foreclosure defense attorneys

The Foreclosure Legal Process On A Step By Step Basis – Part II

April 9, 2015 by Elliot S. Schlissel

The Homeowner’s Response To Being Served In A Foreclosure Lawsuit

It is extremely important that the homeowner respond to the foreclosure lawsuit by filing a written Answer with the court and serving it upon opposing counsel. The Answer should contain denials, affirmative defenses, and in the appropriate situations, counter lawsuits against the bank. This is the homeowner’s opportunity to advise the court with regard to the bank’s behavior, the bank’s underwriting process, issues involving robo-signers, issues involving predatory lending, issues involving fraudulent bank action, issues involving violations of the Truth in Lending Law, federal and state banking laws, consumer protection laws, and numerous other issues.

If the homeowner does not file the written Answer as indicated above, it is considered that he has defaulted with regard to the foreclosure lawsuit. This means the homeowner will not get to advise the court that he or she has any defense whatsoever concerning the foreclosure lawsuit.

Consequences of the Homeowner’s Default

As stated above, the homeowner defaulting in the foreclosure lawsuit is a HUGE MISTAKE! This allows the attorneys for the financial institution to bring a motion for an Order of Reference. An Order of Reference is a request to the judge to appoint a referee to do an accounting as to how much is owed to the lender. This would include principle, interest, late charges, attorney’s fees, foreclosure costs, and all other expenses. After the Order of Reference is obtained the financial institution can then bring a motion for an Order asking for a default judgment in the foreclosure and sale of the home.

Sale of the Home in Foreclosure

If the judge signs the Judgment of Foreclosure and Sale, the attorneys for the financial institution then publish a Notice of Sale in a newspaper of public distribution a minimum of 30 days before an auction sale date. Thereafter, the referee can schedule an auction sale of the property. Technically, if the homeowner does not file an Answer to the Summons and Complaint in the foreclosure lawsuit, the attorneys for the financial institution are not required to give notice of the sale to the homeowner. However, even though they may not be required to do so, most law firms bringing foreclosure cases on behalf of banks provide notice to the homeowner of the specifics regarding the sale date, terms and location of the sale.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: Answer, foreclosure defense attorneys, foreclosure process, New York foreclosure defense lawyers, Pleadings, summons and complaint

Motion to Foreclose Mortgage Denied

April 1, 2015 by Elliot S. Schlissel

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.

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

How Bank Lawyers View Foreclosure Cases

March 21, 2015 by Elliot S. Schlissel

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

http://youtu.be/Gerutref7Cc

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.

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

The Foreclosure Settlement Conference – Part I

March 2, 2015 by Elliot S. Schlissel

Governor Cuomo, a number of years ago, established foreclosure settlement conferences as a requirement for all foreclosure lawsuits in the State Of New York. An extremely important area in foreclosure defense involves an attorney representing the homeowner at foreclosure settlement conferences. At these conferences, there are meetings between the foreclosing institution’s attorneys, and the attorneys for the homeowner. These meetings are supervised by court appointed referees. It is the referee’s duties to see if he or she can get the parties together to work out a loan modification to allow the homeowners to continue to reside in their homes and have the foreclosure proceedings withdrawn.

Submission of Documents

Besides attending the foreclosure court conference, it is necessary for the homeowners to submit detailed mortgage modification packages through their counsel. The submission at the foreclosure court conference is different than the submissions made by homeowners outside of court supervision.

Complaints Regarding The Home Affordable Mortgage Program (HAMP)

There are numerous complaints with regard to the Home Affordable Mortgage Program (HAMP). Homeowners, rightfully so, complain the banks jerk them around, lose their documents, don’t respond to their communications and that the program simply doesn’t work.

One of the purposes of the mandatory foreclosure settlement conferences is to put pressure on the financial institutions to properly underwrite the mortgage modification applications and act in good faith. There are penalties potentially available for financial institutions who fail to act in good faith and properly underwrite mortgage modification applications submitted pursuant to the mandatory foreclosure conference parts.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: foreclosure attorney, foreclosure defense, foreclosure defense attorneys, foreclosure settlement conference

The New Relaxed Mortgage Requirements

February 16, 2015 by Elliot S. Schlissel

Fannie Mae and Freddie Mac are now underwriting mortgages which only require a 3% down payment. These new 3% down payment mortgages are only available for first time home purchasers. Is this a good idea? It is thought that home ownership is the foundation in building equity and wealth. It is anticipated these new relaxed mortgage regulations will make it easier for middle class Americans to purchase homes.

The 3% Down Payment Mortgage

The purpose of the 3% mortgages is to make it affordable for young people who don’t have significant funds for down payments, but who have reasonable income, to enjoy the benefits of home ownership. It is also thought the 3% mortgage program will have an affirmative impact on the housing market in the United States.

Mortgage Safeguards

There are a number of safeguards which have been built into this new 3% mortgage program. The current credit requirements to obtain a mortgage shall remain the same. Individuals applying for these mortgages will have to document their income. Only fixed rate mortgages will be available with 3% down payments and the program will only be available for primary residences. It will also be necessary for the prospective home purchasers to have private mortgage insurance.

Historical Perspective of 3% Mortgages

Studies have shown the default rate on 3% mortgages, when they were available in the past, was about the same as the default rate for individuals taking 5% down payment mortgages. To make sure the 3% mortgages don’t become a springboard for another housing bubble, individuals seeking to take out 3% mortgage loans will be required to take a buyer counseling program.

Conclusion

3% mortgages are designed to make the benefits of home ownership available for more middle class families. However, the 3% mortgage program may be the springboard for future default by homeowners who didn’t have the financial wherewithal to actually purchase their dream home. Hopefully this will not spur another foreclosure crisis in America.

Elliot S. Schlissel is a foreclosure lawyer who has helped hundreds of New Yorkers continue to live in their homes.

Filed Under: Current Events, Foreclosure Tagged With: foreclosure, foreclosure defense attorneys, mortgage, New York foreclosure defense lawyers

Coming Soon: 3% Mortgage Down Payments

February 8, 2015 by Elliot S. Schlissel

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.

Filed Under: Current Events, Foreclosure, Foreclosure Defense Tagged With: foreclosure, foreclosure crisis, foreclosure defense attorneys, foreclosure defense lawyers, real estate, real estate market

Zombie Homes

January 28, 2015 by Elliot S. Schlissel

mortgage modification attorney A “zombie home” is a home which is no longer under the control of the owners, but the foreclosure case is still pending and therefore the bank does not have legal title or possession of the home.

Foreclosed Abandoned Homes

There are communities which have numerous foreclosed homes within them. Sometimes the homeowners abandon these homes. This has a negative effect on the tax base. The other homes in the area have their taxes go up as a result of this action. The abandoned homes fall into disrepair causing the homes surrounding them to lose value. When people drive through an area with abandoned homes, it creates a blight on the neighborhood. Zombie homes are a problem in many neighborhoods throughout the United States. It is estimated that as many as 20% of the homes in foreclosure are vacant.

Proposed New York Program

In States such as New York, where the foreclosure process is long, the issue of zombie homes becomes a larger problem. Attorney General Schneiderman in the State of New York is currently backing an idea of letting communities create land banks for the purpose of buying, refurbishing, and reselling abandoned homes. Attorney General Schneiderman has proposed legislation which would force lenders to maintain a property which has been abandoned after the start of the foreclosure lawsuit.

Maintenance Problems of Abandoned Homes

Homes that are abandoned often have significant maintenance problems. Pipes burst. The wood rots. The lawns sprout weeds. These homes create eyesores and create a blighted effect on the neighborhood.

Syracuse Land Bank Program

Katelyn Wright, the Executive Director of the Greater Syracuse Land Bank, recently stated “studies have shown that they [abandoned homes] have a dramatic negative impact on the property values for the homes in the surrounding vicinity, but also less dramatic but still notable for homes in a several block radius.” Katelyn Wright, as Director of the Greater Syracuse Land Bank, has been involved in dealing with abandoned homes in the Syracuse area. Syracuse experiences as many as 50 new abandoned homes each month. The Land Bank buys many of these homes for a very modest price using State, City and County funding. The homes are then either rehabilitated and put back on the market or, if they are not able to be rehabilitated, they are demolished. This is an example of how one community is dealing with zombie homes.

Elliot Schlissel is a foreclosure attorney who represents homeowners whose homes have been foreclosed on. He helps keep his clients in their homes and advises his clients not to abandon their homes.

Filed Under: Current Events, Foreclosure, Foreclosure Defense Tagged With: financial crisis, foreclosure defense attorneys, foreclosure proceedings, New York foreclosure attorney, New York foreclosure defense lawyers

Appellate Court Approves Remedy for Lender’s Bad Faith

January 6, 2015 by Elliot S. Schlissel

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.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: bad faith, defective foreclosure lawsuits, foreclosure defense attorneys, foreclosure defense lawyers, mortgage modifications

Bank Has No Standing, Summary Judgment Denied

December 19, 2014 by Elliot S. Schlissel

HSBC Bank, USA, brought a foreclosure case against Thomas in Kings County Supreme Court. Thomas submitted an Answer in the foreclosure legal action with affirmative defenses. The affirmative defenses stated HSBC was not the owner of the note and the mortgage at the time the lawsuit was initiated. Therefore, they lacked standing to bring the lawsuit.

Thomas had taken out several mortgages. HSBC, in its summary judgment motion, claimed it had standing as it was assigned Thomas’s mortgage pursuant to an assignment by MERS. It also claimed it was in possession of the note at the time the action was commenced. They claimed since Thomas had not made his payments on the notes which were secured by the mortgage on the property, they had the right to initiate the lawsuit and they should be granted summary judgment. (Summary judgment grants the moving party an order for the relief requested in the complaint without the need for a trial).

Notes Not Assigned

Ms. Thomas, in her opposition to the summary judgment motion, claimed the notes were not assigned. She claimed the notes were not negotiated since there was an allonge (which is an amendment to a note) which did not comply with the Uniform Commercial Code section 3-202(2). This section of the Uniform Commercial Code requires an allonge be firmly attached to the note.

Supreme Court Justice Wayne Saitta agreed with Ms. Thomas’s argument. He found the assignment of the mortgage was insufficient as it only assigned the mortgage and did not include the notes and underlying debt. The judge found HSBC did not establish the note was negotiated prior to the commencement of this action. The negotiation of the note required physical delivery of the note. Judge Saitta ruled HSBC did not have standing to bring the lawsuit and summary judgment motion striking Thomas’s answer and affirmative defenses was denied.

Conclusion

If you are sued, it is important to have a detailed review of all of the facts and circumstances in the case with an experienced foreclosure defense lawyer. There are many defenses available in foreclosure lawsuits. There are numerous statutes, state and federal laws which protect consumers and mortgage holders.

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

Bank Sanctioned for Foreclosure Activity

November 14, 2014 by Elliot S. Schlissel

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

http://youtu.be/aWFhexR5IEo

Elliot S. Schlissel is a foreclosure lawyer representing homeowners throughout the Metropolitan New York area. He regularly sues banks to set aside mortgages and help keep his clients in their homes. He and his associates can be reached at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.

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

The Foreclosure Legal Process On A Step By Step Basis – Part II

Motion to Foreclose Mortgage Denied

How Bank Lawyers View Foreclosure Cases

The Foreclosure Settlement Conference – Part I

The New Relaxed Mortgage Requirements

Coming Soon: 3% Mortgage Down Payments

Zombie Homes

Appellate Court Approves Remedy for Lender’s Bad Faith

Bank Has No Standing, Summary Judgment Denied

Bank Sanctioned for Foreclosure Activity

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