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Homeowners Motions in Foreclosure Lawsuits

Homeowners Motions in Foreclosure LawsuitsA homeowner can make a motion to dismiss the bank’s lawsuit in a foreclosure case based on a jurisdictional basis or the fact that there are meritorious defenses to the complaint submitted by the bank. Examples of a basis for dismissing the lawsuit brought by the financial institution are: lack of standing, failure to obtain proper service on the defendants, violation of the statute of limitations, fraud in the inducement and various other defenses and affirmative defenses available to homeowners.

Cost of Foreclosure Litigation

Banks and financial institutions are worth billions of dollars. Homeowners, who work for a living, have limited financial assets to engage in sophisticated litigation with financial institutions. The financial institutions bringing the foreclosure lawsuit are spending money belonging to their shareholders. On the other side of the situation, the homeowner is putting his hands in his own pocket to fight the foreclosure lawsuit. It is therefore important for the attorneys for the homeowners to maximize the impact of their legal action and litigate the matter in the most cost efficient means. It should be pointed out, in my experience, bank’s are often prepared to spend more than $25,000.00 bringing motions to obtain a foreclosure judgment against homeowners to cause their home to be sold. This puts a heavy financial burden on the homeowner to defend against these motions.

Conclusion

There is a process during the litigation of a foreclosure lawsuit where each party can make motions asking the Judge prior to a trial to grant them relief. The bank asks for relief in a motion for summary judgment and/or judgment of foreclosure and sale and the homeowner usually brings a motion to dismiss the litigation. If you are facing foreclosure, the best way to deal with all of the issues and problems is to hire an experienced dedicated foreclosure attorney.

schlissel-headshotElliot S. Schlisel is the managing partner of Schlissel DeCorpo LLP. He has been representing homeowners in foreclosure lawsuits, helping them obtain mortgage modifications and dealing with numerous other problems related to improper conduct of financial institutions for more than 30 years. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Litigation Strategies in Foreclosure Cases

Litigation Strategies in Foreclosure CasesThe first thing homeowners need to do in defending a foreclosure case is to put a written response in to the summons and complaint. This written response is called an answer. This avoids what is referred to as a default in the lawsuit. A default amounts to an admission of the allegations made by the bank in their lawsuit are correct. A homeowner can assert defenses, affirmative defenses and counter lawsuits in an answer to the summons and complaint. By contesting the lawsuit the foreclosure case will move very slowly through the courts. The more time the homeowners are in their home the more likely they will be able to come up with a final resolution, whether it be a mortgage modification, a forbearance agreement or another means of keeping their family in their home.

The Answer to a Foreclosure Lawsuit

When a homeowner is served in a foreclosure lawsuit depending upon the type of service he or she receives they have either 20 days or 30 days to respond. The response must be in writing. Affirmative defenses can be alleged in the answer to protect the client and to create the legal grounds for having the case dismissed. In addition, a counter lawsuit can be brought within the confines of the answer asking the court to dismiss the lawsuit completely because of some inappropriate action by the financial institution or the failure of the financial institution to comply with some federal, state or local ordinance.

Defending The Foreclosure Case

Financial institutions are very heavily regulated, they must comply with state, local and federal laws with regard to all aspects of the lending process, the mortgage application process and the handling of a foreclosure lawsuit. Affirmative defenses such as lack of standing, redlining, violation of Truth and Lending Laws, predatory lending, “duel tracking”, failure to provide necessary documentation, failure to provide adequate notice, failure to provide proper service, fraud and issues related to loan modifications can be raised. A counter lawsuit brought against the bank can also seek financial damages from the financial institution.

The facts and circumstances of each homeowner’s situation is unique. Should you find yourself facing a foreclosure situation, the first step in defending your home, protecting your rights and keeping your family in your home is to retain a qualified experienced foreclosure lawyer.

schlissel-headshotElliot S. Schlisel is the managing partner of Schlissel DeCorpo LLP. For more than 30 years he has been representing homeowners throughout the Metropolitan New York area. He helps homeowners obtain mortgage modifications. In addition he fights foreclosure lawsuits. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

How to Avoid Foreclosure of your Home

The Bank’s Motion in Foreclosure LawsuitsFinancial circumstances in families’ lives can change. These changes sometimes are of a negative manner. If the family doesn’t make their mortgage payments they face the risk of losing their home and being dispossessed. When a homeowner receives a notice they are in default on their mortgage, or a summons and complaint in a foreclosure lawsuit, action should be taken by the homeowners to deal with the situation. Acting like an ostrich and putting your head in the sand and hoping this goes away simply won’t work!

Hire an Attorney

If you are facing future foreclosure or a foreclosure lawsuit has been started against you, the best way to deal with this is to hire an experienced foreclosure lawyer. The earlier in the proceeding you hire a lawyer the better your chances of success will be.

Loan Modifications

Loan Modifications are one of the ways of dealing with a foreclosure lawsuit and the threat of losing one’s home. Mortgage modifications help you modify your current mortgage arrangement. This can eliminate the threat of losing your home. This may enable you to become current on your mortgage payments.

schlissel-headshotThe law firm of Schlissel DeCorpo LLP has been helping homeowners keep their homes for more than 30 years. Our office can offer you advice and guidance with the appropriate action to take regarding a foreclosure lawsuit and/or obtaining a mortgage modification. We can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

The Bank’s Motion in Foreclosure Lawsuits

The Bank’s Motion in Foreclosure LawsuitsA foreclosure lawsuit is initiated by the financial institution’s attorneys serving the homeowner with the summons and complaint. Both the homeowner and financial institution can engage in the discovery process where they ask for the documents, records and other information related to the mortgage and foreclosure lawsuit to be provided to them.

Motion Practice

Attorneys for financial institutions are under pressure from the banks to move their cases through the courts as quickly as possible. For this reason if a homeowner submits an answer to the summons and complaint the financial institution will usually make a motion for summary judgment.

The Summary Judgment Motion

A motion for summary judgment alleges there are no questions of fact, all the issues in the case can be presented on paper and there are no real triable issues of fact. Based on this motion, bank’s attorney will allege the court should grant the financial institution a judgment of foreclosure dismissing the defendant’s answer and affirmative defenses. The attorneys will be putting a lot of time and effort in presenting a well documented and well set up motion for summary judgment which shows that the defenses and affirmative defenses by the homeowner are without merit. The plaintiff’s motion papers are at times 7 or 8 inches thick with regard the summary judgment motion.

The making of a summary judgment motion by the plaintiff’s attorneys causes the defendant to fight this motion by submitting opposing papers and if appropriate submitting a cross-motion seeking the case be dismissed.

Motion for Foreclosure and Sale

If the financial institution’s attorneys are successful with regard to having the court grant their motion for summary judgment, they will thereafter bring a second motion for foreclosure and sale. In the motion for foreclosure and sale the court will usually recognize the accounting of the referee as being valid and and correct. This is the last court application necessary before the referee can schedule the sale of the house.

schlissel-headshotElliot S. Schlisel is the managing partner of Schlissel DeCorpo LLP. He has been representing homeowners in foreclosure lawsuits, helping them obtain mortgage modifications and dealing with numerous other problems related to improper conduct of financial institutions for more than 30 years. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Wells Fargo Ordered to Pay $575 Million Regarding Unfair Trade Practices

Unfair Trade PracticesIn a recent case the Attorney Generals for all 50 States in the United States and the District of Columbia reached a settlement with Wells Fargo Bank. The settlement involves a variety of consumer protection claims and unfair trade practices utilized by Wells Fargo Bank. The settlement was in the amount of $575,000,000.

Wells Fargo Acted Improperly

Wells Fargo agreed to this settlement based on numerous improper actions it took and laws it violated. Among the many improper actions and laws it violated Wells Fargo charged customers for mortgage rate lock extension fees.

Wells Fargo has acknowledged millions of deposits, credit card and other accounts were created without the consumer’s permission. Wells Fargo was involved in the transfer of funds without consumer authorization. Wells Fargo acknowledged these improper actions took place between 2002 and 2017.

Texas Attorney General Ken Paxton stated “the settlement held Wells Fargo accountable for its widespread victimization of its customers through unfair and deceptive trade practices.”

Wells Fargo Acknowledges Problems

Wells Fargo’s Chief Executive Officer Tim Sloan stated: “this agreement disclosed our serious commitment to making things right in regard to past issues as we worked to build a better bank.”

schlissel-headshotElliot S. Schlissel, Esq. is the managing partner of Schlissel DeCorpo LLP. Elliot is a foreclosure attorney. He represents homeowners with regard to mortgage modifications and defending foreclosure lawsuits throughout the Metropolitan New York area. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Foreclosure Lawsuit Dismissed The Statute of Limitations Had Expired

Barred by Statute of LimitationsIn the case before Justice Peter Mayer who sits in Supreme Court in Suffolk County, Rokoetz had executed a note and mortgage. This note and mortgage secured a lien against his home. Rokoetz defaulted in making payments on this mortgage. CS First Boston brought a foreclosure lawsuit in Suffolk County. They were granted an order of reference to sell the property and the matter was thereafter settled under a written agreement in 2007.

The Second Foreclosure Lawsuit

In 2017, 10 years after the original lawsuit had been started, the plaintiff brought a second foreclosure lawsuit against Rokoetz. Rokoetz moved for dismissal of the foreclosure lawsuit claiming the action was barred by the 6 year statute of limitations. Counsel for the financial institution claimed CS First Boston lacked standing to commence the 2005 foreclosure lawsuit as the mortgage was not assigned to it until after the commencement of the lawsuit. They therefore claimed they lacked authority to accelerate the loan. They claimed the loan was never properly accelerated until the plaintiff did so in the 2017 lawsuit.

The Loan was Accelerated

Justice Mayer found that the CP Boston’s claims were not valid. He ruled that CS First Boston’s 2005 complaint constituted an acceleration of the loan and the 2007 agreement did not constitute an unequivocal affirmative notice to Rokoetz that the acceleration had been revoked. Justice Mayer ruled Rokoetz had established the lawsuit was commenced outside the 6 year statute of limitations and was therefore untimely and needed to be dismissed.

schlissel-headshotElliot S. Schlisel is the managing partner of Schlissel DeCorpo LLP. He has been litigating foreclosure cases throughout the Metropolitan New York area for more than 35 years. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Homeowner Failed to Assert Affirmative Defenses: Bank Granted Judgment of Foreclosure and Sale

Foreclosure and Sale

In a matter before Supreme Court Justice Howard Heckman, who sits in Suffolk County, a bank brought a foreclosure lawsuit against Bourie. The bank claimed in the lawsuit Bourie defaulted in making his mortgage payments. The bank eventually brought a motion for summary judgment asking that the answers submitted by Bourie be stricken. In response to the bank’s summary judgment motion, Bourie argued the bank failed to prove service of the Summons and Complaint in compliance with the Fair Debt Collection Practices Act.

“Fair Debt Collection Practices Act”

The bank in its opposing papers pointed out Bourie had failed to assert the affirmative defense of the bank’s alleged failure to serve a mortgage default notice. Justice Heckman ruled Bourie’s failure to submit an affirmative defense of the bank’s failure to serve him with a notice of default acted as a waiver of his rights to assert compliance in opposition to the bank’s summary judgment motion. Justice Heckman also ruled Bourie waived his Fair Debt Collection Practices Act defense by his failure to assert it as an affirmative defense in his answer. The judge granted the bank’s summary judgment motion and allowed them to move forward with the sale of Bourie’s home.

Conclusion

When the bank initiates a foreclosure lawsuit, a homeowner has either 20 days or 30 days to submit a written answer to the bank’s lawsuit. In the answer the homeowner must allege all of his defenses and affirmative defenses to the lawsuit. If the homeowner fails to list a defense or affirmative defense to the lawsuit, it is considered that he has waived his right to utilize this defense or affirmative defense in his case.

schlissel-headshot Elliot S. Schlissel is the managing partner of Schlissel DeCorpo LLP. The firm has been representing homeowners throughout the Metropolitan New York area regarding foreclosure matters for more than 30 years. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Representing Yourself in a Foreclosure

Representing Yourself

My office has been representing homeowners in foreclosure cases for more than 35 years. Often homeowners come to me and they tell me they have been representing themselves in a foreclosure. When I ask them how they are doling, they say well we were doing fine. This means the homeowner has hit a brick wall. If you need an operation would you engage in surgery on yourself? No homeowner should ever represent themselves in a foreclosure. At a minimum they will be greatly outmatched. Financial institutions have unlimited money to hire lawyers. Lawyers who engage in foreclosure practice sue hundreds of homeowners in multiple courts throughout the Metropolitan New York area. They have extensive experience in litigating foreclosure lawsuits.

The Stubborn Homeowner

In spite of what I have indicated above, our office sees quite a few homeowners who have been litigating their own cases. A large majority have done a poor job. However, occasionally I run into bright, articulate homeowners who are actually doing a good job in representing themselves in the foreclosure lawsuit. For those homeowners I ask them several questions. How to do you plan on questioning yourself if you are on the witness stand? Can you explain to me how you can establish the foundation for presenting evidence to the court? When I ask these questions the homeowners are usually dumbfounded.

Foreclosure Defense Lawyers

Most lawyers are not familiar with the process of defending foreclosure lawsuits. The defense to a foreclosure lawsuit involves specialized pleadings. The best defense to a foreclosure case would be to prove the homeowner has made the payments. However, this is almost never the case. The defenses to foreclosure lawsuits usually deal with sophisticated statutory defenses. Truth and Lending Laws violations, violations of state and federal banking laws, failure to provide proper notice, failure to serve a summons and complaint in conformity with statutory requirements, failure to act in good faith with regard to foreclosure mortgage modification conferences, failure to provide the appropriate documents at the closing and the list of legal defenses goes on and on.

Hire an Experienced Foreclosure Defense Lawyer

Only attorneys with intimate knowledge of the underwriting process of mortgage loans, the regulatory requirements financial institutions need to comply with and knowledge of the ins and outs of foreclosure cases can provide a specialized level of representation for homeowners. The banks hire experienced attorneys to bring their foreclosure actions. Homeowners should not rely on just any attorney to represent them. They should only hire experienced foreclosure defense lawyers with a track record of successfully representing homeowners.

Before hiring a foreclosure defense law firm ask them how many articles he or she has written regarding foreclosure cases. Our law office has been diligently litigating foreclosure lawsuits and helping homeowners obtain mortgage modifications for more than 30 years. We have kept hundreds of homeowners in their homes. We are available for free consultations. We pride ourselves in keeping our clients in their homes. We can be reached for a free consultation at our offices in Nassau, Suffolk and Queens Counties at: 516-561-6645, 718-350-2802 or 631-319-8262. You can also e-mail us at Elliot@sdnylaw.com.

Foreclosure Action Dismissed: Bank Had No Standing

Foreclosure Action Dismissed: Bank Had No StandingIn a case in Orange County before Justice Maria Vasquez-Doles a plaintiff moved for summary judgment claiming there were no questions of fact and that a trial was not necessary in this foreclosure case. They requested an appointment of a referee to compute the amount which was owed. In addition, they wanted a default judgment against non-appearing defendants. The original note and mortgage was between Home Funds Direct and the homeowners. It was claimed the homeowners defaulted by not making timely mortgage payments. US Bank Trust moved for summary judgment. The defendants argued US Bank Trust did not have standing to bring the lawsuit. They claimed MIRS was never authorized by the original lender to assign the note and mortgage to US Bank Trust. The defendants claimed the note was in the possession of “a custodian Wells Fargo Bank” not US Bank Trust.

The Judge’s Decision

Justice Vasquez-Doles found US Bank Trust had not met its burden of proof to show it had standing to bring the foreclosure lawsuit. She found they failed to establish a prima facie case that US Bank Trust was in possession of the note because Wells Fargo continued to possess the original note. She also found US Bank Trust could establish the standing by showing the note was assigned to them, but they failed to do this. She also pointed out there is no endorsement to MIRS on the note giving it authority to assign the note. The evidence presented in the case was there was no evidence indicating MIRS had a right to assign the note. MIRS also could not transfer something it did not have possession of. Although US Bank Trust could have established physical delivery of the note to them, they did not undertake to do this in this case. Justice Vasquez-Doles therefore dismissed the case.

schlissel-headshotElliot S. Schlissel is a foreclosure lawyer representing homeowners throughout the Metropolitan New York area for more than 35 years. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Reverse Mortgage Foreclosure Issues

Mortgage-Foreclosure-IssuesReverse mortgages are made to homeowners aged 62 or older. They allow the homeowners to access the equity in their home to pay their bills while allowing them to continue to live in their homes. In situations involving reverse mortgages the homeowner no longer makes monthly payments. The amount owed to the financial institution gets charged against the homeowner’s home equity and these loans are usually insured by the Federal Housing Administration. The reverse mortgage is not due and payable until the homeowner’s death.

Taxes and Insurance on the Home

Although the homeowner does not have to make mortgage payments, the homeowner is usually responsible for paying the property taxes, school taxes and maintaining their homeowner’s insurance. The failure by homeowners to pay these expenses can cause the financial institution that provided the reverse mortgage to bring a foreclosure lawsuit based on the homeowner’s non-compliance with the conditions involved in the mortgage.

Reverse Mortgage Foreclosure Default

New legislation requires reverse mortgage defaults now have to receive a 90 day preforeclosure notice under the Real Property Actions and Proceedings Law Section 1304. The amendment to this law causes financial institutions to participate in mandatory settlement conferences with regard to working out alternatives to foreclosing on the home regarding reverse mortgages.

The new reverse mortgage law indicates a list of the items that can trigger a reverse mortgage foreclosure. These include:

  • failure to include a required certificate of occupancy on an annual basis
  • death of the named borrower
  • failure to pay real property taxes
  • failure to maintain homeowner’s insurance
  • failure to pay water bills and sewer bills
  • failure to make required repairs
  • failure to occupy the home as a principal place of residence

Conclusion

This new legislation provides homeowners who have reverse mortgages many of the same protections homeowners who have conventional mortgages have. In addition, it provides them with notice as to any of the possible items which could cause their home to go into foreclosure.

schlissel-headshotElliot S. Schlissel is a foreclosure lawyer representing homeowners throughout the Metropolitan New York area for more than 35 years. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

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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