foreclosure defense lawyers

Foreclosure Dismissed – Citibank Has No Standing

January 3, 2014 by Elliot S. Schlissel

In a case before Justice Lizbeth Gonzalez, in the Supreme Court of Bronx County, the judge dismissed a foreclosure lawsuit brought by Citibank.

Citibank had filed a foreclosure proceeding against a homeowner named McCray. They had taken this action on behalf of a Bears Stearns Alt-A Trust. McCray brought a motion requesting the foreclosure lawsuit be dismissed. He argued Citibank had lacked standing to bring the lawsuit. Citibank claimed it had standing to bring the lawsuit because it was the holder of the original note.

Holder or Assignee of the Note and Mortgage

Judge Gonzalez in her decision stated a foreclosing party in a foreclosure lawsuit has standing when they are both the holder or assignee of the mortgage and underlying note at the time the action is commenced.

Citibank’s attorneys had argued they were the holder of the note. However, their legal submissions did not state they also were the holder of the mortgage.

Motion to Dismiss Case Granted

Judge Gonzalez found that there was no proof submitted by Citibank they were the holder of both the mortgage and the note at the time of the initiation of the lawsuit. The court therefore granted McCray’s motion to dismiss. Judge Gonzalez found that Citibank did not submit adequate proof it had the right to the debt in the absence of documentation of chain of custody and proof the mortgage and notes were lawfully assigned and held by it prior to commencing the lawsuit. Since Citibank did not establish and meet the requirements they had standing to bring the foreclosure lawsuit, Judge Gonzalez held that they did not have standing to foreclose and their foreclosure lawsuit was dismissed.

Conclusion

Before a financial institution can bring a foreclosure lawsuit they must be able to prove that they are the holder of both the note and mortgage. In addition, they must show that the mortgage has been rightfully assigned to them and the assignment was properly filed. The documentation of the assignment, the possession of both the note and the mortgage, should be attached to the summons and complaint in the foreclosure legal action. If the financial institution does not do this, the court should dismiss the case for lack of standing.

Elliot S. Schlissel is a foreclosure defense attorney. His office has helped homeowners in scores of cases fight foreclosures and remain in their homes.

New Mortgage Rules: Too Little, Too Late!

January 2, 2014 by Elliot S. Schlissel

A new agency called the Consumer Financial Protection Bureau has been established. The purpose of this agency is to see to it we do not end up in another real estate bubble related to improper, unfair and illegal mortgage practices by financial institutions.

Owning one’s home is the American dream. The process of purchasing a home involves applying for a mortgage. Mortgage brokers and loan officers at banks seek to simplify this process. However, applying for a mortgage loan is generally the largest financial transaction a family enters into. The Consumer Financial Protection Bureau is set up pursuant to the Dodd-Frank financial reform law. New applications and forms are created by this statute. They are supposed to be in simplified, easy to read, and involve complete disclosure.

Financial institutions are supposed to clearly provide individuals applying for the mortgage with information concerning the actual cost of the loan. The principal amount. The amount of interest they are being charged and what they will spend in closing costs. The forms must also contain information concerning other aspects of the financial transaction including but not limited to whether there will be prepayment penalties and other costs related to the financing. The new law goes a long way to simplifying and clarifying this process for prospective home buyers. However, it does not go far enough.

Failure of the New Mortgage Rules

What the new forms do not do is provide the prospective homeowner with a logical basis to compare loan products from different financial institutions. The new loan forms do not include various costs related to the purchase of a home. Some of the costs these forms do not deal with are title insurance, closing expenses related to taxes, fuel oil costs to heat the house, and attorneys fees for hiring an attorney for legal representation.

No Three Day Right to Review

The Consumer Financial Protection Bureau had initially requested that all financial institutions be required to give the mortgagors a three day right to review the information whenever loan terms concerning the transaction are changed or modified. Unfortunately, this rule was not established. Lenders still have the ability to present the mortgagors, at the time of the closing, with changes in the cost structure of the financing. This is both unfair and unreasonable. You have homeowners sitting at the table at their closing expecting to pay one amount for the financing of their home and being told at the last minute, it is going to cost you more. They are too deep into the transaction to walk away. They are stuck with a higher cost of their mortgage. This is true even if the higher costs are beyond their ability to pay. Lenders should be forced to live up to the terms of their proposals when they offer prospective homeowners mortgages. They should not be allowed to change the terms at the last minute to the prospective homeowners detriment.

The establishment of the Consumer Financial Protection Bureau under the Dodd-Frank financial reform law was a great idea. Unfortunately, this great idea has not worked out completely to consumer’s benefit.

Elliot S. Schlissel is a foreclosure defense lawyer with more than 45 years of legal experience. He litigates foreclosure lawsuits throughout the Metropolitan New York area. He keeps families in their homes and helps them obtain mortgage modifications.

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

The Foreclosure Process in New York

November 18, 2013 by Elliot S. Schlissel

The foreclosure process in New York is much more complicated than most homeowners understand it to be. It is a process that involves a number of steps to complete. The purpose of this article is to inform homeowners about the foreclosure process and the options homeowners have to stop foreclosures from moving forward.

Time Frames for Foreclosure

The foreclosure process in New York can be discussed with regard to two types of time frames. If the homeowner ignores the Summons and Complaint, takes no legal action and does not hire an attorney to defend them, the process can take approximately 18 months and depending on how aggressive the financial institution is, even longer. However, if the homeowner hires an attorney, files a formal Answer, contests the proceedings, engages in the discovery process and opposes a summary judgment motion, the foreclosure process can be extended to 3 years or more.

Missing Mortgage Payments

In the event you are unable to make your mortgage payments on a timely basis, the best means of dealing with the situation is to notify your financial institution. Many of the lenders in New York are willing to work out payment plans during financial hardship situations for homeowners. You can apply for a mortgage modification or a forbearance agreement. In the event you realize you will not be able to make your mortgage payments over the long run, it is necessary to hire a foreclosure attorney to represent you in the foreclosure proceeding that will be forthcoming.

Banks do not, in New York State, take action to initiate foreclosure proceedings until the homeowner is a minimum of 3 months behind in their mortgage payments. Some banks will wait as long as 6 to 9 months before they will consider taking legal action. If there are problems with the paperwork, issues involving assignments, robo-signers, violations of truth in lending or New York State laws, the banks may wait years before they initiate a foreclosure proceeding.

Pre-Foreclosure Notice

In New York State a lender must notify the homeowner in writing 90 days before beginning legal proceedings. This pre-foreclosure notice advises the homeowner the bank is accelerating the mortgage. This means the bank is calling the entire amount of the mortgage due and owing. Once the mortgage is accelerated, if the homeowner makes a mortgage payment, the banks will usually reject the payment and demand the entire mortgage be paid in a lump sum.

Foreclosure Legal Proceeding

The foreclosure process is started by the attorney for the financial institution drafting a summons and complaint, filing the summons and complaint, and hiring a process server to serve the summons and complaint on you. If the summons and complaint is served on you personally, you have 20 days to hire an attorney and submit a formal written answer. If it is served on you in any other manner other than through personal delivery, you have 30 days to respond by submitting a written Answer to the summons and complaint.

Mortgage Modification

Some homeowners have the mistaken idea that submitting a mortgage modification application acts as a response to the summons and complaint. This is not true. If served with a summons and complaint in a foreclosure, you need to submit a written answer admitting or denying the allegations in the complaint alleging affirmative defenses and possibly countersuing the bank.

End of Foreclosure Proceeding

A foreclosure proceeding ends by the sale of the home by a referee in an auction type sale. Don’t wait for this to happen. Hire a competent foreclosure defense lawyer to represent you if you want to stay in your home!

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: foreclosure, foreclosure attorney, foreclosure defense, foreclosure defense attorneys, foreclosure defense lawyers, foreclosure proceedings, mortgage modification attorneys, mortgage modifications, New York foreclosure attorney

What Do You Need to Know Before Buying a Home?

November 2, 2013 by Elliot S. Schlissel

When buying a home, prospective purchasers need to look at all of the factors involving the home. They should not be overly focused on the most attractive details of their prospective purchase. Sometimes prospective purchasers fall in love with the kitchen or the bathrooms. While an attractive kitchen and modernized bathrooms are important, there are other factors to be taken into consideration when purchasing a home.

The Home’s Condition

Before purchasing a home, every prospective purchaser should hire an engineer for the purpose of looking into the heating system, plumbing system, electrical system, checking that the roof doesn’t leak, and looking into the structural integrity of the house. The engineer should be especially careful to look into whether the house has drainage issues and/or whether it floods in heavy rainstorms.

Location, Location, Location

Before purchasing a house you should drive around the house’s neighborhood. You should look into how far the house is from schools, public transportation, and stores. Purchasing a house in an area that has an excellent school district adds value to the house and will help your children advance in their lives and careers.

Taxes

The amount you will be paying each year for school taxes and real estate taxes should be a significant factor in making a decision as to whether this is the right home for you. Unfortunately, taxes usually go up. You should take into consideration how much the taxes in this area have risen in the last few years and plan to pay higher taxes in the future on the home.

Nuisances

Are there businesses, factories or other circumstances nearby the prospective home that will cause either a noise, pollution or general type of nuisance for you?

Home’s History

Some people are very superstitious about buying a home where individuals died or were murdered in. If this is an issue for you, you should look into the history of who owned the home and what happened to those former homeowners.

Meeting Your Needs

Lastly and most importantly, the home must meet your needs. Are there enough bedrooms? Will there be enough space in the home? Above all, can you really afford this home?

Elliot S. Schlissel, Esq., for more than 45 years has been representing homeowners with regard to the purchase and sale of single family homes. In addition, Elliot and his aggressive associates fight foreclosure lawsuits, help their clients obtain mortgage modifications, and are well known foreclosure lawyers.

Filed Under: Foreclosure Tagged With: foreclosure, foreclosure attorney, foreclosure defense, foreclosure defense attorneys, foreclosure defense lawyers, foreclosure proceedings, mortgage modification attorneys, real estate, real estate attorneys

Appearance at a Foreclosure Settlement Conference Considered an “Informal Appearance” and not a Default by the Mortgagor

October 7, 2013 by Elliot S. Schlissel

In a case of first impression, Justice Jack Battaglia sitting in Supreme Court Real Property Part in Kings County, New York, dealt with an issue as to whether the appearance by the mortgagor at the mandated Foreclosure Court Conference part in Kings County without submitting a formal written answer to the summons and complaint can be considered an informal appearance denying the financial institution the ability to claim the homeowner was in default.

In this case, the financial institution brought a summary judgment application to the Court. A summary judgment motion claims there are no issues of fact and therefore no trial is necessary. The basis for the summary judgment was the default by the mortgagor, Butler, in this proceeding. There were two prior applications by the financial institution but questions concerning the affidavit of service caused them to be denied. The Judge had the case sent over to the Foreclosure Settlement Conference Part for mandatory foreclosure settlement proceedings.

Mr. Butler made numerous appearances at the Foreclosure Conference Part. The judge questioned whether since Butler appeared in the action in the Foreclosure Conference Part, how could she be “in default” for purposes of entering a judgment on default. The Court took the position, under New York case law, what Butler made was called an “informal appearance” within the time specified in the Summons and Complaint.
This is covered by New York Civil Practice and Rules § 320(a). The judge therefore entered a decision that Butler was not in default. A motion to enter judgement based on default could not be granted since Butler was not in default. Butler had participated in court conferences pursuant to this informal appearance. It should be noted, Butler appeared twenty-five times in the Foreclosure Conference Settlement Part and several other times before the court. The financial institution’s application for a default judgment was denied.

Elliot S. Schlissel is a foreclosure defense attorney representing homeowners throughout the metropolitan New York area. Elliot and his staff of attorneys have been keeping homeowners in their homes for more than 45 years.

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

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

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

Foreclosure Dismissed – Citibank Has No Standing

New Mortgage Rules: Too Little, Too Late!

The Foreclosure Process in New York

What Do You Need to Know Before Buying a Home?

Appearance at a Foreclosure Settlement Conference Considered an “Informal Appearance” and not a Default by the Mortgagor

New Law Helps Homeowners: Part II

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

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