful in a foreclosure lawsuit. When a homeowner is served with a Summons and Complaint, he or she must submit a written Answer to opposing counsel and file the Answer with the court. The homeowner should be asserting affirmative defenses and counterclaims against the financial institution in his or her Answer. The homeowner can use the foreclosure lawsuit to obtain leverage against the bank and put pressure on them to grant a mortgage modification.
The Answer
When served with the foreclosure Summons and Complaint, the homeowner has twenty days to respond if served personally, and thirty days to respond if served by any other means other than personal service. The homeowner can either submit an Answer or in certain circumstances, make a motion to dismiss the lawsuit right off the bat. It is important to remember that lending institutions and foreclosure legal action by them are extremely heavily regulated by State, Federal and local laws and regulations. Foreclosure defense attorneys utilize these regulations of financial institutions in developing defenses for homeowners. In addition to making a motion to dismiss, and submitting defenses, a homeowner can submit what are called affirmative defenses. These are technical legal challenges on substantive grounds with regard to issues related to the foreclosure lawsuit. Examples of affirmative defenses are: lack of standing, robo-signing, dual tracking, failure to document the loan, improper notice, improper service, fraud, loan modification issues and many other affirmative defenses.
Countersuits
Counterclaims can be brought against financial institutions seeking monetary damages. These countersuits can be based on allegations the financial institution caused injury to the homeowner. There are also statutory violations and statutory penalties which can be brought against the financial institution. Unique facts related to each homeowner’s situation can be molded into an appropriate Answer with affirmative defenses and countersuits against the bank.
Discovery
After the Summons and Complaint is served and an Answer is submitted, a lawsuit enters what is called the discovery phase. During this phase the attorneys for the homeowner can force the bank to turn over documents, bank records, underwriting records, and other information to help the homeowner with his or her defenses. If the bank’s attorneys refuse to comply with discovery demands, motions to dismiss the lawsuit can be made to the court.
Developing The Response To The Summons and Complaint In The Foreclosure Lawsuit
Some law firms who handle one or two foreclosures a year look at a research book and submit a standard response in their answer. This is a standardized document not tailored to the specific needs of the homeowner. Our law firm, which has represented hundreds of homeowners, does not use boiler plate responses. Each and every foreclosure lawsuit is analyzed and specific affirmative defenses and countersuits related to the circumstances in each and every case are submitted by our law office.
Foreclosure Settlement Conferences
New York State has mandatory foreclosure settlement conferences required to be attended by the attorney for the homeowner and counsel for the lender. At these settlement conferences both parties are expected to negotiate and act in good faith. Referees at these conferences try to motivate the financial institutions to grant the homeowner a mortgage modification. Even if the homeowner has been turned down several times before, he or she can still use the leverage of the mandatory foreclosure court conference to obtain a mortgage modification.
Motion for Summary Judgment By The Banks’ Lawyers
In almost every foreclosure lawsuit, at some point, the attorneys for the financial institution bring a motion for summary judgment. This motion basically states that there are no issues of fact involved in the case, no valid defenses and the bank should be entitled to a judgment of foreclosure without a trial or further hearing. This is where the affirmative defenses and discovery demands by the homeowner come into play. The affirmative defenses can be utilized to argue to the court what the bank has done wrong. The failure of the bank to provide necessary documents and other requested information by the lawyer for the homeowner can help to defeat the summary judgment motion.
Conclusion
Banks do not always win foreclosure lawsuits. The legal system is designed to see to it financial institutions don’t take advantage of homeowners. Our law firm’s single goal is to help homeowners fight the foreclosure, keep their home, and obtain mortgage modifications. We have been successfully representing homeowners for more than 45 years.
