foreclosure attorney

Foreclosure Truths and Falsehoods – Part I

June 22, 2014 by Elliot S. Schlissel

Foreclosure Summons and Complaint

1. If you are served with a summons and complaint in a foreclosure case, all you have to do is later show up at court at the mandatory arbitration court conference. This is not true!

If you are served with a summons and complaint in a foreclosure lawsuit, you have 30 days to submit a written answer to opposing counsel and the court, if served by any other means than by personal service. If the summons and complaint is personally put in your hand, you have 20 days to submit a written answer. If you do not answer it, you are considered to have defaulted. In the event you default, the financial institution’s lawyers, can move forward with the foreclosure case without you participating in it.

Under the law that exists in New York today, you would still be eligible to appear in court at a mandatory foreclosure mediation conference. However, you shouldn’t get your hopes up real high of it being successful and obtaining a mortgage modification. 4 out of 5 people who apply for mortgage modifications are turned down. Even those who are accepted for temporary mortgage modifications should not start celebrating. More than half of the time after the temporary modification period is over, the banks reject entering into a permanent mortgage modification.

You Will Be Thrown Out Of Your House

2. If your house is foreclosed on, you will most likely be thrown out of it in the near future. This is not true!

The foreclosure process can be a long and arduous process. If a foreclosure proceeding is brought against you, you can fight the lawsuit. There are numerous federal and state statutes which protect consumers in foreclosure lawsuits. There are issues involving robo-signers, bad assignments, failure to serve appropriate documents, and failure to effectively plead the case, which can be used as defenses against banks. Banks can also be countersued in the foreclosure proceeding for their violating state and federal laws and for the failure to act appropriately. If served with a foreclosure lawsuit do not vacate your home! You can continue to live in your home. There are remedies available to you!

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: defective foreclosure lawsuits, foreclosure attorney, foreclosure defense, mortgage modifications, New York foreclosure attorney

Long Island Home Sales Going Down But Prices Going Up

June 17, 2014 by Elliot S. Schlissel

The number of homes that were sold on Long Island during April of 2014 went down in relation to April of 2013. The number of transactions were approximately 20% lower than it was for April of 2013. One of the reasons given for the reduction of home sales was the fact that it was a long, cold winter. Prospective homeowners were kept off the market by the problems caused by the weather.

Home Prices Go Up

Even though less homes were sold in April 2014 than in 2013, the median price for home sales in Nassau and Suffolk Counties went up. The median price for homes in Nassau County in April of 2014, was up almost 6% from 2013, with a price of approximately $410,000. In Suffolk County, the median home price was approximately $301,000, with an annual gain of only 0.07%.

Mary Ann Murphy, a broker with Call Murf Real Estate in Lindenhurst, has recently stated the areas on Long Island which were subject to being devastated by Superstorm Sandy have been seeing much more sales activity. Although these properties are selling at a discount, they are starting to move.

Real Estate Brokers Expect a Busy Summer Selling Season

Brokers are anticipating the market will rebound during the summer months this year. In both Nassau and Suffolk Counties, it still takes approximately a year for the average home to be sold. In a more balanced real estate market, there would only be a six month delay for the average home to be sold.

About the Author

Elliot S. Schlissel is an attorney with more than 45 years of experience representing homeowners regarding fighting foreclosure lawsuits, obtaining mortgage modifications, and protecting homeowners’ rights. He offers free consultations to prospective clients.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: foreclosure attorney, mortgage modifications, real estate market

Strategic Default

May 22, 2014 by Elliot S. Schlissel

Mortgage Basics

Individuals who take out a mortgage or refinance a mortgage generally execute two types of documents. The first is a promissory note. A promissory note is simply an “I owe you.” It creates a financial liability to repay the amount borrowed. The second item that is executed at the time of the closing is a mortgage. The mortgage is the document that secures the debt obligation. The mortgage provides the bank with a lien on your property. If you don’t make the mortgage payments the bank forecloses and sells your property at auction.

What Banks Do When You Don’t Make Payments

The first thing a bank does if you stop making your mortgage payments is they analyze the value of your home and its liquidation ability to pay the loan off. They then hire an attorney and the attorney files a foreclosure legal action on behalf of the bank.

Deficiency Judgment

If when your home is sold in the foreclosure sale, the amount received by the bank is insufficient to pay off the promissory note, a deficiency exists. A bank can bring a second lawsuit to obtain a judgment against you and force you to pay this deficiency amount. Here is an example. Your home is worth $300,000. But you owe $400,000 on it related to your mortgage. You fall behind and the bank takes legal action against you and eventually they sell your home. At the time of sale a speculator buys your home for $200,000 ($100,000 less than it is actually worth. This often happens because at foreclosure sales, speculators bid cash on homes that they know very little about other than an appraisal from the exterior and review of what other homes in the area sold for).

The bank receives only $200,000 from the transaction when you owe them $400,000. That leaves a deficiency against you of $200,000. The bank can sue you and obtain a judgment for that $200,000. One remedy you would have would be to thereafter file bankruptcy and eliminate the balance of the deficiency.

Strategic Default and How It Works

A strategic default involves taking into consideration whether your home is under water and it may never be worth the value of the mortgage. You simply stopped making your mortgage payments. Thereafter later on you negotiate a short sale, a mortgage modification, or a deed in lieu of foreclosure.

Strategic default means you are simply walking away from your mortgage. It takes place when a borrower decides he or she is going to intentionally not pay his or her mortgage because it no longer is financially practical. This usually occurs when the house is under water (worth significantly less than the amount of the mortgage).

Strategic default should not be undertaken without sound legal advice from an experienced attorney who has handled numerous transactions of this nature. There are a variety of pitfalls that can take place concerning a strategic default. If you are considering walking away from your home and/or mortgage because you can’t afford to pay it, feel free to call our office for a consultation. This is not a matter that should be taken lightly. Although a strategic default may be appropriate in some situations, there are many situations where it is not.

Elliot S. Schlissel is a foreclosure lawyer. He has helped scores of his clients stay in their homes and fight foreclosure proceedings. Elliot sues banks and other financial institutions who have broken laws, failed to obtain appropriate assignments, and who do not have appropriate standing to bring foreclosure lawsuits. His phones are monitored seven days a week. Call for a free consultation.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: foreclosure attorney, foreclosure defense, Mortgage Modifications attorney

Uniondale Marriott Hotel on Long Island in Foreclosure

May 1, 2014 by Elliot S. Schlissel

One of Long Island’s largest hotels has had a foreclosure lawsuit initiated against it. The Long Island Marriott Hotel and Conference Center located in Uniondale, New York is in foreclosure. The hotel is owned by the New York Islanders’ owner, Charles Wang.

The financial institution that loaned the New York Islanders and Charles Wang $103,000,000 in 2007 has brought a foreclosure proceeding in the Supreme Court in Nassau County located in Mineola, New York.

It is estimated the amount owed on the mortgage loan on the Marriott Hotel is more than $125,000,000. The hotel had been valued in the year 2010 at approximately $150,000,000. In a recent appraisal, it was valued at $63.4 million.

Mr. Wang had initially purchased the hotel in 2005 from Marriott. He took this action as part of his Lighthouse plan to revitalize the area around the Nassau County Coliseum. In 2007, Scott Rechler of RXR Realty purchased the hotel. He was a partner of Wang with regard to the project. The Lighthouse Project which was proposed to revitalize the area around the hotel never came to fruition. Eventually, Wang bought the hotel back from Scott Rechler.

Wang had proposed to Nassau County they fund the renovation of the Coliseum. However, when this was submitted through a referendum, the voters in Nassau County voted it down. In 2012, the New York Islanders announced they were moving to the Barclays Center in Brooklyn and they would be permanently leaving Nassau County.

In 2013, Nassau County Executive Mangano entered into an agreement with Bruce Ratner, whom he had selected to renovate the Coliseum.

Conclusion

It is a sad state of events when the largest hotel in Nassau County is in foreclosure.

Elliot Schlissel is a foreclosure attorney. He represents individuals in foreclosure lawsuits and mortgage modification applications throughout the Metropolitan New York area. He has been helping homeowners stay in their homes and fight foreclosure lawsuits for more than 45 years.

Filed Under: Foreclosure Tagged With: foreclosure attorney, foreclosure defense lawyers, foreclosure proceedings, Mortgage Modifications attorney, New York foreclosure attorney

Bank Fails to Prove it Has Standing on Date Foreclosure Action Started

April 17, 2014 by Elliot S. Schlissel

Justice David Schmidt, sitting in the Supreme Court Foreclosure Part in Kings County recently had a case before him concerning a foreclosure on a home where the defendant submitted a lack of standing defense. The foreclosure action was brought by US Bank as the trustee for Morgan Stanley Mortgage Loan Trust (hereinafter referred to as “MSMLT”). During the course of this proceeding, the attorneys for MSMLT brought a summary judgment motion against the defendants. (A summary judgment motion is a motion that alleges there are no questions of fact concerning the issues in the case and therefore the moving party should be entitled to judgment without the necessity of having the case go to trial).

The defendants submitted seven affirmative defenses in their answer. One of those affirmative defenses alleged the bank lacked the standing to bring this foreclosure lawsuit.

Lack of Standing

MSMLT argued that the defendants defaulted on the note due to the failure to make timely mortgage payments. The defendants had not made mortgage payments for a period of two years before MSMLT had started the lawsuit to foreclose on the their home. MSMLT alleged in their pleadings they were the holder of the note and mortgage which had been endorsed in blank and delivered to them before the lawsuit was initiated.

Justice David Schmidt denied the plaintiff’s application for summary judgment. He took the position the attorneys for MSMLT had failed to offer evidence of their standing to bring the foreclosure proceeding against the defendants. They failed to prove they had the note at the time of the commencement of the action. Judge Schmidt found there were triable issues of fact regarding delivery of the note from the original lender and endorser, Hemisphere National Bank, to MSMLT. The court further stated in its decision MSMLT made conclusory statements it had “continuous possession” of the note. These conclusory statements were not sufficient to establish standing in the eyes of the judge. The judge ruled plaintiff’s allegations that equated the possession of the note with the Uniform Commercial Code’s requisite delivery requirements was not convincing and therefore he denied the motion.

Conclusion

In each and every foreclosure lawsuit, the attorneys for the homeowners should allege a lack of standing defense. Our office has had numerous cases where banks have been unable to successfully foreclose on our client’s property due to their failure to prove they had standing to initiate the foreclosure lawsuit.

Elliot S. Schlissel is one of the leading foreclosure lawyers in the Metropolitan New York area having helped scores of his clients to stay in their homes and fight foreclosure lawsuits.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: defective foreclosure lawsuits, foreclosure attorney, foreclosure defense, foreclosure defense attorneys, New York foreclosure attorney, New York foreclosure defense lawyers

Mortgage Lenders: Are There Differences Between Them?

April 14, 2014 by Elliot S. Schlissel

The first thing most prospective homeowners think about with regard to a mortgage is, what will be the interest rate? Obviously, the lower the interest rate, the less the mortgage will cost the consumer. However, there are other important issues to think about when applying for a mortgage.

What Type of Institution is Best For You to Deal With

Large national banks in some areas of the country dominate the mortgage marketplace. Examples of these types of banks are, JP Morgan Chase, Citibank, and Bank of America. Large financial institutions set their own guidelines with regard to underwriting requirements for mortgage loans. Most large financial institutions do not pay commissions to third party mortgage brokers. This brings the cost of obtaining a mortgage from a large financial institution down. These banks will, if you take a mortgage out from them, provide you with incentives such as paying you higher rates of interest on savings and checking accounts. If you deal directly with a large banking institution, you should try to develop a rapport with the individual at the bank handling your transaction. This will be helpful to you should there develop problems in the underwriting process.

Online Financial Institutions

The internet provides its own marketplace for financial institutions to advertise regarding mortgage loans. Online financial institutions are better suited to refinancing mortgage loans than initiating mortgage loans on the purchase of a home. Sometimes problems arise when dealing with online lenders because they are not located in the community and may not be familiar with the problems in the local real estate market. There is a benefit from dealing with a financial institution on a face to face basis.

Do You Need a Mortgage Broker?

Mortgage brokers are not technically working for a financial institution. They are middlemen who usually work on a commission basis. They may have contacts with a number of lending institutions. They can be helpful to you with regard to properly filling out the necessary forms required in a mortgage application. They also may be in a position to shop around for the best deal you qualify for. In special situations where you have a problem related to your property or your property is of a unique nature they may be able to find a financial institution to specifically fit your needs. They can also run interference for you with the financial institution and eliminate some of the busy work you may need to do with a direct lender. You should take into consideration however, since they are a middleman, and they will be working for commission, they may bring up the cost of the acquisition of your mortgage.

Conclusion

The purchase of a single family home is usually the largest transaction an individual or family will be involved in. Care should be taken when applying for a mortgage to see that the type of institution and deal you are offered is the most appropriate one for your particular circumstances.

Elliot S. Schlissel is a foreclosure defense lawyer. Elliot has published several hundred articles with regard to foreclosures, mortgage modifications, and other real estate issues. Elliot and his staff of attorneys represent homeowners having financial difficulties and who face foreclosure lawsuits in the Metropolitan New York area. Elliot and his attorneys have developed an expertise in dealing with financial institutions, helping their clients obtain mortgage modifications, and stopping financial institutions from successfully foreclosing on their homes when they fall behind on their mortgage payments. He offers free consultations to prospective clients.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: foreclosure, foreclosure attorney, mortgage modification, New York foreclosure attorney, real estate

Knowledge Of False Information In Financial Documents Used In a Mortgage Transaction Bars Recovery

April 4, 2014 by Elliot S. Schlissel

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.

Filed Under: Foreclosure Defense Tagged With: Bankruptcy mortgage modification, defective foreclosure lawsuits, defective mortgages, financial crisis, foreclosure attorney, foreclosure crisis, New York foreclosure attorney

New Mortgage Rules’ Negative Impact on the Housing Industry

April 3, 2014 by Elliot S. Schlissel

foreclosure defense attorney There are new rules which affect financial institutions involved in the mortgage business in the United States. Lenders have to be able to verify the individuals they loan money to can repay their home mortgages. This is pursuant to the new rules designed by the Consumer Financial Protection Bureau under the Dodd- Frank Law that regulates Wall Street.

New Consumer Protection Laws

Under the new consumer protection laws, banks have to take into consideration a variety of factors when making mortgage loans. Included in these factors are the income of the borrower, the financial health of the borrower, the borrower’s credit history, and his or her other debts. The purpose of the reform law is to prevent the meltdown in the home mortgage industry that took place between 2000 and 2009 which caused millions of Americans to have their homes sold in foreclosure sales. The new statutes seek to prevent lenders from engaging in loaning funds for home mortgages to individuals who simply cannot afford to pay back the loans.

Other Aspects of The New Consumer Protection Laws

The law deals with a homeowner’s ability to pay their mortgage has created a lot of concern for financial institutions. Mortgage lenders are concerned if the homeowners fail to make their mortgage payments and their homes are foreclosed on by banks they will claim in the foreclosure actions the financial institutions had known or should have known that they couldn’t afford to make the mortgage payments under these loans.

New Regulations Affect Low Income Prospective Homeowners

Experts in the mortgage industry are claiming the new regulations will make it very difficult for low income prospective homeowners to qualify for mortgage loans. They claim the new regulations will give the banks less flexibility in working with low income mortgagors. The regulations also regulate mortgage servicing companies.

Elliot S. Schlissel is a foreclosure lawyer representing homeowners facing foreclosure lawsuits throughout the Metropolitan New York area.

Filed Under: Foreclosure Defense Tagged With: defective mortgages, foreclosure attorney, foreclosure crisis, New York foreclosure attorney, New York foreclosure defense lawyers

Foreclosure Proceeding Dismissed: Bank Had No Standing

March 28, 2014 by Elliot S. Schlissel

A foreclosure lawsuit was brought by Deutsche Bank in Kings County, New York, Supreme Court. The Judge in the Part was Larry Martin. During the course of the proceeding, Deutsche Bank brought a motion for summary judgment and the defendant, Johnson, cross moved for summary judgment and dismissal of the complaint. Summary judgment motions basically state there are no issues of fact that need to be litigated. With regard to a summary judgment motion, a party has to establish that there are no facts in controversy concerning the position that party takes. Here, each side was seeking a win based on the idea the other party was completely wrong. Deutsche Bank argued, in their application to the court, Johnson had not made payments under the note. Johnson, in his motion, challenged the debt. He also claimed that Deutsche Bank was not the owner of the note. Johnson had requested the original note, the mortgage and a mortgage modification that she had allegedly entered into, be produced. Johnson claimed that Deutsche Bank had failed to properly assign these mortgages.

No Evidence of a Written Assignment of the Mortgage

Judge Larry Martin, in his decision, held evidence was not produced of a written assignment of the note from Deutsche Bank to OCWEN. Judge Martin held Deutsche Bank had to prove the note was physically delivered to it before November 3, 2011, the day the action was commenced. The attorneys for Deutsche Bank said that they had the original note and mortgage. However, the law firm did not provide documentation as to the time they came into possession of the note and mortgage.

Judge Martin, in his decision, held the only evidence Deutsche Bank submitted with regard to their standing to bring this lawsuit was inconclusive. The fact that they had failed to submit a written assignment of the note or documentation to establish the physical delivery of the note caused their claim to fail. Johnson’s motion to dismiss the lawsuit was granted.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: foreclosure attorney, foreclosure defense attorneys, mortgage assignment, mortgage modification, New York foreclosure attorney

No Right to A Mortgage Modification

March 24, 2014 by Elliot S. Schlissel

foreclosure defense attorney A foreclosure proceeding was brought in Suffolk County before Supreme Court Justice Jerry Garguilo. Rivera had executed the mortgage and the personal obligation and he had failed to make his mortgage payments in a timely manner. Rivera had applied to Aurora Loan Services for a mortgage modification. They had taken the position he did not qualify for a mortgage modification.

It Is Alleged The Mortgage Company Acted in Bad Faith

Rivera brought a proceeding before Judge Garguilo claiming that Aurora Loan Services had acted in bad faith because they failed to offer him a mortgage modification or any other agreement to allow him to keep his house from being foreclosed on. It was presented to the court that Rivera was in bad health and could not appear in court. Rivera had a son-in-law by the name of Saburro. He was a loan officer. He came to court and testified Rivera was in bad health and that is why he did not appear in court. Saburro also testified Aurora Loan Services had repeatedly offered Rivera trial mortgage modifications. And at the end of each mortgage modification they would pull the rug out from under Rivera and advise him the mortgage modification was not going to be made permanent.

Judge Holds No Bad Faith

Justice Garguilo found that there were no trial mortgage modifications made. Judge Garguilo took the position the foreclosing bank has no obligation to modify a mortgage. Aurora’s failure to offer Rivera a mortgage modification was not unconscionable and it did not amount to bad faith. Aurora simply had no legal obligation to give Rivera a mortgage modification. It was a totally discretionary decision on their part. Judge Garguilo went on to state in his decision “it was clear the case was not one where a lender wrongfully accepted large sums of money and then refused home retention relief.” The court therefore ruled Aurora Loan Services did not act in bad faith because they did not provide Rivera with a mortgage modification.

Elliot S. Schlissel is a foreclosure defense lawyer representing homeowners throughout the Metropolitan New York area whose homes have been foreclosed on by financial institutions.

Filed Under: Foreclosure Defense, Mortgage Modification Tagged With: defective foreclosure lawsuits, foreclosure attorney, mortgage modification attorneys, New York foreclosure attorney

Foreclosure Truths and Falsehoods – Part I

Long Island Home Sales Going Down But Prices Going Up

Strategic Default

Uniondale Marriott Hotel on Long Island in Foreclosure

Bank Fails to Prove it Has Standing on Date Foreclosure Action Started

Mortgage Lenders: Are There Differences Between Them?

Knowledge Of False Information In Financial Documents Used In a Mortgage Transaction Bars Recovery

New Mortgage Rules’ Negative Impact on the Housing Industry

Foreclosure Proceeding Dismissed: Bank Had No Standing

No Right to A Mortgage Modification

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