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Mortgage Modifications

Mortgage ModificationsAs 2008 came to an end the stock market took a plunge. The economy in the United States seemed to have slowed down. This has caused more homeowners to fall behind on making their mortgage payments. When a homeowner cannot make their payments under their mortgage affirmative action can be taken to deal with the situation prior to the home going into foreclosure. One of the better actions a homeowner can take is to apply for a mortgage modification. Since 2008 millions of homeowners in the United States have applied for mortgage modification. A mortgage loan modification can be the answer to homeowners’ financial issues in many situations.

The Modification

A loan modification basically seeks to change the terms of the original loan in a manner that makes it easier, less expensive and more convenient for the homeowners to make their mortgage payments. The granting of a loan modification by the lending institution may stop the home from going into foreclosure and being lost. If the bank approves the mortgage modification, there is usually a period of 3 months to 6 months when the homeowners receives a temporary modification. If they make their payments on time they are usually offered a permanent loan modification.

schlissel-headshotElliot S. Schlissel, Esq. is a foreclosure attorney. He helps homeowners obtain mortgage modifications and fights foreclosure lawsuits. He has been helping homeowners keep their homes throughout the Metropolitan New York area for more than 3 decades. He can be reached at 800-344-6431 or e-mailed at: Elliot@sdnylaw.com for a consultation. If you have a problem with your mortgage you should contact Elliot for a free consultation.

Homeowner’s Proceeding to Cancel Her Mortgage And Remove it as a Lien on Her Property was Granted

homeowner’s-proceedingIn a recent case before Justice Salvatore Modica, who sits in a real estate Supreme Court part, in Queens County, Persaud brought a lawsuit under Real Property Actions and Proceedings Law Section 1501(4) to cancel a mortgage on his home. In this proceeding Persaud moved for summary judgment. He asked that the mortgage on his home be extinguished and he be discharged from all obligations under the underlying promissory note executed in connection with this mortgage.

Motion Granted

Justice Modica granted Persaud’s motion. He found that she met her prima fascie obligation of showing entitlement to a judgment. Persaud had established the underlying foreclosure action by US Bank had been originally commenced in December 2009 and in March of 2011 the foreclosure lawsuit was dismissed. A second foreclosure lawsuit was commenced in 2017. This foreclosure lawsuit was barred by the 6 year statute of limitations.

In Persaud’s lawsuit against US Bank under Real Property Actions and Proceedings Law Section 1501(4), US Bank was unable to dispute Persaud’s showing there was no genuine issue of fact with regard to the 6 year statute of limitations having expired. Persaud was entitled to summary judgment. Under Real Property Actions and Proceedings Law Section 1501(4), a homeowner is entitled to having a mortgage cancelled as a lien on his or her property if the applicable statute of limitations regarding commencement of a suit has expired. In this case more than 6 years has passed since Persaud had defaulted on making payments on her mortgage. Therefore, US Bank did not have the right to bring another foreclosure action against Persaud. Justice Modica granted Persaud’s motion to cancel, discharge and remove the mortgage as a lien on her property.

Conclusion

US Bank and their attorneys failed to follow the law and as a result Persaud ended up with a free house!

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.

Sue the Mortgage Loan Servicing Company

Loan-Servicing-Company

Loan servicing companies can be sued. Loan servicing companies can make errors that have a negative impact on mortgage holders. Loan servicing companies can inaccurately calculate the amount due and owing by the homeowners. Sometimes they do not properly review mortgage modifications submitted by the homeowners. Upon request sometimes they provide inaccurate loan reinstatement information.

Good Faith

Mortgage holders are supposed to act in good faith. New York Civil Practice Law and Rules Section 8408 defines what is considered “bad faith” by a mortgage company.

Loan Servicing Companies

Loan servicing companies often hire inexperienced poorly paid individuals to act as their customer service representatives concerning the submission of mortgage modification applications. Sometimes they do not appropriately train their personnel with regard to the issues faced by homeowners submitting mortgage modification applications.

The process of submitting a mortgage modification usually involves the submission of information to the loan servicing company. Their customer service representatives therefore input the data into a computer program called an algarhythm. The algarhythm actually determines whether the homeowner qualifies for a mortgage modification. If the data is not properly put into the computer program the decision to deny a homeowner a mortgage modification can be based on an error made by the data processing person who inputed the data.

Foreclosure Defense Attorneys

Foreclosure attorneys experienced with the mortgage modification process are often able to help homeowners who have in the past had problems obtaining mortgage modifications.

schlissel-headshot

Elliot S. Schlissel is a foreclosure lawyer representing homeowners for more than 3 decades. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Technical Foreclosure Defenses

Technical-Foreclosure-Defenses

In almost all foreclosure situations the homeowners have applied for a mortgage, they have been approved by the financial institution, they obtained the mortgage, went to closing and purchased their home. Thereafter, the homeowners fell behind on their mortgage. So how can homeowners who borrowed the money and have not made the payments defend a foreclosure lawsuit? Most foreclosure defenses are based on the failure of the financial institution, its attorneys and/or its employees to comply with the many federal, state, local and other regulatory requirements involved in mortgage lending, recording of mortgages, servicing and administrating the mortgages, modifying the mortgages and providing the homeowners with the appropriate statutory notices they are entitled to. Lenders need to comply with many state and local ordinances andrules.

Issues Related to Closings

All financial institutions have disclosure requirements regarding what takes place at real estate closings. They are also laws and rules regarding predatory lending, fraud, unreasonable fees and other issues related to the underwriting of mortgages.

Standing Issues

Financial institutions have to produce the note. They need the original note before they can proceed with the foreclosure. Clear copies of the loan documents should be attached to the complaint. Homeowners should receive 30 days notice under Real Properties Actions and Proceedings Law Section 1304. There may be defective assignments of the mortgage. There may be late assignments of the mortgage. The individuals signing affidavits related to the foreclosure may not have had the appropriate authority to sign those affidavits. Some assignments of the mortgage may be invalid.

Mortgage Modifications

There are many issues that can occur with regard to the mortgage modification process. Sometimes financial institutions do not negotiate in good faith. They have an obligation in New York State to do this. Trial modifications sometimes are approved and then the permanent modifications are arbitrarily denied. Payments made under the trial modifications are sometimes kept by the financial institutions and homeowners are not given credit for those payments.

Litigation Issues

The Summons and Complaints in the foreclosure lawsuit must be properly served on the appropriate party. Homeowners are entitled to 90 days notice under the Real Property Actions and Proceedings Law before the foreclosure lawsuit is started. Financial institutions need to schedule foreclosure settlement mortgage conferences. They need to file affidavits of due diligence. The death of the homeowner can also create significant issues for the financial institution. Financial institutions also need to comply with the Fair Debt Collections Practices Act.

Legal Defenses and Affirmative Defenses

There are many types of defenses and affirmative defenses that can be alleged in foreclosures other than “I don’t owe the money”. The legal defenses need to be plead in the homeowner’s answer and they need to be backed up by detailed discovery demands forcing the financial institution to turn over all their books and records regarding the underwriting of the mortgage, the closing assignments of the mortgage and compliance with federal and state statutes. The way to win a case often involves investigating what the bank and their attorneys did and what they didn’t do. Finding the bank or their attorneys made a mistake in the mortgage or foreclosure process can be a basis for having the foreclosure lawsuit dismissed.

Elliot Schlissel

Elliot S. Schlissel, Esq. is a foreclosure lawyer having represented homeowners throughout the Metropolitan New York area for more than 3 decades. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Foreclosure Help

Foreclosure HelpThe ownership of a single family home is the American dream. A foreclosure in effect destroys that dream. Families facing foreclosure are apprehensive with regard to how they will deal with this situation. The threat of having your home sold and being forced out of your home is not something a family looks forward to. However, when a bank initiates a foreclosure lawsuit the homeowners have an opportunity to present their case in front of a judge. Since the foreclosure crisis laws have been enacted in New York State to encourage good faith settlement negotiations between financial institutions and homeowners. It gives homeowners an opportunity to consider all forms of loss mitigation. This includes having the homeowners obtain a reasonable mortgage modification.

Chapter 13 Bankruptcy

Bankruptcies are brought in federal courts. Upon filing of a Chapter 13 bankruptcy the federal bankruptcy court issues a stay stopping all legal proceedings in the state court. The state court foreclosure action is frozen. Your house will not be sold. A Chapter 13 bankruptcy allows you to reorganize your finances, establish a plan to catch up on your mortgage and it keeps you and your family in your home.

Stopping the Foreclosure from Moving Forward

While the homeowner is pursuing loss mitigation options including obtaining a mortgage modification, the foreclosure lawsuit must also be dealt with. This will require the homeowner to retain experienced legal counsel to put in an answer to the summons and complaint. The summons and complaint must be responded to in 20 days if the homeowner is personally served or 30 days if they are served by any other means other than having the summons and complaint put in their hands. If the homeowners do not put a written response in to opposing counsel and file that response with the court within a timely manner the lender will be able to obtain a default judgment against the homeowner. This means the homeowner will lose their opportunity to deny the allegations and pursue their claims against the financial institution. A default judgment will have the impact of reducing the time frame the homeowners have to pursue alternatives to the sale of their home and the homeowners being forced from their home.

Foreclosure Strategies

The best way to deal with a foreclosure litigation is take an aggressive posture. This means not only responding to the allegations in the complaint but counter-suing the financial institution to set the mortgage aside. This type of action gives the homeowners some leverage during the course of the mortgage modification process.

Attorney Elliot Schlissel

Conclusion

If you are facing foreclosure it is strongly recommended your retain an experienced foreclosure defense law firm as soon as you are served with paperwork staring the foreclosure lawsuit.

Elliot S. Schlissel, his partner Nathan D. DeCorpo, and his associates, having been fighting foreclosure lawsuits throughout the Metropolitan New York area for more than 30 years. The firm maintains offices in Nassau, Suffolk and Queens Counties and can be reached at 800-344-6431 or by e-mail at Elliot@sdnylaw.com for the purpose of setting up a free consultation regarding foreclosure issues.

Banks Acting in Bad Faith

mortgage modification attorneysIn the case of Federal National Mortgage Association v. Singer, Index No. 850039/2011, Justice Moulton sitting in a Supreme Court Foreclosure Part in New York County, ruled the two banks involved should forfeit more than $100,000 in interest on loans to Mr. & Mrs. Singer. This was a sanction for the failure of the banks to act in good faith with regard to negotiating a mortgage modification with the Singers.

History of the Case

In 2004, the Singers bought two apartments in Manhattan which were next to each other. They gutted and renovated the apartments. When they purchased each of the apartments they took out a separate mortgage on each of the two apartments. After the apartments were renovated, New York taxed the two apartments as a single residence. In 2008, the Singers had a downturn in their income. They used all of their savings to try to keep up with the mortgage payments, taxes, common charges, and expenses which totaled in excess of $5,000 per month. The mortgages totaled more than $500,000 and had interest rates of 7.4% and 6.75%.

Mortgage Consolidation

Mrs. Singer, on numerous occasions, tried to consolidate the two mortgages at a lower interest rate. Initially, she applied to Countrywide, the original lender on the mortgages. Countrywide refused to extend the term or lower the interest rates on the mortgage. Countrywide took the position the Singers did not qualify as distressed borrowers. Their monthly payment on each loan did not exceed 31% of their combined monthly income. In response to this argument Judge Moulton said the bank’s analysis “resulted in an absurd result.” He said this was symptomatic of “many of the faults that plague the current system of refinancing residential property that is in default and/or in foreclosure.”

The loans were eventually sold to Bank of America and the Federal National Mortgage Association (Fannie Mae). Approximately a year and a half later a foreclosure lawsuit was initiated. The Singers again applied for a loan modification. Five months later their modification request was denied. The Singers also offered to pay $18,000 in accumulated interest as part of the loan modification.

Counsel for the Singers had on various occasions suggested balloon mortgages. These mortgages enable residents to make their mortgage payments and help the banks to receive the total amount due and owing to them. This is especially true in light of the fact the apartments owned by the Singers were worth substantially more than the $500,000 in combined mortgages.

Settlement Court Conference

The Singers had attended 5 court settlement conferences. At each of these conferences both Bank of America and Fannie Mae refused to meaningfully negotiate mortgage modifications.

Conclusion

Banks who do not cooperate in negotiating mortgage modifications in good faith can be punished by the courts.New York foreclosure defense lawyer

Court Enforces Mortgage Modification Agreement

foreclosure assistance for long island homeownersIn the case of Brown v. Nationstar Mortgage reported in the New York Law Journal on June 26, 2015, Brown had brought a lawsuit seeking to enjoin the enforcement of a judgment of foreclosure which resulted in the sale of his home. In addition, he sought to stop a proceeding which attempted to remove him from his home after the foreclosure sale had taken place. His lawsuit requested the court rescind the sale of his property and find a mortgage modification agreement he had previously entered into with Nationstar Bank was effective and enforceable.

The court found the only issue which needed to be dealt with, because all of the other relief requested by Brown had previously been litigated, was whether the mortgage modification agreement should be enforceable.

Justice Daniel Barrett found Brown had reasonable notice of the foreclosure proceedings. He stated, however, he was “perplexed by the inactivity concerning this matter.” Mr. Brown had testified he had received a letter from the respondent offering him a mortgage modification. The letter required he sign a mortgage modification agreement and agree to make a payment for the agreement to become effective. He testified that he complied with all of the requirements the bank had requested. In spite of entering into a valid mortgage modification agreement with the bank, a foreclosure sale was conducted and Nationstar Mortgage bought the property. They thereafter served Brown with a 90 day notice to remove himself from the premises.

Mortgage Modification Agreement is Valid and Mortgage Set Aside

Justice Barrett ruled there was a valid mortgage modification agreement because Brown had complied with all of the required terms of the agreement. He then sought to place the parties in the position they would occupy if the agreement was performed pursuant to all of its terms. The judge therefore directed both parties continue to perform under the terms of the agreement and, in addition, there be a two year interest free period.

Conclusion

The entering into of a mortgage modification agreement does not stop lawsuits from moving forward. Banks usually hold the lawsuits in abeyance to see if the terms of the mortgage modification agreement are complied with. However, sometimes the outside counsel representing banks in foreclosure lawsuits have no idea the banks are entering into a mortgage modification agreement. They therefore continue with the foreclosure process which can result in the sale of the home and eviction of the family that lives in the home. To make sure the attorneys representing the bank in the foreclosure proceedings are aware of what is going on between the bank and the homeowner, it is important to provide documentation to the attorneys for the bank with regard to the existence of the mortgage modification being underwritten and being accepted.New York foreclosure defense lawyer

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

How to Spot Bank Fraud

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

http://youtu.be/TJ37ObjF1iA

Elliot S. Schlissel is a foreclosure defense lawyer in the Metropolitan New York area.  He has been helping homeowners stay in the homes for more than 20 years.  Elliot and his associates help their 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.

Couple Receives a Million Dollar Award Against Bank of America

foreclosure defense on Long IslandNelson and Joyce Coniglio had received more than 700 collection calls during a 4 year period when they fell behind on their mortgage payments. The Coniglios hired an attorney to try to make Bank of America stop calling them. Unfortunately, this didn’t work. A Federal Judge sitting in Florida recently awarded the Coniglios $1 million dollars related to the “unrelenting phone calls from Bank of America.”

Bank of America had an excuse for the phone calls. Their Senior Vice President, Dan Frahm, said the calls weren’t to collect a debt, but solely to help the couple avoid a foreclosure lawsuit.

Lawsuit Against Bank of America

The Coniglios were forced to file a lawsuit in Federal Court to stop the harassing phone calls from Bank of America. They received a default judgment when Bank of America failed to respond to their lawsuit in a timely manner. The lawsuit stemmed from Bank of America making hundreds of robo-calls to the Coniglios. Sometimes they received as many as 5 phone calls a day. Jason Coniglio, the parties’ son, stated “we would be out to dinner and they would ring my mother’s cell phone, then they would ring my dad’s cell phone and then when we got back to the house, there would be another message on the answering machine.” Their son, Jason, works as a mortgage broker. He diligently tried to help his parents get a mortgage modification. Unfortunately, he could never get anyone from Bank of America to cooperate with him. Their lawsuit was pursuant to the Telephone Consumer Protection Act. The damages were $500 per call and they were tripled. The Coniglios’ attorney stated “the borrowers, the people who own those phones, you do have a right to privacy. And when they say to stop, you have to stop.”

Bank of America had asked the court to reconsider this large award against them. However, the judge denied their request.

Conclusion

When banks misbehave, they can be punished by taking legal action against them.

foreclosure defense lawyer in New YorkElliot Schlissel is a foreclosure defense lawyer. He represents families throughout the Metropolitan New York area who have problems dealing with banks related to mortgage modifications and foreclosure lawsuits.

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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