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Elliot S. Schlissel is a foreclosure lawyer who has been representing homeowners for more than 45 years. His goal is to keep homeowners in their homes. He defends homeowners in foreclosure lawsuits and helps his clients in obtaining mortgage modifications. He and his associates can be reached for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.
When someone says they are “in foreclosure” they are referring to the fact the holder of their mortgage has filed a lawsuit against them in the Supreme Court of the County in which their home is located. Lenders in New York State, which are most often banks or mortgage companies, bring foreclosure lawsuits to obtain judgments against homeowners. When the foreclosing bank obtains the judgment of foreclosure, they can then take the next step and ask the court to appoint a referee to sell the home at auction. When the sale takes place, any funds received from the sale are given to the bank to pay off the loan owed by the homeowner. If there are funds left over after paying off the mortgage the homeowner can claim the funds.
It is then fair to say a home is “in foreclosure” until the time the home is sold at auction and a new individual or entity purchases the home.
Is Your Home “In Foreclosure”?
Should your home be in foreclosure, it is important you know what stage the foreclosure is at. This will let you know the progress of the lawsuit. If you are litigating the lawsuit, you need to know whether you are winning or losing the lawsuit. The stage it is at can give you some idea as to how long you can remain in your home if things aren’t going well in the foreclosure lawsuit.
Foreclosure Defense Lawyer
If you want to sleep at night and know you are protected in the foreclosure lawsuit, the best way to deal with that is to hire a qualified foreclosure defense lawyer. Our law firm has hundreds of foreclosure defense cases pending in the courts in the Metropolitan New York area. In most cases, the homeowners we represent get to live a minimum of 3 years without paying any expenses on their homes during the pendency of the foreclosure lawsuits. We offer free consultations and our phones are monitored 24/7. Should you have questions or concerns about your home going into foreclosure, call us. We can be reached at 1-800-344-6431, 516-561-6645, and 718-350-2802.
Ocwen Financial Corporation, the largest sub prime mortgage servicing company in the United States, has entered into a consent order with the State of New York to pay $150 million dollars to New York homeowners and to modify and reform its practices concerning the servicing of mortgage obligations. The settlement was made with the Department of Financial Services of the State of New York.
Payment to Former and Current Homeowners
The terms of the settlement require Ocwen to pay $50 million dollars in restitution to both current and former homeowners who had dealings with Ocwen. Ocwen is to pay $10,000 to each homeowner who lost their homes pursuant to a foreclosure proceeding since 2009. In addition, Ocwen had to pay a $100 million dollar civil penalty by the end of December 2014. The State of New York is going to utilize these funds for foreclosure relief, housing for families whose homes have been foreclosed on and for community development purposes.
The $150 million dollar consent agreement with Ocwen was the result of an investigation between 2010 and 2011 concerning wrongful foreclosures, poorly documented foreclosure practices, “robo-signing”, the submission of inaccurate affidavits to courts, and sloppy, improperly maintained business records and paperwork.
Conclusion
In the event you are a homeowner whose home is currently in foreclosure or was foreclosed upon by Ocwen since 2009, you are entitled to compensation pursuant to Ocwen’s settlement with New York State.
Elliot Schlissel is a foreclosure defense attorney. He helps keep clients in their homes. He obtains mortgage modifications for clients and he fights for client’s rights in foreclosure lawsuits.
Please click on the link below to watch today’s video blog:
Elliot S. Schlissel is a foreclosure attorney who has been helping homeowners stay in their homes for more than 45 years. He defends his clients in foreclosure lawsuits, helps his clients obtain mortgage modifications, and when appropriate, represents them in bankruptcy proceedings. He and his associates can be reached for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.
Homeowner Lyo brought a breach of contract proceeding against Bank of America. Lyo had attempted to obtain a mortgage loan modification from Bank of America. She had contacted Bank of America. Bank of America sent her an application for a loan modification. Thereafter Bank of America accepted and mailed Lyo an agreement for a trial modification mortgage plan.
Payments Made Under Trial Mortgage Modification
Lyo made all necessary payments under the trial program. She continued to make payments which were accepted by Bank of America even after the trial program finished. However, Bank of America never sent her a permanent mortgage loan modification. Bank of America notified Lyo she did not meet the eligibility requirements for a modified loan. They claimed this was due to the present value of her home.
23 Payments Accepted, 24th Payment Rejected
Bank of America had accepted payments from Lyo for 23 consecutive months after she had agreed to the trial period mortgage modification plan. Bank of America rejected her 24th payment. Supreme Court Justice Judith McMahon sitting in the Supreme Court Part in Richmond County ruled Lyo’s temporary mortgage modification plan could be considered an enforceable agreement. This agreement granted Lyo a loan modification as described within the terms of the agreement. She found the language in the temporary mortgage modification plan unequivocally provided, if Lyo complied with all the conditions, Bank of America was obligated to grant her a permanent loan modification. Bank of America’s application to dismiss Lyo’s breach of contract lawsuit against it was therefore denied.
Conclusion
Numerous homeowners come to my office each and every month with a story of woe concerning temporary mortgage modifications. The story goes as follows, the bank offered them a temporary mortgage modification and they accepted it. They thereafter made payments for a period of time, usually six months, under the temporary mortgage modification plan. Thereafter the bank comes up with some type of reason to turn them down for a permanent loan modification. Sometimes the reasons are very spurious. Homeowners who fulfill their obligations under temporary mortgage modification plans should always be given a permanent mortgage modification under the same terms!
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 their homes for more than 45 years. Elliot and his associates help their clients obtain mortgage modifications and defend foreclosure lawsuits. Elliot can be reached for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.
Wells Fargo Bank brought a foreclosure legal action in the Supreme Court of Bronx County. The case was before Justice Mary Ann Brigantti. The defendant in the case, Ali, brought a motion to dismiss Wells Fargo’s Complaint. The motion claimed the residential foreclosure lawsuit was time barred.
The bank had initiated the foreclosure case with an Order of Reference entered in its favor. It had accelerated the mortgage when Ali failed to make payments on the loan. Ali’s moving papers stated the new foreclosure proceeding was not initiated until almost a year after the six year statute of limitations to bring a new foreclosure lawsuit had expired.
Statute of Limitations Defense Waived?
The bank claimed Ali waived the statute of limitations as a defense because he had not plead this defense in his answer. In addition, Wells Fargo’s attorneys claimed the initial acceleration of the mortgage (at the time of the accelerating of the mortgage the statute of limitations begins to run) may not have been valid because at the time it took place, Wells Fargo may not have had standing to commence the lawsuit. This was because the assignment was executed sending the mortgage to Wells Fargo after the lawsuit was initiated. The bank also claimed they revoked the prior acceleration of the loan by voluntarily discontinuing the prior lawsuit without prejudice in 2012.
Judge Brigantti denied Ali’s motion to dismiss. Her decision stated he waived the statute of limitations as a defense because he did not plead it as a defense in his Answer to the bank’s Complaint. In addition, the judge stated Ali did not establish the bank properly accelerated the debt in the prior lawsuit which was discontinued in 2007. Since Ali didn’t prove the acceleration of the debt he cannot argue the statute of limitations was triggered.
Conclusion
It is important to allege a statute of limitations defense in the event there is any possibility six years has elapsed from the initial acceleration of the note and mortgage. The statute of limitations is an extremely powerful defense. This is because it is a complete defense to bringing a lawsuit on the note. If the statute of limitations has expired, the bank’s lawsuit will be dismissed by the court if an appropriate motion is made.
Wells Fargo brought a foreclosure lawsuit against defendants in a Supreme Court Foreclosure Part in Kings County. The case was before Supreme Court Justice Carolyn Demarest. Wells Fargo eventually brought a motion to strike the defendant’s Answer and for summary judgment. The bank’s moving papers in the motion stated the defendants did not make a single payment on the note. The default was more than nine years old.
Note And Mortgage Assigned On Numerous Occasions
Justice Carolyn Demarest looked into the fact the note and mortgage had been assigned many times. Upon close examination she found all three assignments were assigned by a single person. This individual was identified only as an “authorized signator”. There was no explanation as to which entity the person was working for at the time he signed all three assignments. In addition, the bank alleged it had physical possession of the note before the commencement of the action. However, the judge found there was no explanation in the affidavit submitted by the bank’s servicer as to why assignment number three was dated more than a month before assignments one and two.
Bank’s Standing to Foreclose Challenged
The homeowners challenged the bank’s standing to proceed on this foreclosure lawsuit. Justice Demarest in her decision stated, the bank claimed the physical possession of the note, in and of itself, gave it standing at the time of the commencement of the lawsuit.
Summary Judgment and Motion to Dismiss Denied
Justice Demarest found the defendants had raised an issue of fact with regard to whether the bank actually had possession of the note before the action was initiated. Based on this, she denied the bank’s motion for summary judgment and to strike the defendant’s first and fifth affirmative defenses.
Conclusion
It is clear the bank’s representations cannot possibly be true in this case. As stated most eloquently by William Shakespeare, “there is something rotten in Denmark.”
Please click on the link below to watch today’s video blog:
Elliot S. Schlissel is a foreclosure defense attorney. He and his associates have been representing homeowners for more than 45 years. Elliot represents homeowners throughout all phases of foreclosure litigation, at foreclosure settlement court conferences and helps his clients obtain mortgage modifications. He can be reached at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net. Contact the office for a free consultation.
Mandatory Foreclosure Settlement Conferences
After the bank files a Summons and Complaint, the Summons and Complaint is served on the homeowner and the Affidavit of Service is filed with the County Clerk’s office in the County in which the property is located. The court must hold a mandatory foreclosure settlement conference within sixty days. The purpose of this conference is to determine whether the lender and homeowner can resolve the foreclosure lawsuit without it going forward. The real purpose of this conference is to see if the homeowner wishes to apply for a mortgage modification and if the homeowner will obtain a temporary mortgage modification.
Mortgage Modifications
My office represents hundreds of homeowners at foreclosure settlement conferences. Homeowners often have an unrealistic expectation of obtaining a mortgage modification. The large majority of homeowners will never obtain a mortgage modification for numerous reasons. Even those homeowners who obtain temporary mortgage modifications don’t always receive permanent mortgage modifications.
Banks Want To Make A Profit
Banks are financial institutions. They are interested in making money. They are not social service agencies. The fact that a homeowner has children, a sick mother, lost their job, broke their leg, was in a car accident, and numerous other reasons does not make it a financially beneficial transaction for the bank to give them a mortgage modification. Banks want to make money! If they don’t think they are going to make money, because the homeowner is going to have an inability to pay the mortgage or for another reason the bank can deny the mortgage modification request.
Scheduling the Mandatory Foreclosure Settlement Conference
The court sends notices to the bank and to the homeowner of the scheduled day and time of the mortgage modification conference. Sometimes numerous conferences take place. Our office has been involved in cases where well over a dozen conferences have been involved. In the end, either the homeowner gets a mortgage modification or the case gets sent out to a part (courtroom) for the purposes of litigating the issues involved in the foreclosure case. As indicated earlier, these issues only get litigated if the homeowner filed an Answer.
