foreclosure defense attorneys

New Law Helps Homeowners: Part II

October 4, 2013 by Elliot S. Schlissel

Standing to Sue

There is a key concept in New York law concerning standing to sue. If Bank 1 gives a loan to a homeowner and Bank 1 transfers or surrenders the mortgage to Bank 2, the homeowner is entitled to notice of the transfer. In addition, appropriate documents called an Assignment of Mortgage must be filed with the County Clerk’s office in the County in which the real estate is maintained. This applies to each and every subsequent transfer of the mortgage from one financial institution to another.

The failure to properly file all necessary documents or notify the homeowner disallows the financial institution at the end of the line from having standing to bring the lawsuit. In these cases, if the homeowner hires a foreclosure defense lawyer knowledgeable about these details, an affirmative defense of lack of standing can be placed in the answer to plaintiff’s complaint. This defense can be the basis for the dismissal of the lawsuit. My law firm has had numerous lawsuits dismissed because of lack of standing issues in the many foreclosure cases we have handled.

One of the additional purposes of this legislation is to clarify issues concerning who is entitled to sue a homeowner and how cases should proceed in a more orderly and logical manner, starting with the Foreclosure Court Conferences and thereafter with litigation.

Certificate of Merit

One of the purposes of this new statute is to eliminate the filing of misleading or fraudulent documents in foreclosure proceedings that has commonly been referred to as “robo-signing.” Chief Justice Jonathan Lipman of the New York State Court of Appeals, stated “the bill is crucial to ensuring the integrity and transparency of the foreclosure process especially for those New Yorkers impacted by the recent economic crisis.”

Certificate of Merit must be filed at the same time the foreclosure proceeding is initially commenced. The Certificate of Merit requires the attorney to attach to the Certificate any relevant documents concerning modifications, extensions, consolidations and assignments affecting the instrument and/or this indebtedness.

Missing Documents

In cases where the documents are missing or lost the statute allows the attorney or the representative of the plaintiff’s financial institution to file an appropriate affidavit which attests to all of the facts and veracity of those documents which are missing.

The Certificate of Merit specifically pertains to foreclosure lawsuits brought against owner occupied residences. This replaces the affidavits attorneys had been required to file under court administrative rules since 2010.

Legal Limbo

In the past, lenders have brought foreclosure lawsuits without the proper documentation that they were entitled to bring these lawsuits. This caused cases to be maintained on the court’s dockets for long periods of time tying up the legal system involved with foreclosures.

Christine Keef, a senior staff attorney with the Empire Justice Center, stated with reference to the new law “this is going to prevent homeowners from being stuck in this legal limbo in a time period when fees and costs continue to accrue on a loan, making it harder for the homeowner to afford a modification when one is offered.”

Elliot S. Schlissel is a foreclosure defense lawyer representing homeowners throughout the metropolitan New York area.

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

New Law Helps Homeowners: Part I

October 2, 2013 by Elliot S. Schlissel

The New York State legislature has passed a new statute which has an effective date of August 30, 2013. The statute impacts in the manner and procedures utilized by financial institutions and their attorneys commencing foreclosure proceedings within the State of New York.

Certificate of Merit

All foreclosure actions commenced after August 30, 2013, will require a Certificate of Merit. This document must be attached to the Summons and Complaint. The Certificate of Merit requires the attorney for the plaintiff to certify he or she has reviewed all of the facts in the case. In addition, the attorney will have to certify based on consultation with representatives of the plaintiff, (financial institution) who is identified in the certificate, that the attorney has taken the time to review pertinent facts and documents related to this proceeding. The attorney will have to review the mortgage, the security agreement, the note or the bond underlying the mortgage. Only after this review, if there is a reasonable basis for the starting of a foreclosure lawsuit, can the attorney at that point bring a proceeding to foreclose.

Note and Mortgage

This new statute will require the attorney for the plaintiff to attach a copy of the note and the mortgage to the Summons and Complaint. In addition, the attorney will have to attach all documents evidencing transfers leading from the original financial institution to the current plaintiff showing all documents have been appropriately filed and the party bringing this lawsuit has standing to sue the homeowner.

In the event the attorney and/or the financial institution does not completely comply with these new requirements the judge handling the case will have full authority to dismiss the foreclosure proceeding. In addition, the judge will have authority to deny all accrued interest and other financial expenses that increase the amount of the indebtedness owed by the debtor during the entire long foreclosure process.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: Certificate of Merit, foreclosure, foreclosure attorney, foreclosure defense, foreclosure defense attorneys, foreclosure proceedings, New York foreclosure attorney, Standing to sue

Mortgage Servicing Agencies’ Failure to Perform Their Duties

September 26, 2013 by Elliot S. Schlissel

The Consumer Financial Protection Bureau is the new agency that is supposed to regulate mortgage servicing companies. In a recent review of mortgage servicing companies this agency found some services to be “sloppy” when dealing with transferring paperwork when loans are sold. They also found misapplication of payments on mortgages and the failure of mortgage servicing companies to pay the taxes on the homeowners’ homes on a timely basis.

Homeowners Don’t Know Whom They Are Supposed To Pay

When the average homeowner purchases his or her home they take out a mortgage. Often shortly after they take out their mortgage the mortgage is sold by one lender to another. The second lender thereupon hires a mortgage servicing company to service the loan. Sometimes, a few months later, the second lender sells the mortgage to a third lender. This leaves the homeowner unsure of where, and to whom, they should pay their mortgage. This causes consumers consternation as to whether they are making their payments to the correct entity and if they are receiving the full credit for their payments.

Consumers Financially Injured By Mortgage Servicing Companies

Tax payments on real estate are usually due and owing in December. There have been mortgage servicing companies that have delayed making these payments until January. When a mortgage servicing company pays the taxes in the following year, the homeowner loses the important tax deduction for the mortgage payment in the prior year. This causes the homeowner to pay higher income taxes due to the loss of this tax deduction.

The Consumer Financial Protection Bureau has set up a new mandated set of rules financial servicing companies must comply with. These rules go in effect in January of 2014. The purpose of these rules is to deal with issues that have come up during the mortgage loan modification process which have been exposed under the HAMP program. The following are a list of some of the problems that have been uncovered by this agency concerning mortgage services:

Abnormally long application processes.
The lack of quality control standards and the supervising of underwriters.
The failure to send out denial notices to homeowners.
The failure to have written policies and procedures related to mortgages.
Disorganization and understaffing by mortgage servicing companies.

Mortgage Modifications

Many homeowners have been living with the panacea that they can obtain a mortgage modification for their home under the HAMP program only to find out that only a small number of the applicants get final approval of mortgage modifications. Hopefully this agency will deal with the numerous problems that exist today.

Elliot S. Schlissel, Esq. is a foreclosure attorney who has published more than fifty (50) articles related to foreclosure defense.

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

Foreclosure Lawsuit Dismissed

September 16, 2013 by Elliot S. Schlissel

In a recent case, Justice François Rivera sitting in the Supreme Court Foreclosure Part in Bronx County dismissed a foreclosure lawsuit brought by HSBC Bank as Trustee. In this case, HSBC claimed the homeowner had two mortgages on the property. Both mortgages were combined by a consolidation agreement. HSBC claimed the homeowner’s defaulted by not paying the mortgages. HSBC stated the mortgages were assigned by an Affidavit of Lost Assignment.

HSBC Seeks The Appointment Of A Referee To Sell The Property

HSBC brought an application to the Court. They sought to change the caption of the proceeding from the then current defendant, Brunson, and replacing her name with the co-administrators of her estate. It turns out that Brunson died two years before the action was commenced by HSBC. Simply speaking, HSBC sued the homeowner two years after the homeowner died. Judge Rivera took the position the entire lawsuit was a nullity from its very start. The application by HSBC to modify the caption could not be granted. The court’s decision was that the court didn’t have jurisdiction to even entertain the motion made by HSBC.

Conclusion

Banks shouldn’t sue dead people. Banks can only sue the Estate or the Administrators or Executors of an estate after someone dies.

About The Author

Elliot S. Schlissel, Esq. and his associates diligently and aggressively represent homeowners in mortgage foreclosure lawsuits. Elliot and his associates provide foreclosure legal defense in the courts throughout the metropolitan New York area.

Foreclosure Dismissed: No 90 Day Notice

September 9, 2013 by Elliot S. Schlissel

Justice Yvonne Lewis, sitting in the Supreme Court of Kings County, recently dismissed a foreclosure proceeding brought by LaSalle Bank. LaSalle Bank brought a proceeding to foreclosure on a mortgage against Deanne Legier and Joyce Legier. The bank claimed both of the defendants had been served with legal process (a summons and complaint) at the real property’s address in Brooklyn. Deanne claimed she had never been served with the Summons and Complaint. She alleged that she did not reside at the address where the Summons and Complaint was served. Although Joyce was served, Joyce did not give Deanne a copy of the Summons and Complaint.

The Court, in its decision, found New York Real Property Actions and Proceedings Law section 1304 contained a requirement that a lender must comply with prior to bringing a foreclosure proceeding. This section of law required a lender to give a borrower 90 days’ notice before bringing a foreclosure proceeding on what was called a non-traditional mortgage.

Judge Lewis found that LaSalle Bank failed to show it provided the defendant’s with a Notice of Default before demanding payment in full on the underlying mortgage loan. Judge Lewis’ decision stated LaSalle Bank did not “unequivocally show compliance with section 1304 of the New York Real Property Actions and Proceedings Law.” They merely stated in their paperwork Joyce Legier failed to raise a triable issue of fact in a Summary Judgment Motion. The Judge, in her decision, stated LaSalle Bank had to comply with a condition precedent prior to bringing its lawsuit or making a Summary Judgment motion. She dismissed the foreclosure proceeding! Banks must fully comply with statutory compliance before initiating foreclosure lawsuits.

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

Part III: Bank Of America Had Been Sued For Improperly Handling Mortgage Modifications Before

September 6, 2013 by Elliot S. Schlissel

In 2012, Bank of America settled a lawsuit brought by a former employee of a contractor who worked with the bank. This employee had accused Bank of America of mishandling HAMP applications. The Bank has also settled two major Federal lawsuits related to improper foreclosures practices.

Consolidation of Lawsuits

The pending lawsuit against Bank of America is part of a consolidation of 29 separate suits brought against the bank. The lawsuits come from across the country and have been certified as a class action. The lawsuit deals with homeowners who received trial modifications, and made all of their payments on a timely basis. However these homeowners did not receive timely responses from the bank as to whether they would be given a permanent mortgage modification. Pursuant to the HAMP program, the initial trial period was supposed to last for three months. However with Bank of America, it often lasted much longer. The problem was that Bank of America, as well as other banks, refused to properly fund their mortgage servicing operations under the HAMP program. Unfortunately there was not sufficient government oversight of these programs to pick up these problems right away.

It is estimated there are 800,000 mortgages that would have qualified for HAMP mortgage modifications if Bank of America and other large financial institutions had properly funded the HAMP program and supervised the program in the manner in which it was intended. This program was intended to help homeowners during the mortgage crisis in America. Unfortunately, since it was a voluntary program that was underfunded, it did not accomplish its goal!

The Purpose Of The HAMP Program

The purpose of the HAMP program was for the government to give cash incentives to financial institutions to modify home mortgages pursuant to specific standards. This was supposed to provide a streamlined process to help the 4 million homeowners having difficulties in the United States. Instead of accomplishing its goal, Bank of America utilized this program as a means, pursuant to statements of former employees, to obtain as much money as possible from the struggling homeowners and then foreclose their homes. Under the program, buyers were supposed to make trial payments for three months. However in many instances, the trial payments lasted for as long as a year and sometimes even longer. After making as much as a year or more of trial payments, instead of the mortgage modification becoming permanent, the homeowners were denied mortgage modifications. To make matters worse, they then found they owed the difference between the amount of the payments under the trial modification and their original mortgage payments. The Bank of America employees, in statements they had given stated that many of them were given no training whatsoever with regard to the requirement of the HAMP program.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: defective foreclosure lawsuits, foreclosure attorney, foreclosure defense, foreclosure defense attorneys, foreclosure defense lawyers, mortgage modification, mortgage modification denial, Mortgage Modification new york attorney

Home Sales Are Brisk In May 2013 On Long Island

August 13, 2013 by Elliot S. Schlissel

There were more homes for sale on the market in May of 2012 than there were in May of 2013 on Long Island. There were more new listings in Nassau County in May of 2013 than there were in May of 2012, due to the resurgence of more buyers coming back into the market place to purchase homes.

Supply And Demand Of Homes On The Market Place

Jonathan Miller, the President and Chief Executive of an appraisal firm called Miller Samuel Inc., recently stated “the supply coming on to the market can’t keep pace with demand.” He was referring to the market place in Nassau County. The strong demand by prospective purchasers is reducing the inventory of homes on the market in Nassau County. Although the inventory of homes on the market for sale has been decreasing, it is still greater than the normal inventory that existed prior to the housing crisis. A 6 ½ month supply of homes on the market is considered a balanced market in New York.

Home Prices Rise Slightly

The sale prices of homes in May rose approximately 4% in Nassau and Suffolk Counties on Long Island. This is far below the 15.4% increase in the sale prices of homes overall in the United States. However the 4% increase is still a positive factor. Rising home prices impact on the confidence in the economy. Cecelia Chen, a housing analyst for Moody’s Analytics recently stated “we are making strides towards a healthy market in terms of pace of activity.” She also stated, “Home prices are rising and construction activity is picking up, home sales are picking up, but the pace is exceptionally strong.”

Any increase in the amount of homes being sold and the prices they are being sold for is good for homeowner’s all over Long Island.

About the Author

Elliot S. Schlissel, Esq. is an attorney practicing on Long Island for more than 37 years. His law firm handles a variety of real estate matters, foreclosure law suits, and issues involving mortgage modifications.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: foreclosure attorney, foreclosure defense, foreclosure defense attorneys, mortgage modification, mortgage modification attorneys, Mortgage Modifications new york, real estate

Banks Deny Mortgage Modifications

August 9, 2013 by Elliot S. Schlissel

New York Attorney General Eric Schneiderman has decided to sue Bank of America and Wells Fargo Bank for refusing to live up to their obligations concerning mortgage modification applications. Attorney General Schneiderman stated “339 people, since October of 2012, have complained about mortgage modification problems with Wells Fargo and Bank of America.” These banks are under an obligation under a $25 billion dollar settlement with the fifty States and the Federal Government to respond to requests for mortgage modifications within 30 days. Attorney General Schneiderman claims Wells Fargo and Bank of America have flagrantly violated their obligations under the settlement of that law suit. Mr. Schneiderman stated 220 of the complaints by homeowners were against Wells Fargo and 119 complaints were made against Bank of America.

Bank Of America And Mortgage Modifications

In response to these allegations, Bank of America representatives say they had already provided relief for more than 10,000 New York homeowners. These mortgage modifications, they claimed, amounted to more than a billion dollars. Bank of America representatives claimed they would work quickly to address the complaints made to the New York State Attorney General. A Wells Fargo representative stated “it is unfortunate that [Schneiderman] has chosen this route rather than engage in constructive dialogue through the established dispute resolution process.”

Foreclosure Defense

More and more homeowners have been taken advantage of by financial institutions to which they have submitted mortgage modifications requests. The loss of documents, the many months of delays, the lack of response from the bank’s representatives are frustrating and aggravating to homeowners. The best way for a homeowner to deal with these problems is to contact a foreclosure attorney who is experienced in taking legal action against banks for their failures to live up to their obligations and State and Federal consumer protection laws.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: defective mortgages, foreclosure defense, foreclosure defense attorneys, mortgage modification, mortgage modification attorneys, mortgage modification denied, Mortgage Modifications new york, New York foreclosure attorney

Appeals Court Rejects Bad Faith Remedy In Foreclosure Action

August 7, 2013 by Elliot S. Schlissel

Judge Patrick Sweeny sitting in Suffolk County Supreme Court, compelled a bank who acted in bad faith during the mandatory foreclosure settlement conferences to grant a mortgage modification to a homeowner. The bank appealed.

The Appellate Division in the Second Department, an Appeals court, held even though the bank failed to negotiate in good faith during the mandatory settlement conferences, Judge Sweeny’s remedy of compelling a loan modification was “unauthorized and inappropriate.” Justice Dickerson wrote in a decision for the Appellate Division, “Courts may not rewrite the contract that the parties freely entered into – the loan and mortgage agreements – upon a finding that one of the parties failed to satisfy its obligation to negotiate in good faith.” Justice Dickerson held in his decision Justice Sweeny’s court order ordering Wells Fargo to comply with the terms of the original loan modification agreement was a violation of the United States Constitution’s contract clause. It was also a violation of the banks due process rights. Justice Sweeny had also ordered that the foreclosure was dismissed.

Remedies For Bad Faith By Banks Regarding Foreclosures

Concerning the lower court’s decision, Justice Dickerson acknowledged the provisions mandating good faith negotiations in settlement conferences were “silent” with regard to the issues of sanctions and remedies. His decision stated “in the absence of a specifically authorized sanction or remedy in the statutory scheme, the courts must employ appropriate, permissible, and authorized remedies tailored to the circumstances of each given case. What may prove appropriate recourse in one case may be inappropriate or unauthorized under the circumstances presented in another. Accordingly, in the absence of further guidance in the legislature or the Chief Administrator of the Courts, the courts must prudently and carefully select from among available and authorized remedies tailoring their applications to the circumstances of the case.”

Judge Dickerson said the Appellate Court saw no reason to disturb Justice Sweeny’s finding that Wells Fargo did not satisfy its obligations. The Appellate Court did not rule out other possible sanctions and remedies against Wells Fargo. However in this case, they found that Judge Sweeny had gone too far.

The Appellate Court took the position the original modification was “merely a trial arrangement, not an agreement for binding obligations of the parties going forward.”

About The Author

Elliot S. Schlissel, Esq. is a foreclosure attorney representing homeowners concerning foreclosure legal defense, mortgage modifications and other remedies against banks who have been involved in improper mortgage and foreclosure practices.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: foreclosure, foreclosure defense, foreclosure defense attorneys, mortgage modification, mortgage modification attorneys, mortgage modification denial

New York State Sues Bank Of America For Mortgage Abuses

August 5, 2013 by Elliot S. Schlissel

New York State Attorney General Eric T. Schneiderman has brought law suits against Wells Fargo and Bank of America for violations of the National Mortgage Settlement. Mr. Schneiderman has stated there are more than 339 instances where these banks failed to adhere to standards designed to protect borrowers who apply for mortgage modifications.

Mr. Schneiderman stated at a recent news conference “Wells Fargo and Bank of America have flagrantly violated their obligations under the settlement.” In his interview he said that homeowner’s have been faced with “banks, who in some cases, never even bothered to respond or correct errors in applications on mortgage modifications.”

Nationwide Settlement

In the nationwide settlement, 5 large banks agreed to pay $25 billion in damages to mortgage holders and follow a course of conduct involving loan servicing standards which were designed to protect homeowners. Attorney General Schneiderman said the standards were designed to speed up the process for home loan modifications.

About The Author

Elliot S. Schlissel, Esq. is a foreclosure attorney. He has previously been the President of the Commercial Lawyers Conference of New York, a regional Bar Association. He has extensive experience in helping homeowners with mortgage modifications, foreclosure law suits and other bank related problems.

Filed Under: Current Events, Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: foreclosure defense attorneys, foreclosure proceedings

New Law Helps Homeowners: Part II

New Law Helps Homeowners: Part I

Mortgage Servicing Agencies’ Failure to Perform Their Duties

Foreclosure Lawsuit Dismissed

Foreclosure Dismissed: No 90 Day Notice

Part III: Bank Of America Had Been Sued For Improperly Handling Mortgage Modifications Before

Home Sales Are Brisk In May 2013 On Long Island

Banks Deny Mortgage Modifications

Appeals Court Rejects Bad Faith Remedy In Foreclosure Action

New York State Sues Bank Of America For Mortgage Abuses

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