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Elliot S. Schlissel is a foreclosure lawyer. He has helped hundreds of New Yorkers stay in their homes. He fights foreclosure lawsuits throughout the Metropolitan New York area and helps his clients obtain mortgage modifications. Elliot and his staff of attorneys can be reached 7 days a week. He and his associates can be reached by calling 516-561-6645 or 718-350-2802 or by sending an 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 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.
To watch today’s video blog, please click on the link below:
Elliot S. Schlissel is a foreclosure defense attorney. He has been representing homeowners for more than 45 years. He and his associates can be reached for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.
Is it possible to stop paying your mortgage, and live in your home for many years, and stop the bank in its tracks from forcing you to make payments to them or successfully foreclosing on your home? The answer to this question is yes! If your bank fails to sue you, in the State of New York, for a period of six years from the time they accelerated the mortgage, you have a complete legal defense to the foreclosure lawsuit. This defense is known as the statute of limitations. If you plead this defense in your Answer to the Summons and Complaint you can take action to have the bank’s foreclosure lawsuit dismissed!
Defense Available to Thousands of Homeowners
It is estimated there are thousands of homeowners who have not made mortgage payments in the past six years in the State of New York, who have this defense available to them when they are sued in foreclosure. There are a variety of reasons that have caused the banks to delay in bringing foreclosure lawsuits. The federal government has made 69 separate changes to its mortgage modification programs. This has forced lenders, on numerous occasions, to withdraw previous offers to homeowners and extend new terms. This ties the house up in a pre-foreclosure situation for long periods of time.
In addition, many banks have poor practices with regard to maintaining their records concerning mortgages on homes.
Seven Million Foreclosures In America
It is estimated there have been approximately seven million homes foreclosed upon in America since 2006. In addition, there are approximately another one million homes which will go into foreclosure at some time in the next few years.
I personally see cases where there are valid statute of limitations defenses which can be plead in the Answers for my clients. In many of the cases which our office handles the lenders themselves are to blame for a case not moving forward in a foreclosure proceeding for six years.
Owning a Home For Free
Recently, Judge Michael B. Kaplan sitting in a United States Bankruptcy Court in Trenton, New Jersey, wrote an opinion reflecting about the foreclosure crisis. This judge had previously written “no one gets a free house.” In his recent decision Judge Kaplan stated “with the proper measure of disquiet, and chagrin, this court now must retreat from this position.”
Conclusion
One of the first things every foreclosure defense lawyer must look for when a client comes to their office whose home is in foreclosure, is whether a statute of limitations defense can be plead in their Answer.
Violations of Truth In Lending Law
The Truth in Lending Law (hereinafter referred to as “TILA”) is usually violated by a lender failing to provide the appropriate disclosure to the homeowner at the time of closing. The financial institution must specifically disclose the annual percentage rate of the loan. In addition they must disclose the finance charges, the amount financed, the total payments, the payment schedule and many other items. These disclosures are supposed to be included in the document referred to as the Truth in Lending Disclosure Statement. The lender is responsible for all of the calculations contained in the Truth in Lending Disclosure Statement being accurate.
TILA and HOEPA Violations Apply To All Subsequent Banks
Who Will Receive Assignments From The Original Lender
The actual violations of TILA and the Home Ownership and Protection Law (hereinafter referred to as “HOEPA”) are caused by the original lender not complying with these statutes. Thereafter if the loan is assigned to subsequent financial institutions these lenders are held accountable for the violations of the original bank. The only way subsequent financial institutions can avoid liability under these statutes is if they can show a reasonable person exercising ordinary due diligence would not have been able to determine the violation or improper practice pursuant to TILA or HOEPA.
Rescinding the Loan
The method in which you rescind the loan is to give written notice to the lender you are exercising your right of rescission. If you are successful in your request to rescind the loan, the financial institution must return everything you paid to them except for the payments of the loan principle. In addition, you must return the portion of the loan principle that has not yet been repaid. When you rescind the loan you can eliminate being responsible for the payment of the loan under its terms but you still can’t keep the loan proceeds. The reality is when you rescind the loan you must refinance to repay the portion of the principal you received. However, rescission of a loan will always stop a foreclosure proceeding in its tracks!
It should be noted recently the United States Supreme Court rendered a decision in the matter of Jesinoski v. Countrywide Home Loans that you don’t have to sue within the three year rescission period for rescission. You only have to provide written notice to the lender to preserve all of your rights during that three year period.
Foreclosure Defense Lawyer
If you seek to hire a lawyer to represent you in a foreclosure defense, one of the things he or she should be familiar with are the regulations involving TILA and HOEPA. The lawyer should know how these laws can be asserted by you in a foreclosure proceeding as a defense and how you can obtain damages as a result of violations of these laws. An excellent publication which can provide you with more ideas concerning the fighting of foreclosure lawsuits is Foreclosures published by the National Consumer Law Center.
Eleven banks in the State of New York have agreed to establish a program to maintain and monitor homes in foreclosure which are vacant. They have taken this action because of pressure from the New York State Attorney General, Eric Schneiderman, and complaints by neighbors surrounding these properties which have been made to the financial institutions. These eleven banks and credit unions represent approximately three-quarters of all of the houses in foreclosure in the Metropolitan New York market.
Bank To Check To See If Homes Are Vacant
The banks have agreed they will check all properties within 60 days of the loans becoming delinquent. The checking will involve an external inspection. In addition, the financial institutions will check each property in foreclosure every 25 to 35 days thereafter. If they reach a decision that the foreclosed home has been abandoned by its owners, they will post a notice with their contact information on it. In addition, they will change one of the door locks. They will also board up broken windows and doors and remove nuisance features. In addition, they will take action with regard to safety issues. All of these properties will be placed on a list to be shared with municipalities throughout the State.
The Eleven Banks
The eleven banks which have agreed to this process are: Ridgewood Savings Bank, M&T Bank, Bethpage Federal Credit Union, Astoria Bank, Green Tree Servicing, PHH, Northstar, Ocwen, CitiMortgage, Bank of America, and Wells Fargo.
More and More Zombie Homes
Attorney General Eric Schneiderman who had previously submitted legislation to the State Legislature, noted that zombie foreclosures have increased more than 50% recently. He claims there are approximately 17,000 zombie homes being foreclosed on. Zombie homes place burdens on the communities in which they are located. These burdens deal with maintenance costs, property tax issues, and vandalism of these homes.
Elliot S. Schlissel is a foreclosure lawyer representing homeowners throughout the Metropolitan New York area. His motto is, “I will keep you in your home.”
Citibank brought a foreclosure proceeding in Kings County Supreme Court before Justice Francois Rivera. Judge Rivera noted the affirmation submitted by Citibank relied on documents. Judge Rivera pointed out the documents need to be annexed to the affirmation and the affiant has to establish an evidentiary basis for the court to accept these documents. Judge Rivera ruled that the mere submission of these documents by counsel for Citibank without any detailed identification or presentation or authentication was an inadequate presentation.
Judge Rivera noted the motion papers submitted by counsel for Citibank stated there were exhibits labeled A through C. Citibank’s attorneys, in their moving papers, clearly described exhibits A and B. They did not explain what exhibit C was. Due to Citibank’s attorney’s failure to describe exhibit C, Judge Rivera completely disregarded it.
Bank’s Motion Was Ambiguous
Judge Rivera found Citibank’s motion papers to be ambiguous. He also felt they were incomplete. Judge Rivera stated in his decision he was not sure whether Citibank sought to substitute Federal National Mortgage Association (FNMA) as plaintiff because it was the owner of the note and mortgage or because it was the servicer of the owner of the note and mortgage. Judge Rivera’s decision stated, although an assignment evidencing the mortgage was assigned by Citimortgage to FNMA no evidence of an admissible nature was submitted that FNMA owned the note. In addition, no evidence was submitted showing FNMA had any authority to act as servicer on the note.
Conclusion
The standard that banks and their attorneys must meet to be successful in a foreclosure lawsuit is a very high standard. Unless the bank attorney is very careful and submits appropriate motion papers, their motions to foreclose on homeowners’ properties can be denied by vigilant judges.
Elliot Schlissel is a foreclosure defense attorney who has been representing homeowners and helping them keep their homes for more than 45 years.
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.
The federal government has come up with a new plan to encourage individuals without significant funds to be able to buy homes. Under this new plan, prospective homeowners will be able to obtain mortgages with down payments as low as only 3% of the purchase price. There is a debate as to whether this is a good thing or a bad thing. These new 3% down payment mortgages are coming less than a decade after the tremendous housing collapse America recently experienced.
First Time Home Buyers
The purpose of the program is to help lure first time home buyers back into the housing market. Is a 3% down payment loan risky? If the individuals putting the 3% down and buying a home have set aside an emergency fund in the event they lose their job or become ill, it may be a good idea. However, this writer’s experience with individuals taking these type of loans is they do not have emergency funds. The 3% is usually all they have. Without an emergency fund, should the roof leak, the boiler go bad, or one of the family members lose their job, they will be unable to make the mortgage payments and the house will go into foreclosure.
A 20% Down Payment
Most conventional mortgages require a 20% down payment today. I also have problems with this level of down payment. Most young people coming into the housing market do not have the 20% down payment. A more reasonable down payment on a conventional mortgage would be 10%. Unfortunately, pursuant to a 2012 Center for Responsible Lending Study, it found even a 10% down payment would require the individuals purchasing a home with a 2010 median value of $158,000, would take 21 years for the average family to save this amount.
The American Dream
Owning a single family home is the American dream. An equilibrium must be found which will motivate and help young people to purchase homes while not putting them into a situation where they are overextended. Owning a home is one of the bed rocks young married couples have. This is the American dream and that dream must not be kept out of reach for young couples!
Elliot Schlissel is a foreclosure attorney. He represents clients who unfortunately fall behind on their mortgages and face the possibility of losing their homes in foreclosure.
