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The 90 Day Notice of Default

foreclosure on Long IslandA recent case in Kings County before Justice Yvonne Lewis sitting in the Supreme Court, Foreclosure Part, deals with the 90 day notice of default. New York Real Property Actions and Proceedings Law Section 1304 requires that a financial institution must serve a 90 day notice accelerating the mortgage and calling it due and payable before a foreclosure proceeding can be initiated.

In this case the bank sought to confirm the appointment of a referee granting a judgment of foreclosure and sale. The lawsuit alleged the defendants defaulted under the terms of the note and mortgage. In addition, the suit claimed it was not a “high cost” or “sub-prime” loan and it was actually a commercial mortgage made to a commercial borrower. The financial institution claimed the mortgage was made for investment purposes.

Bank’s Failure to Serve A 90 Day Notice

The defendant maintained the bank had failed to comply with Section 1304 concerning the serving of a 90 day notice of default. Counsel for the plaintiff presented arguments alleging there was no need for service of a notice of default under Section 1304. They claimed they were exempt from this requirement because this was a commercial loan and not a residential loan. The bank’s position was that Section 1304 only applied to residential mortgages. The defendant contended the loan was a personal loan and the mortgaged property was used as his place of principle residence.

Judge Yvonne Lewis found there was a question as to whether the 90 day notice was required, and if it was required, was it properly served upon the defendant. Due to her concern regarding this issue, she denied the bank’s request for a judgment of foreclosure.

Conclusion

The 90 day notice needs to be served in all residential foreclosure proceedings. The failure of financial institutions to serve it can be plead as an affirmative defense in the defendant’s Answer to a foreclosure lawsuit brought by a bank.New York foreclosure defense lawyer

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

mortgage modification attorneysResponse To The Motion For Summary Judgment

When the motion for summary judgment is made, it is extremely important the attorney for the homeowner submit an aggressive, well thought out, well-written response to the motion for summary judgment. If the attorney for the homeowner is successful in defeating the motion for summary judgment, the litigation will continue and the case will eventually get placed on a trial calendar for a trial on the issues raised in the plaintiff’s Complaint and the defenses alleged in the homeowners’ Answer.

If the bank is successful with regard to the motion for summary judgment, the court will grant the motion and the lender will thereafter move for an Order of Reference as described in Part II of this series of articles.

Trial

As stated earlier, in the event the motion for summary judgment is defeated, the case will eventually go to the trial calendar. However, before the case goes to the trial calendar, the attorneys for the homeowner can make motions on their own to dismiss the case and for all types of other relief.

Conclusion

The foreclosure legal process described in this series of articles just gives an overview. Numerous nuances, subtleties and other legal procedures can be taken during this process. The best way of dealing with any foreclosure lawsuit is to immediately hire an experienced, dedicated foreclosure defense lawyer. Before you hire any lawyer to represent you in a lawsuit as significant as this, you should investigate his or her background. The lawyer should not be someone who handles a foreclosure defense case every now and then. You should hire a lawyer who does a significant amount of foreclosure defense legal work.

Be aware, the attorneys for the financial institutions usually bring hundreds of foreclosure cases each and every year. Many of these law firms have been doing this for decades. They have expertise in dealing with these foreclosure related issues. Some law firms that handle a foreclosure defense case every now and then may not have the expertise, experience, and wherewithal to litigate with the attorneys representing a financial institution worth hundreds of billions of dollars.foreclosure attorney on Long Island and New York City

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

foreclosure lawyer Long IslandLitigation

Litigation only begins in the foreclosure proceeding after the case leaves the settlement conference area. At that point, there is a stage in the lawsuit called the discovery stage. The discovery stage allows the parties to the lawsuit to request documents, information, and respond to written requests to answer questions called Interrogatories or a Bill of Particulars. It is important that homeowners who have submitted Answers participate in the discovery process. This allows them to obtain information with regard to bank practices, underwriting, and all other issues involved in their transaction with the bank.

The lender can also make discovery demands upon the homeowner. The lender’s discovery demands usually relate to issues raised by the homeowner in their Answer. Another purpose for the lender’s discovery demands is to obtain more information for them to be successful in their foreclosure lawsuit.

Motion Practice

In almost all foreclosure lawsuits, the attorneys for the financial institution at some point bring a motion for summary judgment. In the motion for summary judgment, the attorneys for the financial institution allege the defenses in the homeowners’ Answer are completely without merit. The standard in a motion for summary judgment is to determine whether there is an issue of fact for the court to really look at in the lawsuit.

Summary Judgment

Another way of looking at a motion for summary judgment is that it is a request by the attorneys for the bank to eliminate the homeowner’s Answer, avoid a trial, and go right to judgment. The court will grant the motion for summary judgment if they believe the homeowner has not presented any valid defenses or there is no evidence or documentation to their defenses and/or affirmative defenses.foreclosure attorney on Long Island and New York City

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

foreclosure defense lawyernersMandatory 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.foreclosure attorney on Long Island and New York City

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

foreclosure lawyerThe 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.foreclosure attorney on Long Island and New York City

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

foreclosure defense Filing the Summons and Complaint

The first step in the actual legal process in the court system involves the financial institution hiring a law firm which drafts a Summons and Complaint and files the Summons and Complaint in the County Clerk’s office of the County in which the home to be foreclosed on is located. Simultaneously with filing a Summons and Complaint most attorneys representing financial institutions also file a “Lis Pendens“. A lis pendens is notice to the world a lawsuit is pending in court involving the home. The lis pendens specifically tells all people who do a title search on the property the home is in litigation. This has a negative effect on the title to the home.

Service Of The Summons And Complaint

After the Summons and Complaint is filed, the attorneys for the financial institution receive an index number and a filing date for the Summons and Complaint. This is attached to the top right hand corner of the Summons. Thereafter, the attorneys for the bank hire a process serving company to serve the Summons and Complaint on the homeowner.

Methods of Service of the Summons

There are a variety of ways the service of the Summons can be made in the State of New York. The Summons can be actually put in the hand of the homeowner. It could also be left with a person of suitable age and discretion at their principle place of residence or place of business. In addition, the Summons and Complaint can be tacked to the door and mailed to the homeowner. It is extremely important the homeowner not ignore the Summons and Complaint. Once they are served they have twenty days to respond by filing an Answer with the court and serving a copy on opposing counsel, if served personally, and thirty days if served by any other means other than personal service.

After the process server serves the Summons and Complaint they draft an Affidavit of Service and file that Affidavit with the court.

Request for Judicial Intervention

The next step in the process is the filing of a “Request for Judicial Intervention”, which is commonly referred to as an “RJI”. The purpose of the RJI is to advise the court the lender’s attorney wants to schedule a mandatory foreclosure settlement conference.foreclosure attorney on Long Island and New York City

Slowdown in Foreclosures on Long Island

In April of 2011, there were 540 foreclosure filings in Nassau and Suffolk counties on Long IslanSlowdown In Foreclosures On Long Islandd. This represented the lowest number of foreclosure lawsuits initiated during a month since December of 2008. It represented a drop of 21.5% from the level of foreclosure activity in March of 2011.

Foreclosures Moving Slowly Through the Courts

The courts in the State of New York have been inundated with foreclosure filings for the past few years. Governor Andrew Cuomo has recently stripped the budget of the court system of 174 million dollars. This has caused massive layoffs and cutbacks within the court system. At a time when there are huge back logs in foreclosure activities, there are less and less resources within the court system to deal with these foreclosures. It is estimated that it could take as long as three years to complete the foreclosure process for foreclosures initiated in the second half of 2011.

Lenders Reluctant to Foreclosure

Lenders have stated that it is an expensive procedure to litigate a long foreclosure matter. In the end, they can end up with a property that needs to be repaired and maintained. It can also take the lender a substantial period of time to sell the property.

Delays take place in the foreclosure process because lenders are allowing more time during the period between delinquency and foreclosure. They are waiting to see if loan modifications go through. They are waiting for short sales. There are judicial delays caused by the courts inability to process the huge amount of cases that are in foreclosure.

Do Delays Help or Hurt The Real Estate Market

The question is do delays help or hurt the market place. There is a considerable body of thought that now holds that the faster we move the foreclosures through the legal system, the faster we can eliminate the pain. They compare this to pulling off a band-aid one hair at a time or ripping the band-aid off all at once. Unfortunately, ripping the band-aid off all at once destroys many peoples’ lives and forces them out of their homes with no place else to go!

Aggressive Foreclosure Defense Lawyers

We can fight your foreclosure. We litigate predatory lending issues, defective foreclosure lawsuits, and defective mortgages. We attend foreclosure court conferences for our clients. We draft mortgage modifications and deal with mortgage modification programs that fail to meet our clients needs. We litigate foreclosure related bankruptcies, whether they’re a Chapter 7 bankruptcy or Chapter 13 bankruptcy. We also assist our clients in re-establishing credit after filing a bankruptcy. We can help stop your foreclosure from moving forward! Call us and we will provide you with a free consultation. We will discuss all of your foreclosure options. Feel free to come back to our foreclosure blog on a regular basis to read about real estate and foreclosure related issues.

Leo Nordine, the Foreclosure King

Leo Nordine, The Foreclosure KingLeo Nordine of California has been referred to “the king of foreclosures.” Leo was a real estate agent in California. He has allegedly closed more than 4,000 real estate transactions. It is claimed that he is involved in over 300 real estate transactions a year. All of these transactions involve foreclosures!

Recent Interview of Leo Nordine

In a recent interview, foreclosure king Leo Nordine was asked about when the real estate market will bottom out. In his response, he stated that he felt the market had already hit a soft bottom. He talked about the slowdown by the Federal Government of the real estate foreclosure process. He claimed the government was slowing down the process to avoid putting the country into a depression.

He was asked if it was a good time for individuals to buy homes. He suggested that, instead of buying a home, individuals should save up their cash for a rainy day. He stated that he felt real estate prices will stay flat for approximately ten years. He suggested only buying a house if you plan on living in it and enjoying it. He suggested it would not be a good investment. He felt that for the real estate market to recover, the economy as a whole must first recovery.

Nation of Renters

Leo suggested that in the future a greater portion of the population of the United States will be renters, and not owners, of real estate. He claimed that the government had encouraged the American dream of the ownership of a single family home. He suggested that families should dream of renting in the future.

How To Sell a House Today

When Leo was questioned as to how to sell a home in the current real estate market, he suggested to make it as empty as possible. The house should be clean, bright and, most importantly, priced realistically! He stated that if the house isn’t priced to sell, no one will buy it!

New York Foreclosure Lawyer

If your home is in foreclosure in the Metropolitan New York area, we can help you. Our law office has been providing foreclosure defense for our clients for more than twenty years. We litigate defective mortgages, predatory lending and defective foreclosure lawsuits. We make court appearances for our clients and attend foreclosure court conferences. We assist our clients with mortgage modifications and mortgage modification programs that fail to meet consumers needs.

We discuss foreclosure related bankruptcy filings. This filing can either be a Chapter 7 bankruptcy or a Chapter 13 bankruptcy. Upon filing either of these bankruptcies, the Federal Bankruptcy Court issues an automatic stay that stops foreclosure proceedings in their tracks.

Call us for a free consultation. We will discuss all of your foreclosure options. Thank you for visiting our foreclosure blog.

Foreclosure Defense in Valley Stream, Lynbrook, Baldwin, Malverne, Freeport, Oceanside, Long Beach, Elmont, Lakeview, West Hempstead, Hempstead, Merrick and Bellmore, New York

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