Foreclosure Defense Strategies

foreclosure defense attorneysForeclosure Solutions

Homeowners must understand a foreclosure lawsuit is simply a lawsuit between a bank and the homeowners. Homeowners have rights and banks have an extremely heavy burden to meet to be successful in a foreclosure lawsuit. When a homeowner is served with a Summons and Complaint, he or she must submit a written Answer to opposing counsel and file the Answer with the court. The homeowner should be asserting affirmative defenses and counterclaims against the financial institution in his or her Answer. The homeowner can use the foreclosure lawsuit to obtain leverage against the bank and put pressure on them to grant a mortgage modification.

The Answer

When served with the foreclosure Summons and Complaint, the homeowner has twenty days to respond if served personally, and thirty days to respond if served by any other means other than personal service. The homeowner can either submit an Answer or in certain circumstances, make a motion to dismiss the lawsuit right off the bat. It is important to remember that lending institutions and foreclosure legal action by them are extremely heavily regulated by State, Federal and local laws and regulations. Foreclosure defense attorneys utilize these regulations of financial institutions in developing defenses for homeowners. In addition to making a motion to dismiss, and submitting defenses, a homeowner can submit what are called affirmative defenses. These are technical legal challenges on substantive grounds with regard to issues related to the foreclosure lawsuit. Examples of affirmative defenses are: lack of standing, robo-signing, dual tracking, failure to document the loan, improper notice, improper service, fraud, loan modification issues and many other affirmative defenses.

Countersuits

Counterclaims can be brought against financial institutions seeking monetary damages. These countersuits can be based on allegations the financial institution caused injury to the homeowner. There are also statutory violations and statutory penalties which can be brought against the financial institution. Unique facts related to each homeowner’s situation can be molded into an appropriate Answer with affirmative defenses and countersuits against the bank.

Discovery

After the Summons and Complaint is served and an Answer is submitted, a lawsuit enters what is called the discovery phase. During this phase the attorneys for the homeowner can force the bank to turn over documents, bank records, underwriting records, and other information to help the homeowner with his or her defenses. If the bank’s attorneys refuse to comply with discovery demands, motions to dismiss the lawsuit can be made to the court.

foreclosure lawyers on Long IslandDeveloping The Response To The Summons and Complaint In The Foreclosure Lawsuit

Some law firms who handle one or two foreclosures a year look at a research book and submit a standard response in their answer. This is a standardized document not tailored to the specific needs of the homeowner. Our law firm, which has represented hundreds of homeowners, does not use boiler plate responses. Each and every foreclosure lawsuit is analyzed and specific affirmative defenses and countersuits related to the circumstances in each and every case are submitted by our law office.

Foreclosure Settlement Conferences

New York State has mandatory foreclosure settlement conferences required to be attended by the attorney for the homeowner and counsel for the lender. At these settlement conferences both parties are expected to negotiate and act in good faith. Referees at these conferences try to motivate the financial institutions to grant the homeowner a mortgage modification. Even if the homeowner has been turned down several times before, he or she can still use the leverage of the mandatory foreclosure court conference to obtain a mortgage modification.

Motion for Summary Judgment By The Banks’ Lawyers

In almost every foreclosure lawsuit, at some point, the attorneys for the financial institution bring a motion for summary judgment. This motion basically states that there are no issues of fact involved in the case, no valid defenses and the bank should be entitled to a judgment of foreclosure without a trial or further hearing. This is where the affirmative defenses and discovery demands by the homeowner come into play. The affirmative defenses can be utilized to argue to the court what the bank has done wrong. The failure of the bank to provide necessary documents and other requested information by the lawyer for the homeowner can help to defeat the summary judgment motion.

Conclusion

Banks do not always win foreclosure lawsuits. The legal system is designed to see to it financial institutions don’t take advantage of homeowners. Our law firm’s single goal is to help homeowners fight the foreclosure, keep their home, and obtain mortgage modifications. We have been successfully representing homeowners for more than 20 years.homeowner advocates on long island

Predatory Loan Issues

foreclosure defense help in New YorkBAC Home Loans Servicing had brought a foreclosure lawsuit against Ramsay. BAC had moved for summary judgment claiming there were no issues of fact and therefore they should be entitled to summary judgment without the need for a trial. They also sought to strike Ramsay’s Answer and have a referee appointed to compute the sums due and owing BAC under the terms of the mortgage.

Ramsay contended BAC’s summary judgment application should be denied. Ramsay claimed there was predatory lending and discriminatory practices involved in making the mortgage by the original lender, Madison Home Equities.

Justice Bernard Graham found BAC did not establish a prima facie case allowing them to obtain summary judgment in their foreclosure proceeding. Judge Graham had questions concerning the relationship between Madison Home Equities and BAC. A question arose as to whether their business relationship would support the allegations made by Ramsay concerning predatory loan practices. In addition the court found Ramsay had offered plausible, reasonable evidence BAC’s decision to deny the mortgage modification was based on incorrect calculations by them. Judge Graham found denial of the mortgage modification may have been unreasonable and Ramsay may have been entitled to said mortgage modification.

Conclusion

The judge carefully reviewed the facts of this case and rendered an important decision supporting homeowner’s rights in this foreclosure case.helping homeowners stay in their homes

Appellate Court Addresses Bad Faith by Financial Institution in Foreclosure Proceeding

foreclosure defense lawyerThe Appellate Division of the Second Department is an Appeals Court in New York. This court recently rendered a decision with regard to the issue of a bank negotiating in good faith at foreclosure court conferences. In the matter of U.S. Bank, N.A. v. Sarmiento the court upheld a decision by a Supreme Court judge which prevented the collection of interest or fees which had been accumulating on a loan since December 2009. The court in its decision stated “the issue of whether a party failed to negotiate in good faith within the meaning of CPLR 3408(f) should be determined by considering what the totality of the circumstances demonstrates that the party’s conduct did not constitute a meaningful effort at reaching a resolution.”

Mortgage on Home in Brooklyn

U.S. Bank held a mortgage of approximately $600,000 on a home in Brooklyn owned by Jose Sarmiento. In May 2008, Mr. Sarmiento lost his job. He was in touch with the mortgage servicing company, America’s Servicing Company, a subsidiary of Wells Fargo. He was told he did not meet their qualifications with regard to a mortgage modification. They claimed he didn’t make enough money. He thereafter defaulted on making the payments under his loan. However he found a tenant who was willing to pay rent and asked for another opportunity to submit a mortgage modification application. The servicing company refused his request. The court found Civil Practice Law and Rules section 3408 (f) states “both the plaintiff and defendant shall negotiate in good faith to reach a mutually agreeable resolution including the loan modification, if possible.” The court’s decision indicated between September 2009 and January 2011 there were 18 separate court conferences. The referee in charge of these conferences found the servicing organization mishandled various aspects of the negotiations. Documents were misplaced and denials were made on erroneous grounds. That mortgage modification actually wasn’t appropriate for Mr. Sarmiento.

Bank Prevented Settlement of the Case

The court found the bank prevented the reasonable settlement of this case. The attorney for Sarmiento indicated this court’s decision gives homeowners “a sword against lenders and they can use it immediately.” He further stated the bank was prevented from collecting over $300,000 in interest in this case. A spokesman for Wells Fargo stated their company “works hard to help our customers avoid foreclosure and communications during the modification process.”

Foreclosure Court Conference

Our office handles numerous foreclosure court conferences each and every week. We often find the banks hire per diem lawyers who know nothing about the case and have no authority to negotiate with the homeowner’s attorney at these conferences. The failure of banks to send attorneys who have authority to deal with important issues at these foreclosure court conferences is a violation of the good faith requirements of the statute which created these foreclosure court conferences. In essence it makes the foreclosure court conferences a waste of time!helping homeowners stay in their homes

Low Cost Loans Designed to Stop Foreclosure On Long Island Are Now Available

loan modification lawyerNew York Attorney General Eric T. Schneiderman has recently held a news conference with regard to the new low cost loan program designed to stop foreclosures. At his news conference he stated “we are going to provide loans to families that prevent them from losing their homes.” He went on to state “we know how hard Long Island was hit by the foreclosure crisis this was the worst of the worst. There was a big boom and a big bust.”

Foreclosures on Long Island

The foreclosure rates in Nassau and Suffolk Counties are among the highest in New York State. The highest rate of foreclosures is in the Village of Hempstead in Nassau County. Hempstead residents have a mortgage delinquency rate approaching 30%.

The New Program

Under the new program, families whose mortgages are overdue can borrow up to $40,000. These low cost loans can be used to bring mortgages up to date and deal with property tax issues. These loans will not be payable until the house is sold or the entire mortgage is repaid. These loans will be interest free. However, the amount due and owing will be adjusted to account for inflation. Applications for these loans will start being processed on September 15, 2014. Applications for Long Island residents will be processed first and a month later residents of other parts of the state can apply for this program. There is a requirement that individuals applying for this program earn less than 120% of the area’s median income.

helping homeowners stay in their homesElliot Schlissel is a foreclosure attorney. Elliot has been helping New Yorker’s stay in their homes for more than 20 years. Elliot and his staff of lawyers litigate foreclosures, deal with predatory lending issues, and assist clients in applying for mortgage modifications. His phones are monitored 24/7 and free consultations are offered.

Why Apply For a Mortgage Modification?

mortgage modification attorneysThe reasons for applying for a mortgage modification have to do with reorganizing your financial obligation under your mortgage into a more affordable and more practical payment plan. If the payments on your mortgage can be reduced, modified or amended to the point you can afford to make these payments on a regular basis, you can pull your case out of a foreclosure situation.

Leverage in Mortgage Modification Negotiations

There are numerous mortgage modification programs. The granddaddy of them all is the Home Affordable Mortgage Program (HAMP) established by President Obama in his first term in office which has been extended while he is currently in office. Banks will also have their own in house mortgage modification plans. However, most banks are really not interested in giving you a mortgage modification. Most banks would rather write you off, foreclose on your home and move on to deal with customers they feel they can make money on. The large majority of homeowners who apply for mortgage modifications are turned down. Even those individuals and/or families receiving temporary mortgage modifications often are denied permanent modifications at the end of their temporary modification period. However, do not despair. There is a way of putting pressure on financial institutions to reconsider giving you a mortgage modification in the future.

Foreclosure Mediation Court Conferences

Under the law in New York, after a foreclosure lawsuit is started, the attorneys for the homeowner and the attorneys for the financial institution have to meet and negotiate, in good faith, in court at a foreclosure conference. Action can be taken utilizing the pressure of the court proceedings to reapply for a new mortgage modification even if turned down in the past.

Different Criteria for Different Lenders

No two financial institutions have the exact same requirements for mortgage modifications. The underwriting requirements vary from financial institution to financial institution.

Costs of Mortgage Modifications

There is usually no cost involved in mortgage modification programs. This means if you apply and are turned down, there are no expenses that you will have incurred. The writer firmly believes that God helps those who help themselves. If there is any possibility of obtaining a mortgage modification you should apply for one. There are all types of programs available. Some programs involve deferring significant portions of the debt and having balloon payments 20 or 30 years down the road. Applying for a mortgage modification can save your home from being taken from you in a foreclosure lawsuit.

Our law firm zealously litigates all foreclosure defense cases for our clients, however, we also negotiate in an appropriate manner with financial institutions to pull our clients out of foreclosure by having them granted mortgage modifications. Our attorneys have more than 100 years of combined legal experience. Should you have a foreclosure problem or a potential foreclosure problem, call us for a free consultation. We can be reached at 1-800-344-6431, 516-561-6645 and 718-350-2802.assisting homeowners

Foreclosure and Reverse Mortgages

real estate and elder care attorneysThe purpose of a reverse mortgage is to allow seniors who have homes with substantial equity to pull the equity out of their home and still be able to reside in the home for the rest of their lifetime without making mortgage payments. The difference between a reverse mortgage and a traditional conventional mortgage is the individual taking out the loan under a reverse mortgage does not have to make monthly mortgage payments. The lender only gets paid when the mortgagor dies, or in the event of the sale of the home prior to the mortgagor’s death.

No Personal Obligation to Pay a Reverse Mortgage

There is no personal obligation on the mortgagor to make payments with a reverse mortgage like there is in a traditional mortgage. The only method the financial institution has to collect under a reverse mortgage is from the sale of the home. The lender is therefore exposed to not being capable of having its loan repaid should the market conditions reduce the value of the home or the home be in poor condition. However, the lender can obtain insurance from HUD to protect it from the risk of the home not being worth the amount of the loan plus interest.

Underwriting Reverse Mortgages

The loans are underwritten by financial institutions based on a number of factors. The older the mortgagor is, the more money can be obtained in the mortgage. This takes into consideration the fact that the older the mortgagor is, the smaller his or her life expectancy will be. The shorter life expectancy allows the loan to become due and payable earlier in time.

In the event there are co-mortgagors on the loan, the loan is not called due until the second of the two mortgagors dies.

Problems with Reverse Mortgages

In recent years, when homes were owned by husbands and wives and one of the spouses was older than the other, the banks would convince the younger spouse to deed his or her share of the property to the older spouse. This action was taken so the underwriter would allow a larger amount of money to be borrowed in the mortgage based on the shorter life expectancy of the older spouse. The younger spouses were assured in the event the older spouse dies, they would be allowed to continue to reside in the house. Unfortunately, that is not what happened! When the older spouse, the mortgagor, died the surviving spouse was notified by the financial institutions the reverse mortgage was due and payable because the surviving spouse was not a party to the mortgage loan. Since the surviving spouse was also a senior, and had limited cash flow in most situations, he or she was unable to make the mortgage payments and therefore the house would end up in foreclosure.

HUD has recently dealt with this issue.

New HUD Policy

With regard to all reverse mortgages that are given by financial institutions after August 4, 2014, the new rule requires the non-borrowing spouse who had been married to the borrowing spouse (mortgagor), at the time of the closing, will be afforded protection by this rule and the financial institutions will not be permitted to bring foreclosure lawsuits against the surviving spouse or request payment of the mortgage upon the death of the spouse who was on the mortgage. The financial institution will not be entitled to bring a foreclosure proceeding until the surviving spouse also dies. It should be noted this rule only applies to parties who were actually married at the time the mortgage was taken out. In the event a reverse mortgage is taken out and then the mortgagor marries, that surviving spouse would not be included under this new rule and would need to either pay off the mortgage or have the house subject to being foreclosed upon.assisting homeowners

Mortgage Lenders: Are There Differences Between Them?

foreclosure defense lawyerThe first thing most prospective homeowners think about with regard to a mortgage is, what will be the interest rate? Obviously, the lower the interest rate, the less the mortgage will cost the consumer. However, there are other important issues to think about when applying for a mortgage.

What Type of Institution is Best For You to Deal With

Large national banks in some areas of the country dominate the mortgage marketplace. Examples of these types of banks are, JP Morgan Chase, Citibank, and Bank of America. Large financial institutions set their own guidelines with regard to underwriting requirements for mortgage loans. Most large financial institutions do not pay commissions to third party mortgage brokers. This brings the cost of obtaining a mortgage from a large financial institution down. These banks will, if you take a mortgage out from them, provide you with incentives such as paying you higher rates of interest on savings and checking accounts. If you deal directly with a large banking institution, you should try to develop a rapport with the individual at the bank handling your transaction. This will be helpful to you should there develop problems in the underwriting process.

Online Financial Institutions

The internet provides its own marketplace for financial institutions to advertise regarding mortgage loans. Online financial institutions are better suited to refinancing mortgage loans than initiating mortgage loans on the purchase of a home. Sometimes problems arise when dealing with online lenders because they are not located in the community and may not be familiar with the problems in the local real estate market. There is a benefit from dealing with a financial institution on a face to face basis.

Do You Need a Mortgage Broker?

Mortgage brokers are not technically working for a financial institution. They are middlemen who usually work on a commission basis. They may have contacts with a number of lending institutions. They can be helpful to you with regard to properly filling out the necessary forms required in a mortgage application. They also may be in a position to shop around for the best deal you qualify for. In special situations where you have a problem related to your property or your property is of a unique nature they may be able to find a financial institution to specifically fit your needs. They can also run interference for you with the financial institution and eliminate some of the busy work you may need to do with a direct lender. You should take into consideration however, since they are a middleman, and they will be working for commission, they may bring up the cost of the acquisition of your mortgage.

Conclusion

The purchase of a single family home is usually the largest transaction an individual or family will be involved in. Care should be taken when applying for a mortgage to see that the type of institution and deal you are offered is the most appropriate one for your particular circumstances.

assisting homeownersElliot S. Schlissel is a foreclosure defense lawyer. Elliot has published several hundred articles with regard to foreclosures, mortgage modifications, and other real estate issues. Elliot and his staff of attorneys represent homeowners having financial difficulties and who face foreclosure lawsuits in the Metropolitan New York area. Elliot and his attorneys have developed an expertise in dealing with financial institutions, helping their clients obtain mortgage modifications, and stopping financial institutions from successfully foreclosing on their homes when they fall behind on their mortgage payments. He offers free consultations to prospective clients.

Foreclosure Proceeding Dismissed: Bank Had No Standing

A foreclosure lawsuit was brought by Deutsche Bank in Kings County, New York, Supreme Court. The Judge in the Part was Larry Martin. During the course of the proceeding, Deutsche Bank brought a motion for summary judgment and the defendant, Johnson, cross moved for summary judgment and dismissal of the complaint. Summary judgment motions basically state there are no issues of fact that need to be litigated. With regard to a summary judgment motion, a party has to establish that there are no facts in controversy concerning the position that party takes. Here, each side was seeking a win based on the idea the other party was completely wrong. Deutsche Bank argued, in their application to the court, Johnson had not made payments under the note. Johnson, in his motion, challenged the debt. He also claimed that Deutsche Bank was not the owner of the note. Johnson had requested the original note, the mortgage and a mortgage modification that she had allegedly entered into, be produced. Johnson claimed that Deutsche Bank had failed to properly assign these mortgages.

No Evidence of a Written Assignment of the Mortgage

Judge Larry Martin, in his decision, held evidence was not produced of a written assignment of the note from Deutsche Bank to OCWEN. Judge Martin held Deutsche Bank had to prove the note was physically delivered to it before November 3, 2011, the day the action was commenced. The attorneys for Deutsche Bank said that they had the original note and mortgage. However, the law firm did not provide documentation as to the time they came into possession of the note and mortgage.

Judge Martin, in his decision, held the only evidence Deutsche Bank submitted with regard to their standing to bring this lawsuit was inconclusive. The fact that they had failed to submit a written assignment of the note or documentation to establish the physical delivery of the note caused their claim to fail. Johnson’s motion to dismiss the lawsuit was granted.homeowner advocates

Judge Sanctions Bank for Foreclosure Activities: The Appellate Division Reverses the Sanctions

foreclosure defense lawyersJohn Lucido, who had been a mortgage broker, had taken out a mortgage loan, in March of 2007, of approximately $500,000 with regard to his Rocky Point, Long Island New York home. He was unable to make his mortgage payments and in 2009, Bank of America brought a foreclosure lawsuit in Suffolk County, New York.

Foreclosure Court Conferences

There were numerous foreclosure mediation conferences. However, Lucido had been ill and his wife had died during the course of the litigation. This complicated the issues that were dealt with at the foreclosure conferences. At the time of the foreclosure mediation conferences, Lucido represented himself. The conferences were held pursuant to New York Civil Practice Law and Rules Section 3408, which states “both the plaintiff and the defendant shall negotiate in good faith to reach a mutually agreeable resolution with regard to residential foreclosure lawsuits.”

Judge Spinner’s Ruling

The case was heard before Judge Spinner sitting in a Foreclosure Court Part in Suffolk County. Judge Spinner, in April 2012, ruled Bank of America had “deliberately acted in bad faith.” He had made this ruling because they had delayed six months in producing a pooling and servicing agreement. Judge Spinner also stated Bank of America gave “material misstatements of fact” which had been calculated to deceive the court and also cause delay of the court proceedings. Judge Spinner went on and held the bank had misinformed the court that the pooling and servicing agreement which controlled Mr. Lucido’s mortgage specifically forbade principal reductions. Later the bank acknowledged there was no bar to principal reductions in the pooling and servicing agreement.

Judge Spinner in his decision forever restrained Bank of America from “demanding, collecting or attempting to collect, directly or indirectly” sums related to the $493,209 mortgage that were either “interest, attorneys’ fees, legal fees, costs and disbursements.” He had held the bank could only collect principal and any funds advanced by the bank related to property taxes or insurance on the property. In addition, Judge Spinner imposed $200,000 exemplary in damages against the bank. This cut the bank’s principal to $293,219.

The Appellate Division Overrules

The Appellate Division of the Second Department, an appeals court, overruled Judge Spinner’s decision in its entirety. The Appellate Division held he did not have the authority to impose that level of penalties against Bank of America. The Appellate Division held the bank’s conduct did not justify the sanctions imposed by Judge Spinner and sent the case back to Judge Spinner for further proceedings. The appellate court took into consideration Lucido’s “unfortunate situation.” However, they held the record on appeal “reveals the conduct of the plaintiff in this case was not so egregious as to merit the imposition of sanctions against it.” The fact Bank of America refused to give Lucido a principal reduction and they had delayed in producing documents did not, in and of itself, amount to a failure to act in good faith.

Conclusion

Judge Spinner’s remedy was unusual, but there have been other cases that have upheld the tolling of interest when banks do not negotiate in good faith. I believe Judge Spinner was looking to send a message to financial institutions to be more cooperative at the foreclosure mediation conferences. Unfortunately, the Appellate Division did not agree.foreclosure advocate for homeowners

Hidden Expenses When Buying A Home – Part II

foreclosure defense attorneyRenovations to the Home

It is usually necessary for new homeowners to do small to moderate renovations to their new home. Things such as painting, changing fixtures, modifying kitchens and bathrooms, can amount to tens of thousands of dollars very quickly. It usually costs homeowners anywhere from 1 to 2% of the purchase price of a home to do minor modifications or renovations to the home to make it more livable and/or suitable for their life.

New Appliances

So you have just bought your new home. When you look at your kitchen, do you really want all of the old appliances? If you are going to buy new appliances, this is the right time. However, appliances are not inexpensive. Purchasing new appliances or upgrading old appliances can run into thousands of dollars.

Termite Inspections

If your home is made of wood, you need to have a termite inspection. Termites have been around since the beginning of time. In many areas of the country, forests were originally cut down to make room for the development of communities. When they cut the forests down, the termites didn’t leave. They went into the ground and they feasted on the new homes that were built.

A large portion of the homes in the northeast of the United States during the course of their lifetime will be subject to termite infestation. Before purchasing a new home it is important you have a termite inspection to make sure your home is termite free. If termite damage exists, the termite damage should be repaired before you close on the purchase of your home. In addition to termites, there are other wood destroying insects that you need to be concerned with. Carpenter ants also can cause significant damage to homes. The cost of termite inspections and/or repairing the damage done by termites can be an unforeseen expense when purchasing a new home.

Escrow for Taxes and Insurance

When you close on a home, the bank will usually require you deposit a certain amount of money in escrow related to your annual tax and insurance payments. Banks require 1/12 payments each month to be made by the homeowner related to the hazard insurance costs on their property and the real estate and school taxes that are due on their property. At the time of closing, banks normally pick up at least one month’s taxes in advance and the balance of the month from the date of closing until the first date of the next month.

homeowner advocatesElliot Schlissel and his associates are foreclosure defense lawyers. They litigate foreclosure lawsuits on behalf of homeowners and help them obtain mortgage modifications. Elliot and his associates have been helping homeowners keep their homes for more than 20 years.

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