To watch today’s video blog, please click on the link below:
Elliot S. Schlissel is a foreclosure defense lawyer. He can be reached at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.
Ignorance of The Law Is Not a Valid Defense in Foreclosure
October 5, 2014 by
Please click on the link below to view today’s video blog:
Elliot S. Schlissel is a foreclosure defense attorney. He can be reached by telephone at 516-561-6645 or 718-350-2802, or by email to schlissel.law@att.net.
Squatters and Foreclosed Homes
October 2, 2014 by
Please click on the link below to watch today’s video blog:
Elliot S. Schlissel is a foreclosure attorney. He can be reached at 516-561-6645 or 718-350-2802. He can also be reached by email to schlissel.law@att.net.
Lack of Standing Must Be Plead As An Affirmative Defense
September 22, 2014 by
Please view today’s blog article regarding pleading defenses in a foreclosure action by clicking on the following link:
Elliot S. Schlissel is a foreclosure defense lawyer. He can be reached at 1-800-344-6431 or by email at schlissel.law@att.net.
Supreme Court Refuses to Appoint Temporary Administrator
September 18, 2014 by
Wells Fargo Bank had brought a foreclosure proceeding in August 2013 against Grotzer. Grotzer died on January 22, 2013. He was the sole owner of the property and the only person who signed the note and mortgage. Wells Fargo brought an application in the Supreme Court requesting the appointment of a temporary estate administrator. They took this action to avoid going to the Surrogate’s Court to appoint an administrator of the decedent’s estate. Their action was for the sole purpose of continuing their lawsuit for foreclosure of the mortgage.
Justice James Pagones sitting in the Supreme Court of Dutchess County denied their request. The judge took the position that Wells Fargo should commence a proceeding in the Surrogate’s Court under Surrogate’s Court Procedure Act section 1001 with regard to this case. The shortcut Wells Fargo’s attorneys sought to take was inappropriate. Even though this might delay the foreclosure case somewhat Wells Fargo still had to follow the appropriate legal procedures to maintain their foreclosure lawsuit.
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.
How To Spot Bank Fraud – Part II
September 12, 2014 by
The Notarization of the Assignment Document
The assignment document needs to be notarized. The first thing you should check is if the date of the notarization is the same date as the date the person with the power of attorney, or the alleged officer of the financial institution executed the assignment. The second item you should look for is whether the notarization is from a notary in the same state as the individual who executed the assignment on the date of its execution. The notarization should have taken place on the same day and at the same location as the signature of the person making the assignment for the financial institution.
Is The Bank Still in Business?
During the past ten years, numerous mortgage companies, financial institutions and banks have gone bankrupt, have been dissolved, have merged and/or have been acquired by other financial institutions. If the bank or financial institution no longer exists, how could an employee of an institution that no longer exists execute an assignment? In these cases there is usually some sort of fraud which took place.
If the financial institution indicates there was a document attached to the note or affixed to the note, check to see if there are staple marks. If no staple marks exist on the document it is either not the original document or there was nothing actually attached to the document. If the financial institution is claiming the note is lost, check to see there has been an affidavit submitted explaining in detail the circumstances and events related to the loss of the original note. Be careful to make sure the person signing the affidavit actually was in a position to have personal knowledge about the loss of the note.
Elliot Schlissel is foreclosure defense lawyer. He has helped scores of New Yorkers fight foreclosure lawsuits and stay in their homes.
How To Spot Bank Fraud – Part I
September 4, 2014 by
The purpose of this article is to acquaint homeowners with spotting obvious bank fraud related to foreclosure lawsuits. In a case where there is a mortgage on a home, it is necessary for the bank to prove to the court that as of the date of the initiation of the foreclosure lawsuit it was in possession of the original note and mortgage. In addition, the bank must be able to prove to the court that as of the date of the initiation of the foreclosure lawsuit it owned the mortgage.
Checking to See If An Assignment is Valid
The following is a list of ways of investigating whether the assignment to the bank which has initiated the foreclosure lawsuit against you was in conformity to New York State law.
The first thing you should do is look at the signatures on the assignment document. Next to the signature should be the date of the assignment. Check to see the date of the assignment was earlier in time than the date the bank initiated the foreclosure lawsuit. The date on the top of the assignment document should not be different from the date it was executed at the bottom of the document.
Check to see if the person executing the assignment has executed it as “attorney in fact.” This means the person executing the assignment was executing it under power of attorney. In that case there should be a power of attorney related to this assignment. The bank should be able to produce the power of attorney so you can ascertain as to whether the person who executed as attorney in fact actually had power of attorney on the date he or she executed the document. If the person with the power of attorney was not an employee of the financial institution which was the holder of the assignment he or she may not have had the appropriate authority to execute the assignment.
Understanding How Bank Lawyers Operate in Foreclosure Cases
August 29, 2014 by
The law firms which represent financial institutions in foreclosure legal actions sometimes process thousands of foreclosure cases per year. These law firms are designed to operate efficiently to obtain a maximum profit level on the foreclosure cases they handle. They are most profitable and most successful with regard to their foreclosure litigation when they don’t run into a foreclosure defense lawyer who has a detailed understanding of the legal process involved in foreclosures, the defenses which can be plead and the problems financial institutions have in prosecuting foreclosure lawsuits. It is most profitable for the bank lawyers processing foreclosures when they can move forward with their lawsuit without significant opposition from the homeowners and their counsel.
When my office raises twenty or more affirmative defenses and countersues financial institutions involved in foreclosure lawsuits, it creates numerous problems for the financial institutions and their attorneys. To start with, the bank lawyers go from aggressive moving party to defending their clients’ practices, producing documents and explaining to the court whether all aspects of the mortgage transaction were legal, ethical and appropriate. In numerous cases in which our law firm is involved, we take the banks and their attorneys to task. Sometimes these cases get put aside for years by the bank’s attorneys. In some of the cases the banks simply move to dismiss their own lawsuit.
Mortgage Modifications
By submitting an aggressive, well thought out series of affirmative defenses and counterclaims, the banks are put back on their heals. One of the ways they deal with these cases is by entering into negotiations for mortgage modifications. Sometimes the pressure of an aggressively litigated foreclosure defense results in the bank offering very favorable mortgage modifications as a means of ending the lawsuit.
Conclusion
If you are sued in a foreclosure, hire an experienced, dedicated foreclosure attorney to protect your rights and prevent the financial institution from taking advantage of you.
Defense to Foreclosure Lawsuit: Statute of Limitations
August 22, 2014 by
There is a statute of limitations in every state of the United States with regard to bringing a foreclosure lawsuit. If the financial institution which holds your mortgage does not initiate the foreclosure lawsuit within the statute of limitations period, a defense can be raised in your answer to the summons and complaint that the lawsuit is barred by the statute of limitations. The statute of limitations in the State of New York to bring a foreclosure lawsuit is six years.
Calculating Time Periods for the Statute of Limitations
The usual start of the running of the six year time period under the statute of limitations, in the State of New York, is from the time the homeowner made their last mortgage payment. For example, if the homeowner’s last mortgage payment was made January 1, 2010, the statute of limitations defense could be utilized by the homeowner if the foreclosure lawsuit was not initiated on or before January 1, 2016.
Statute of Limitations: An Affirmative Defense
Affirmative defenses are specific defenses to lawsuits which need to be plead in the pleadings of a responding party. In a foreclosure lawsuit, the homeowner must plead the statute of limitations and other affirmative defenses in their written answer which is submitted to the court and to opposing counsel. Failure to plead a statute of limitations defense or other affirmative defense in an answer acts as a waiver of that defense. Over the years I have had prospective clients who have come into my office and said to me things such as, the foreclosure lawsuit was illegal because it was initiated more than six years from the time they stopped making their mortgage payments. This is not true. As indicated earlier in this paragraph, the statue of limitations defense must be plead as an affirmative defense in an answer to the summons and complaint or else it is waived. Unfortunately in some of the situations clients have brought this up to me in, they had waived their right to submit the affirmative defense of statute of limitations.
Once the financial institution starts the lawsuit, the issue of the statute of limitations as a defense is no longer applicable. So if the foreclosure lawsuit is started four years after the date of default and it goes on for five years, there is no statute of limitations defense available. Once the lawsuit is started, it does not make any difference however long it takes to be finalized or resolved. The statute of limitations only applies to the first six year period.
Conclusion
If you think you have a statute of limitations defense, it is strongly suggested you contact an experienced foreclosure defense lawyer and discuss this issue with him or her and the best way to present it in your pleadings.
Default Interest Rate in Foreclosure 24%
August 6, 2014 by
In a case before Magistrate Judge Lois Bloom in the Eastern District of New York (a Federal Court) a borrower named McLaughlin had borrowed $184,000 and provided a note and mortgage to the financial institution regarding the mortgage. The financial institution brought an application for summary judgment claiming there were no issues of fact.
In the summary judgment motion, the attorneys for the financial institution cited a portion of the promissory note which said “in the event of default of the note specified that a 24% per annum ‘default rate’ should remain in effect until such time as all events regarding default were cured.”
Statutory Interest Rate in New York 9%
McLaughlin argued to the court the bank’s calculation of interest at the rate of 24% was improper. He claimed when judgment was granted on the summary judgment motion to the financial institution, they should have used the default rate of interest under New York statutory law of 9%.
Magistrate Bloom considered McLaughlin’s arguments. However, she found the 24% default rate of interest in the note would apply in this situation. She rejected McLaughlin’s argument the New York rate of interest of 9% on judgments was appropriate. She took this position because the contract clearly stated the interest would accrue at the rate of 24% per annum in the event of default until such time as the entire amount of the note was fully paid. She found even after a judgment was entered in the bank’s favor, they would continue to be entitled to an interest rate of 24%.
Conclusion
I find a 24% interest rate of a mortgage is outrageous. Most people do not carefully read mortgage notes when they enter into them. Often, attorneys who represent clients at closings on real estate transactions don’t go into detailed explanations concerning the potential for an interest rate raising from a reasonable rate to 24%. I disagree with this court’s decision. However, Judge Bloom’s decision is now the law of this case.
Elliot Schlissel is a foreclosure lawyer. His office has represented scores of New Yorkers successfully in bank foreclosure proceedings. Elliot strives to keep his clients in their homes!
