foreclosure – Page 3

The Rise of Non-Bank Mortgage Servicing Companies – Part II

October 15, 2015 by Elliot S. Schlissel

Servicing $10 Trillion Dollars of Mortgage Loans

Non-bank institutions which service mortgages have grown at an incredible rate in the past few years. The largest fifty non-bank mortgage servicing companies handled almost $10 trillion dollars in mortgage loans in 2014. Non-bank servicing organizations accounted for almost 30% of these loans last year. In 2010, they accounted for only 7% of these loans. Ocwen serviced nearly $400 billion dollars in loans in 2014, and NationStar Mortgage serviced more than $377 billion dollars in loans. This is 500% more than they serviced in 2010.

Large Employee Turnover

These non-bank institutions have large turnovers of their employees. It makes it extremely difficult for homeowners to reach the same individual at these institutions to deal with their problem. This can create a gut wrenching situation for the homeowners who are trying to straighten out administrative problems caused by the servicing agencies.

Non-bank servicing companies are much harder to work with than traditional financial institutions. They are not as well equipped or well versed in issues concerning loss mitigation.

In 2014, the Consumer Finance Protection Bureau imposed new mortgage servicing requirements on both banks and non-bank servicing mortgage companies. Under these new rules, all mortgage servicing companies are supposed to create a “single point of contact”. This single point of contact is designed to help homeowners with troubled loans.

Approximately a year ago, the New York Department of Financial Services blocked a transfer of almost $3 billion dollars in mortgage servicing contracts from Wells Fargo Bank to Ocwen. In December 2014, Ocwen reached a $150 million dollar settlement with the New York Department of Financial Services concerning abuses and conflicts of interest. Hopefully in 2015, this New York agency will be able to regulate these non-bank servicing institutions and/or motivate them to provide higher quality levels of service to the tens of thousands of beleaguered mortgage holders who are forced to deal with them.

Elliot S. Schlissel is a foreclosure attorney. He helps homeowners with homes which have gone into or are going into foreclosure. He is the author of more than 400 articles on his blog concerning foreclosure defense.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: defective foreclosure lawsuits, defective mortgages, foreclosure, foreclosure attorney, mortgage servicing companies, New York foreclosure attorneys

Statutes of Limitations Defenses To Foreclosure Lawsuits

October 6, 2015 by Elliot S. Schlissel

foreclosure defense for homeowners Is it possible to stop paying your mortgage, and live in your home for many years, and stop the bank in its tracks from forcing you to make payments to them or successfully foreclosing on your home? The answer to this question is yes! If your bank fails to sue you, in the State of New York, for a period of six years from the time they accelerated the mortgage, you have a complete legal defense to the foreclosure lawsuit. This defense is known as the statute of limitations. If you plead this defense in your Answer to the Summons and Complaint you can take action to have the bank’s foreclosure lawsuit dismissed!

Defense Available to Thousands of Homeowners

It is estimated there are thousands of homeowners who have not made mortgage payments in the past six years in the State of New York, who have this defense available to them when they are sued in foreclosure. There are a variety of reasons that have caused the banks to delay in bringing foreclosure lawsuits. The federal government has made 69 separate changes to its mortgage modification programs. This has forced lenders, on numerous occasions, to withdraw previous offers to homeowners and extend new terms. This ties the house up in a pre-foreclosure situation for long periods of time.

In addition, many banks have poor practices with regard to maintaining their records concerning mortgages on homes.

Seven Million Foreclosures In America

It is estimated there have been approximately seven million homes foreclosed upon in America since 2006. In addition, there are approximately another one million homes which will go into foreclosure at some time in the next few years.

I personally see cases where there are valid statute of limitations defenses which can be plead in the Answers for my clients. In many of the cases which our office handles the lenders themselves are to blame for a case not moving forward in a foreclosure proceeding for six years.

Owning a Home For Free

Recently, Judge Michael B. Kaplan sitting in a United States Bankruptcy Court in Trenton, New Jersey, wrote an opinion reflecting about the foreclosure crisis. This judge had previously written “no one gets a free house.” In his recent decision Judge Kaplan stated “with the proper measure of disquiet, and chagrin, this court now must retreat from this position.”

Conclusion

One of the first things every foreclosure defense lawyer must look for when a client comes to their office whose home is in foreclosure, is whether a statute of limitations defense can be plead in their Answer.

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

The Lack of Standing Defense in Foreclosure Lawsuits – Part I

September 18, 2015 by Elliot S. Schlissel

foreclosure help for homeowners When a financial institution brings a foreclosure lawsuit, they have a legal obligation to prove to the court they are the rightful holder of the mortgage and note they are suing on. Mortgages and notes are standardized documents. In most situations a variety of financial institutions and servicing organizations will handle the mortgage and note prior to the initiation of the foreclosure lawsuit. The financial institution who in the end brings the foreclosure lawsuit must show each of the assignments, starting with the financial institution who made the loan, was properly executed and the requisite documents were filed in the County Clerk’s office. Over and above that, the financial institution who brings the foreclosure lawsuit must have in its hands at the time the lawsuit is initiated, the original mortgage and note.

Bank Assignments

Sometimes mortgages have traveled through many different banks and servicers’ hands before a foreclosure lawsuit is brought against the homeowners. The proof of the ownership by the financial institution who brings the lawsuit revolves around the chain of assignments from one previous owner to the next. Sometimes the actual paperwork on the assignments are never completed or are not correctly done. The documentation of the assignments may only exist within the computers of the financial institutions. That is insufficient. The party bringing the foreclosure lawsuit must have the original note and mortgage and be able to show that every step of the way, between the original bank and the bank bringing the foreclosure, involved a proper assignment which was properly filed and executed by the appropriate parties.

Homeowners have been successful in dozens of lawsuits in the Metropolitan New York area in showing the financial institution bringing the foreclosure lawsuit was not a proper party due to a defect in the assignments. This causes the lawsuit to be dismissed! The theory behind the assignments is the party bringing the lawsuit has standing to sue under the terms of a contract (the mortgage and note are contracts). The initiating party in the lawsuit must have a documented ownership interest in the contract. In addition, the party having the ownership interest in the contract must have suffered some damages (the non-payment of the mortgage).

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

Defense to Foreclosure Lawsuit: The Mortgage Company Made a Mistake

September 12, 2015 by Elliot S. Schlissel

Violations of Truth In Lending Law

The Truth in Lending Law (hereinafter referred to as “TILA”) is usually violated by a lender failing to provide the appropriate disclosure to the homeowner at the time of closing. The financial institution must specifically disclose the annual percentage rate of the loan. In addition they must disclose the finance charges, the amount financed, the total payments, the payment schedule and many other items. These disclosures are supposed to be included in the document referred to as the Truth in Lending Disclosure Statement. The lender is responsible for all of the calculations contained in the Truth in Lending Disclosure Statement being accurate.

TILA and HOEPA Violations Apply To All Subsequent Banks
Who Will Receive Assignments From The Original Lender

The actual violations of TILA and the Home Ownership and Protection Law (hereinafter referred to as “HOEPA”) are caused by the original lender not complying with these statutes. Thereafter if the loan is assigned to subsequent financial institutions these lenders are held accountable for the violations of the original bank. The only way subsequent financial institutions can avoid liability under these statutes is if they can show a reasonable person exercising ordinary due diligence would not have been able to determine the violation or improper practice pursuant to TILA or HOEPA.

Rescinding the Loan

The method in which you rescind the loan is to give written notice to the lender you are exercising your right of rescission. If you are successful in your request to rescind the loan, the financial institution must return everything you paid to them except for the payments of the loan principle. In addition, you must return the portion of the loan principle that has not yet been repaid. When you rescind the loan you can eliminate being responsible for the payment of the loan under its terms but you still can’t keep the loan proceeds. The reality is when you rescind the loan you must refinance to repay the portion of the principal you received. However, rescission of a loan will always stop a foreclosure proceeding in its tracks!

It should be noted recently the United States Supreme Court rendered a decision in the matter of Jesinoski v. Countrywide Home Loans that you don’t have to sue within the three year rescission period for rescission. You only have to provide written notice to the lender to preserve all of your rights during that three year period.

Foreclosure Defense Lawyer

If you seek to hire a lawyer to represent you in a foreclosure defense, one of the things he or she should be familiar with are the regulations involving TILA and HOEPA. The lawyer should know how these laws can be asserted by you in a foreclosure proceeding as a defense and how you can obtain damages as a result of violations of these laws. An excellent publication which can provide you with more ideas concerning the fighting of foreclosure lawsuits is Foreclosures published by the National Consumer Law Center.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: defective foreclosure lawsuits, foreclosure, foreclosure crisis, foreclosure defense attorneys, foreclosure defense lawyers, foreclosure proceedings, real estate

What Happens When You Fall Behind On Your Mortgage?

August 8, 2015 by Elliot S. Schlissel

To watch today’s video blog, please click on the link below:

http://youtu.be/jZT2uG0JdTI

Elliot Schlissel is a foreclosure defense lawyer helping homeowners stay in their homes throughout the Metropolitan New York area. He and his associates can be reached for consultation at 516-561-6645 or 718-350-2802 or send an email to schlissel.law@att.net.

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

Foreclosure Dismissed, Bank Fails To Show It Was The Holder Of The Note

July 18, 2015 by Elliot S. Schlissel

Justice Francois Rivera, sitting in the Real Property Part in Supreme Court, Kings County, recently dismissed a foreclosure case brought by Loancare against Mr. Coleman.

The foreclosure lawsuit claimed Coleman had failed to make payments on the note and mortgage. It further claimed he took no action to cure the default. Coleman submitted an Answer which contained seventeen affirmative defenses. One of the affirmative defenses was that the bank lacked standing to bring this lawsuit.

Justice Rivera noted in his decision, before commencing a foreclosure lawsuit a plaintiff must have a legal or an equitable interest in the mortgage.

Transfer of the Mortgage

Coleman initially had given a mortgage to Lend America. Lend America executed and delivered the mortgage and note to Mortgage Electronic Registration Systems, Inc., (hereinafter referred to as “MERS”) as Lend America’s nominee.

When Loancare brought the lawsuit, they did not claim or prove that Lend America delivered the note to MERS. Therefore MERS was never the holder of the note. Since they didn’t have the note to begin with, they couldn’t assign it! Since MERS couldn’t assign it to Loancare, Loancare never became the holder of the note pursuant to a written assignment prior to initiating the foreclosure lawsuit. In addition, Justice Rivera pointed out in his decision Loancare did not allege the facts and circumstances as to who and which entity physically delivered the note.

Justice Rivera therefore decided Loancare did not establish a prima facie case that it was the holder and/or assignee of the note and mortgage. Justice Rivera therefore dismissed the lawsuit based on the fact the plaintiff had no standing to bring this foreclosure proceeding.

Conclusion

Submitting an appropriate Answer with numerous affirmative defenses and especially alleging lack of standing, is very important when responding to a foreclosure lawsuit. If Coleman had failed to allege lack of standing in his Answer, he would have waived this affirmative defense and Loancare would have been successful in obtaining a judgment of foreclosure and selling Coleman’s home.

Elliot S. Schlissel is a foreclosure attorney who helps homeowners fight foreclosure lawsuits and stay in their home.

Filed Under: Current Events, Foreclosure, Foreclosure Defense Tagged With: defective foreclosure lawsuits, foreclosure, foreclosure defense attorneys, New York foreclosure defense lawyers

Deeds In Lieu of Foreclosure: An Imperfect Remedy

July 14, 2015 by Elliot S. Schlissel

Deeds in lieu of foreclosure are used by many attorneys and homeowners to short circuit the foreclosure process. I rarely suggest to a client to execute a deed in lieu of foreclosure. What a deed in lieu of foreclosure accomplishes is it allows the bank to take the home back quickly. It often leaves the homeowner with no credit, no assets, and no place to live! The reason given for executing a deed in lieu of foreclosure is it will eliminate a deficiency judgment.

Deficiency Judgment

Here is an example of what a deficiency judgment is: let’s assume there is a home worth $300,000, and a mortgage on the home in amount of $400,000. The house sells for $250,000 to a speculator at a foreclosure sale. There is a $150,000 deficiency which is still owed by the borrower. The deed in lieu of foreclosure prevents the bank from getting a deficiency judgment in the amount of $150,000.

This is the selling point used by many attorneys. It is usually a false selling point. Banks, generally speaking, do not pursue deficiency judgments in the Metropolitan New York area if the homeowner has no assets. Even if the bank desires to move forward for a deficiency judgment, the homeowner can simply file a Chapter 7 bankruptcy and eliminate the debt.

Fighting the Foreclosure Proceeding

When the homeowner decides to hire an attorney and fight the foreclosure proceeding, both the homeowner and his or her family will probably spend the next three or four years living in their home and not facing the problems of finding a place to live without credit and financial resources.

Deeds in Lieu of Foreclosure Won’t Always Work

A deed in lieu of foreclosure is usually only accepted by financial institutions where there is no equity in the property, and there are no liens or other mortgages attached to the property. In these types of cases, most banks will agree to a deed in lieu of foreclosure transaction.

If there is a second mortgage, monetary judgments on the property, mechanics’ liens, or other types of liens on the property, the bank will generally not agree to a deed in lieu of foreclosure transaction. In these situations they want the foreclosure sale to go forward. At the foreclosure sale, the second mortgage, the mechanics’ liens, and the judgments will be eliminated. The bank will obtain clear title to the property and not have to deal with the nuisances involved with other title impediments. In situations where there are second mortgages, mechanics’ liens, or other judgments or liens on the property, most banks will simply want to continue with the foreclosure process to obtain clear title.

Elliot Schlissel is a foreclosure defense lawyer helping homeowners stay in their homes throughout the Metropolitan New York area.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: deed in lieu of foreclosure, defective mortgages, foreclosure, foreclosure attorney, foreclosure defense lawyers, foreclosure proceedings, New York foreclosure defense

The Foreclosure Process: The Initial Steps

June 11, 2015 by Elliot S. Schlissel

The first step in a foreclosure proceeding is the bank sending the homeowner a letter accelerating the mortgage. The acceleration letter advises the homeowner the financial institution (lender) will call in the entire balance of the mortgage, which represents the total amount due, unless the homeowner becomes up to date on his or her mortgage payments by a specified date. Most banks send an acceleration letter after the homeowner falls approximately three months behind on their mortgage payments. However, there is no specific rule which requires a bank to send an acceleration letter when the homeowner is three months behind.

Falling Behind On Your Mortgage Payments

The homeowner technically defaults on the payment of the loan on their home when they become one month late on their mortgage payments. However, as indicated earlier in this article, acceleration letters are almost never sent out prior to the homeowner being three months behind on their mortgage.

Ninety Day Pre-Foreclosure Filing Notice

New York State has a statute which requires the financial institution holding the mortgage to send out a notice a minimum of ninety days before they initiate a foreclosure legal action by filing a Summons and Complaint in the County Clerk’s office of the County in which the home is located. There are very specific rules and notice requirements concerning the ninety day pre-foreclosure filing notice. This notice also must list at least five not for profit organizations which can provide information or counseling to homeowners with regard to the problems they are having in making their mortgage payments.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: foreclosure, foreclosure attorney, foreclosure defense lawyers, foreclosure proceedings, New York foreclosure defense lawyers

“In Foreclosure!” What Does This Mean?

May 27, 2015 by Elliot S. Schlissel

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.

Filed Under: Foreclosure, Foreclosure Defense Tagged With: foreclosure, foreclosure defense attorneys, foreclosure defense lawyers, real estate

Monetary Damages In a Countersuit Against the Bank

April 4, 2015 by Elliot S. Schlissel

Please click on the link below to watch today’s video blog:

http://youtu.be/ja5dxpyWpxg

Elliot S. Schlissel is a foreclosure attorney. He and his associates have been helping homeowners stay in their homes for more than 45 years. He also helps his clients obtain mortgage modifications. Elliot can be reached for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.

Filed Under: Foreclosure, Foreclosure Defense, Mortgage Modification Tagged With: Counterclaims, defective foreclosure lawsuits, foreclosure, foreclosure defense lawyers, foreclosure proceedings, Monetary damages, New York foreclosure attorneys

The Rise of Non-Bank Mortgage Servicing Companies – Part II

Statutes of Limitations Defenses To Foreclosure Lawsuits

The Lack of Standing Defense in Foreclosure Lawsuits – Part I

Defense to Foreclosure Lawsuit: The Mortgage Company Made a Mistake

What Happens When You Fall Behind On Your Mortgage?

Foreclosure Dismissed, Bank Fails To Show It Was The Holder Of The Note

Deeds In Lieu of Foreclosure: An Imperfect Remedy

The Foreclosure Process: The Initial Steps

“In Foreclosure!” What Does This Mean?

Monetary Damages In a Countersuit Against the Bank

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