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Elliot S. Schlissel is a foreclosure lawyer. He has been representing clients in foreclosure lawsuits and mortgage modifications for more than 45 years. He can be reached at 516-561-6645, 718-350-2802, 1-800-344-6431 or by email schlissel.law@att.net.
Economic Injury in Foreclosure Lawsuits
I have personally spoken to hundreds of homeowners with regard to issues and injustices they have been subject to related to mortgages, mortgage modifications, and foreclosure lawsuits against their homes. However, there is a concept most homeowners do not seem to understand. There is a principle of law which states when you bring a lawsuit you must allege monetary damages. To prove monetary damages you must show there has been an economic injury to you and a certain amount of money is required to redress your grievance for this economic injury (damages). Unfortunately in most foreclosure cases it is extremely difficult for the homeowner to allege economic damages in a countersuit against a financial institution.
Destroying Title To One’s Home
In the counter lawsuits brought by our law firm, we allege there has been economic injury to the homeowner because the financial institution, upon initiating a foreclosure proceeding, filed what is called a lis pendens. A lis pendens is a notice to the world a foreclosure lawsuit has been initiated. The filing of a lis pendens has a negative impact on the title to one’s home. It provides notice to all people interested in any transaction concerning the home that it is involved in a foreclosure lawsuit. Destroying the title to one’s home can be the basis for countersuing the bank for monetary damages.
Fraud
In cases where the bank has engaged in fraudulent activities, has violated truth in lending laws and/or has been involved in predatory lending, there is potential for economic injury the homeowner can recover. Unfortunately the cases do not currently allow a homeowner to set aside a mortgage based on any of those aforementioned theories of recovery. The courts have not granted homeowner’s applications in the past to set aside mortgages and remove the liens from the homeowner’s homes. This is still an avenue which is being pursued by our law office and other law firms defending beleaguered homeowners in foreclosure defense lawsuits brought by financial institutions.
Please click on the link below to watch today’s video blog:
Elliot Schlissel is a foreclosure defense attorney. He can be reached at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.
To watch today’s video blog, please click on the link below:
Elliot S. Schlissel is a foreclosure defense lawyer. He can be reached at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.
The Notarization of the Assignment Document
The assignment document needs to be notarized. The first thing you should check is if the date of the notarization is the same date as the date the person with the power of attorney, or the alleged officer of the financial institution executed the assignment. The second item you should look for is whether the notarization is from a notary in the same state as the individual who executed the assignment on the date of its execution. The notarization should have taken place on the same day and at the same location as the signature of the person making the assignment for the financial institution.
Is The Bank Still in Business?
During the past ten years, numerous mortgage companies, financial institutions and banks have gone bankrupt, have been dissolved, have merged and/or have been acquired by other financial institutions. If the bank or financial institution no longer exists, how could an employee of an institution that no longer exists execute an assignment? In these cases there is usually some sort of fraud which took place.
If the financial institution indicates there was a document attached to the note or affixed to the note, check to see if there are staple marks. If no staple marks exist on the document it is either not the original document or there was nothing actually attached to the document. If the financial institution is claiming the note is lost, check to see there has been an affidavit submitted explaining in detail the circumstances and events related to the loss of the original note. Be careful to make sure the person signing the affidavit actually was in a position to have personal knowledge about the loss of the note.
Elliot Schlissel is foreclosure defense lawyer. He has helped scores of New Yorkers fight foreclosure lawsuits and stay in their homes.
Your home is most likely your most significant single asset. It is a place where you and your family reside. It is the place where you can escape the rest of the world. Your own little castle. If you fall behind on your mortgage, you may face the situation where a bank will bring a foreclosure legal action to take your home back. This will create enormous stress and aggravation upon you and your family.
The legal system and especially the issues, tactics, and procedures involved in a foreclosure lawsuit are not generally known to the public at large. There are specific time restraints. There are obligations of the bank to file legal documents, court appearances that must be made, and applications that can be submitted to the court, and legal defenses that can be asserted.
What Can You Do To Save Your Home?
The most logical answer is to hire a foreclosure attorney with extensive experience in litigating with financial institutions for the purpose of saving family’s homes, obtaining mortgage modifications, and investigating improper bank practices such as bad assignments, and predatory lending.
Receiving Foreclosure Notice From The Bank
A financial institution or bank is supposed to provide you with 90 days notice that your home is going into foreclosure. After this 90 day period, they can serve you with a Summons and Complaint. When served with a Summons and Complaint in a foreclosure proceeding, you have 20 days to file an Answer with opposing counsel and the court, if served personally, and 30 days if served by any other means. This is an important statute of limitations which can have a major effect on the foreclosure lawsuit.
You must submit an Answer to the Summons and Complaint in the proper legal form or else you default in responding to the lawsuit. This can cause serious consequences for you and your family. Failure to submit the appropriate Answer with affirmative defenses and counterclaims within the statute of limitations time period for responding to a Summons and Complaint, eliminates your ability to legally defend the foreclosure lawsuit. It is therefore extremely important when served with a Summons and Complaint in a foreclosure that you contact a foreclosure defense lawyer to discuss your options. The early involvement of a foreclosure defense lawyer can save you from losing your home.
Improper Bank Practices
The writer of this article has dealt with scores of cases in which banks have been involved in all types of improper bank practices. Robo-signers executing inappropriate documents are one example. Bad assignments from one financial institution to another is a second example. Violations of Federal, State, and New York City banking laws with regard to the handling of the foreclosure or the underwriting of the loan are additional examples of potential defenses in a foreclosure lawsuit. Some of these defenses, if properly submitted, can stop the lawsuit in its tracks, and in some occasions, even get the case completely dismissed.
Faced With Foreclosure? Call Us!
The attorneys at the Law Offices of Schlissel DeCorpo deal with foreclosure lawsuits and foreclosure issues virtually every day. Our firm litigates cases throughout the Metropolitan New York area, on Long Island, the five boroughs, the City of New York and Westchester. We have an unparalleled history of success in keeping our clients in their homes. Even in situations where the bank or financial institution is right and our clients are completely wrong, the average case handled by our office takes between 3 and 5 years to get through the courts.
Call us for a free consultation. Our phones are monitored 24/7 and we offer free consultations to prospective clients. Our phone numbers are 1-800-344-6431, 516-561-6645, and 718-350-2802.
In the 1960’s, the United States Army Corp of Engineers laid out plans to develop a shield for Fire Island, which is located on Suffolk County’s south shore. Under this plan, several thousand homes in flood zones would have been torn down and natural buffers, including wetlands, would have been restored. Unfortunately this never took place.
Superstorm Sandy
After Superstorm Sandy there were scores of homes damaged on Fire Island. Fire Island is a barrier island which lies a few miles from the South Shore of Suffolk County. There are 15 separate communities on Fire Island. After Superstorm Sandy damaged numerous homes, it was proposed that 40 or 50 homes on Fire Island be torn down and dunes be established at those locations to protect the rest of the island. Surveys have been conducted by the Suffolk County Department of Public Works with regard to the amount of land necessary to establish these dunes to protect the island.
It was originally estimated it would cost $46 million to tear down 41 homes and create 15 foot high dunes to protect Fire Island. This estimate has turned out to be too low. It is now estimated it will cost between $60 million and $80 million to tear down the homes, obtain easements and to rebuild the dunes necessary to protect the island.
The Program is Moving Slowly
Homeowners on Fire Island are concerned because the program is now a year behind schedule. There are 41 homes which have been condemned by Suffolk County on Fire Island. These homes cannot be sold. Homeowners who were offered buyouts under this program, who feel they were not offered adequate compensation for their condemned homes, can bring legal action to try to obtain a higher price for their home.
Elliot S. Schlissel is a foreclosure attorney. He represents homeowners on Long Island and in the City of New York whose homes are in foreclosure. He litigates issues involving improper bank practices, bad assignments, predatory lending, and all types of issues affecting homeowners facing foreclosure lawsuits. In addition, Elliot helps his clients obtain mortgage modifications.
Fighting The Foreclosure Lawsuit
3. Can I fight a foreclosure case on my own or do I need a lawyer?
You technically do not need to hire a lawyer to fight a foreclosure case. In theory you can represent yourself. But let’s look at the facts.
The financial institutions bringing the foreclosure proceedings are multi-billion dollar institutions. Banks such as Chase Manhattan are worth as much as a trillion dollars. The lawyers the banks hire to bring the foreclosure lawsuits specialize in foreclosure litigation. Many of these law firms have been operational for more than 25 years and are experts in handling foreclosure litigation. Unless you are very knowledgeable and experienced in the law regarding foreclosures, it would be a terrible mistake to try to defend yourself in a foreclosure proceeding. Experienced foreclosure lawyers have expertise in litigating foreclosure cases. Our law firm has been representing clients in foreclosure cases for more than 20 years. We have scores of cases pending, and many of our clients have been in their homes more than 6 years since the foreclosure proceedings were initiated against them.
Trying to represent yourself at a foreclosure proceeding, although legally appropriate, is almost always a mistake. You need to retain the right lawyer. You should look for a law firm that has extensive experience in representing clients in foreclosure lawsuits.
Loan Modifications
4. Are loan modifications the answer to foreclosure problems?
Loan modifications are the answer for many families’ foreclosure problems. However, they do not work if you have lost your job, are disabled, or have very little cash flow. Banks are not social service organizations. They are in business to make money. They make the mortgage loans to homeowners with the hope of making a profit on these loans.
There are various mortgage modification programs. However, the success rate consumers have in obtaining mortgage modifications runs approximately 20%. Sometimes the best way to motivate a bank to provide you with a mortgage modification is to aggressively litigate the foreclosure case and let them know you are not going to take this matter lying down. Foreclosure defense lawyers utilize the mandatory foreclosure conference parts to press the financial institutions into providing the clients with reasonable mortgage modifications. The failure of a financial institution to negotiate in good faith can be used as a defense in the foreclosure lawsuit.
Walking Away From Your House
5. Your loan modification was denied, should you turn over your home to the bank?
False!
Approximately 80% of the people who apply for loan modifications don’t receive permanent loan modifications. This does not mean you are going to be forced out of your home in the near future. Sophisticated foreclosure defense law firms file answers with numerous affirmative defenses and a variety of countersuits against the financial institutions. They can also demand documents, records and other material from the banks which may be embarrassing or may show the banks have violated federal and state laws. This can put further pressure on financial institutions to grant the client’s mortgage modifications.
Facing Foreclosure: What Do You Do?
6. What should I really do if I am behind on my mortgage and facing foreclosure?
Simply stated, call us. The Law Offices of Schlissel DeCorpo have been helping New Yorkers fight foreclosures and stay in their homes for more than two decades. We have an unparalleled record of success. Our law firm is known to the bank attorneys, the court personnel, and the judges. Call us at 1-800-344-6431, 516-561-6645, or 718-350-2802 for a free consultation. We will keep you in your home!
Valley National Bank brought a foreclosure lawsuit with regard to a synagogue in Brooklyn. In 2008, the synagogue borrowed $500,000 from State Bank of Long Island. This bank thereafter merged with Valley National Bank. The congregation of the synagogue alleged that the synagogue had two functions. It was a place of prayer and it was the principal residence of the rabbi and his family. They claim “this dual property function had existed since 1970 when the present rabbi’s grandfather established a congregation at its present location.
In such Hasidic Sects, the Shtiebel is the rabbi’s home and his presence is the essence of the Shtiebel.” The congregation alleged in their papers when the mortgage was taken out, the bank was made aware Rabbi Teitelbaum’s residence was located on the site of the synagogue.
A Residential Foreclosure?
The congregation argued that the foreclosure was therefore a residential foreclosure. It should therefore have been in a residential foreclosure part and not in a commercial foreclosure courtroom. As a residential foreclosure, Rabbi Teitelbaum was entitled to notice pursuant to New York Real Property Actions and Proceedings Laws concerning the residential foreclosure.
Bank Argues Rabbi Teitelbaum Has No Standing
The foreclosing bank’s position was that Rabbi Teitelbaum was not a necessary party to the foreclosure lawsuit. They claimed it was a commercial loan and he was not a signatory on the loan. The bank’s attorneys stated in their papers, “instead of presenting a modified defense to [Valley National Bank’s] claims, borrower obfuscates by mischaracterizing the facts in attempts to divert attention from its acknowledged commercial loan default by repeatedly alleging that the rabbi and his family actually reside in the synagogue that is the mortgaged commercial premises.”
Judge Holds Property is Not Residential
The judge on the case rendered a decision that the property at issue was a religious structure and not residential property. The judge went further on to hold Rabbi Teitelbaum was not an indispensable party to the lawsuit. Judge Carolyn Demarest rejected the argument submitted by Teitelbaum. She held that even though he lived on the premises, he was not a signatory to the loans, promissory note, or the mortgage. He therefore was not an indispensable party to the lawsuit.
When Judge Demarest was presented with a similar case where the Appellate Division, Second Department made a different ruling, she stated, “in this action, defendant does not establish that Teitelbaum has a lease to the property and even it Teitelbaum does have a lease he may not be dispossessed by a purchaser at a foreclosure sale absent further proceedings.” With this, she was referring to the fact in the event the bank took title to the property they would still have to bring an eviction proceeding to get Rabbi Teitelbaum, his wife and eight children, off the property.
Conclusion
This is a very close call made by Judge Demarest. I would suggest Rabbi Teitelbaum appeal this decision to the Appellate Division of the Second Department. He may be able to persuade them that he should be named as a party because he was a tenant, even without a lease. Month to month tenants are still tenants and they should be named in all foreclosure lawsuits as interested parties.
Elliot Schlissel is a foreclosure attorney representing individuals and families in residential or commercial foreclosure lawsuits throughout the Metropolitan New York area. Elliot and his staff of dedicated lawyers have an excellent success rate in keeping families in their homes and stopping foreclosure lawsuits in their tracks.
Judge Joseph Bianco, sitting in the United States District Court for the Eastern District of New York, recently had a case involving various improprieties concerning the acquisition of a mortgage. Plaintiffs, in this case, had obtained a mortgage on their home from Countrywide Mortgage Company (hereinafter referred to as “Countrywide”) in the year 2004.
After experiencing financial difficulties involving large credit card debt and anticipating a potential bankruptcy and/or foreclosure proceeding, they obtained a second mortgage on their home in the year 2008. Both the first mortgage and the second mortgage were combined in a “Consolidation, Extension and Modification Agreement (CEMA)”. The plaintiffs presented arguments that the 2008 transaction was fraudulent. They claimed Countrywide placed false financial information into their mortgage application in 2008. They also claim Countrywide concealed the 2004 mortgage was “split” from its underlying note as a result of the assigning of the mortgage to the Mortgage Electronic Registration Systems.
Judge Bianco after considering the arguments rendered a split decision. He rendered a decision dismissing the plaintiffs’ allegations of fraud because they had actual knowledge false financial information was contained in the 2008 mortgage loan documents. In spite of the fact they knew the information was false, they executed these documents. He went on further to say although the plaintiffs allege the 2004 mortgage note was invalid, their “splitting” theory was not in compliance with New York State’s “principal-incident rule”. A mortgage is unenforceable if it is detached from its note. However, the note is enforceable even if it is not maintained with the mortgage.
Quiet Title Claim Allowed to Continue
Although Judge Bianco dismissed the plaintiffs’ claims of fraud to set aside the 2004 and 2008 transactions, he did allow the lawsuit to continue under the theory the plaintiffs’ may be entitled to quiet title on this matter. Quiet title means having the mortgage rendered invalid against the property and the removal of the lien from the property.
Elliot Schlissel is a foreclosure attorney representing families who seek to fight foreclosure lawsuits throughout the Metropolitan New York area.
