Mortgage Time Barred And Therefore Cancelled and Discharged

foreclosure attorney Long IslandIn a case before Justice Yvonne Lewis sitting in the Supreme Court Foreclosure Part in Kings County, defendant Ellery Beaver LLC brought an application for summary judgment seeking the discharge of HSBC’s mortgage on their property. HSBC brought a cross application for dismissal of the action by the plaintiff.

In this case, Renee took out a mortgage on her property. The mortgage was assigned to HSBC from the prior financial institution. HSBC brought a foreclosure action in 2006 claiming Renee defaulted in making the mortgage payments. HSBC’s original lawsuit was dismissed. In 2009, a second foreclosure action was started by HSBC. This was also conditionally dismissed in 2013 for failure to prosecute by HSBC.

Renee eventually sold the property to Ellery. More than a year passed and thereafter HSBC brought an application to restore the 2013 lawsuit which had been dismissed. Justice Yvonne Lewis denied this request. HSBC took the position the statute of limitations hadn’t run. However, the court took the position since HSBC accelerated the debt upon the filing of the first lawsuit, the statute of limitations had run and therefore any attempt to foreclose was time barred. The judge took the position Ellery was entitled to a judgment dismissing the mortgage because HSBC failed to successfully commence a foreclosure lawsuit within the six year statute of limitations time period. The judge ordered HSBC’s mortgage be dismissed and discharged.


This is a major win for homeowner’s rights. Even though lawsuits can be held to be time barred under the statute of limitations, it is very unusual a judge will go so far as to remove the mortgage lien from the property even though action upon the note is time barred.foreclosure defense lawyer

Bank’s 4 ½ Year Delay In Entering Judgment in a Foreclosure Case Are Grounds to Dismiss the Lawsuit

foreclosure attorney New YorkJustice Phyllis Orlikoff Flug sitting in a Foreclosure Part in Queens County Supreme Court recently had a case where the defendants moved to dismiss the bank’s lawsuit in a foreclosure legal action. The lawsuit had been initiated against the defendants Michael Pertab and Cholying Pertab in 2010. Michael had been served by personal service in July 2010 and Cholying had been served by substituted legal service in August 2010.

After more than 4 ½ years after the lawsuit was initiated the defendants appeared in this lawsuit. The court took notice the lawsuit was more than 4 ½ years old before the defendants decided to appear in the case.

Law Requires Entry of a Default Judgment Within One Year

Justice Flug took note that New York Civil Practice Law and Rules Section 3215(c) stated that if a plaintiff failed to take action to enter a judgment within one year after the default took place no entry should be made, but instead, the claim should be dismissed as being abandoned. The only exception to this rule was if there was sufficient cause shown why the dismissal should not be warranted. In this case Judge Flug found the plaintiff’s excuses for the delay in entering the judgment included a change of their lawyer, issues concerning the assignment of the mortgage to a new party, and administrative order 431/11. However, Justice Flug found that none of the explanations justified their delay of 4 ½ years with regard to moving forward to enter a default judgment. Justice Flug therefore granted the defendants’ (homeowners) motion to dismiss the case.


If a bank brings a lawsuit against you and they fail to enter a judgment within one year you have a basis for moving to have the action dismissed. A one year delay in banks moving forward to enter judgment is not unusual!

foreclosure defense lawyerElliot S. Schlissel is a foreclosure defense lawyer representing homeowners with regard to obtaining mortgage modifications and fighting foreclosure lawsuits throughout the Metropolitan New York area.

Foreclosure Defense Advice for 2016

foreclosure attorney New YorkIn many parts of the country, the real estate crisis which has caused the high rate of foreclosures is easing. Unfortunately, this is not the case in the Metropolitan New York area. There is expected to be a large flow of new foreclosure cases coming into the courts in 2016. Here is my New Year’s advice for foreclosures which start in the year 2016.

Don’t Ignore the Foreclosure

In my decades of representing homeowners whose homes go into foreclosure, I am shocked by the number of homeowners who simply put their heads into the ground and ignore the fact that their financial institution is taking legal action against them. There are many things that can be done to stop foreclosures from moving forward, to obtain mortgage modifications, to get banks to pay attention to your situation, to tie cases up in court and to challenge the appropriateness, the standing, the basis of the lawsuit and to move to set the mortgage aside. Do not be an ostrich if your home is going into foreclosure. Obtain the legal services of a competent, experienced foreclosure defense attorney.

Look Into Your Legal Options

As stated in the prior paragraph, ignoring the situation is not a smart option to take. If you haven’t applied for a mortgage modification, apply for one. God helps those who help themselves. The worst that can happen is you will get turned down.

Disaster Situations

If you have been subject to a natural calamity or disaster, which has caused a hardship for you or your family, contact your lender and put them on notice of the situation. They may be able to provide you with a forbearance agreement to help you get on your feet.

Refinancing the Loan

If your mortgage loan is not working out for you, before you fall far behind look into the possibility of refinancing your mortgage. Don’t wait until you are many months behind to consider this option. By then it will be too late!

Sell Your Home

If your home has equity in it, and you can’t afford it, selling your home is an option. You can sell the home and keep the equity which exists in your home. Although many homes are going into foreclosure in the Metropolitan New York area, real estate values are increasing. Your home may be worth more than you think it is worth. This is something you should look into.


Bankruptcy should be the last option you look into, not the first. There are two types of bankruptcies a homeowner can file. A Chapter 13 bankruptcy is a repayment plan which can help you become current on your existing mortgage over 5 years. A Chapter 7 bankruptcy eliminates the personal obligation on your debt. The filing of either of these bankruptcies creates an automatic stay received from a federal court. This stops foreclosure lawsuits from going forward during the pendency of the bankruptcy.foreclosure defense lawyer

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

mortgage modification attorneysResponse To The Motion For Summary Judgment

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

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


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


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

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

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

Lack of Standing Defense

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Elliot S. Schlissel is a foreclosure lawyer who has been representing homeowners for more than 45 years.  His goal is to keep homeowners in their homes.  He defends homeowners in foreclosure lawsuits and helps his clients in obtaining mortgage modifications.  He and his associates can be reached for consultation at 516-561-6645, 718-350-2802 or by email to

More Homeowners Are Using Lawyers To Defend Them In Foreclosure Cases

mortgage modification and bankruptcy attorneys on long islandThe percentage of homeowners utilizing attorneys to appear on their behalf at mandatory foreclosure settlement conferences has been increasing. While legal representation of homeowners in foreclosure has been increasing, the number of cases being filed by banks to foreclose on homes is decreasing.

Caseloads Decreasing

In 2013, 46,700 cases were filed in New York State. Only 44,500 cases were filed in the State of New York during the 2014 calendar year. Foreclosure lawsuits are approximately 30% of all cases filed in the Supreme Courts in the State of New York.

The judiciary in the State of New York has a commitment to continue with foreclosure settlement conferences for the purpose of resolving foreclosure lawsuits without the need for further litigation. There are several reasons given for the reduction in foreclosure filings in New York State. Real estate prices have been going up, and less homes are underwater. In addition, the requirements to obtain new mortgages have been made more reasonable.

Specialized Court Parts and Court Programs Move Foreclosure Cases Faster Through New York Courts

There are a number of specialized court parts and court programs which have been established to ease the log jam of foreclosures in the courts in New York. In Nassau County there is a special court part which was established in 2013. In this part, banks can ask for expedited rulings in cases where the homeowners defaulted on the mortgages and didn’t appear in court or the homeowners had exhausted all settlement options. Up until now, about 800 cases have been resolved in this specialized part. In addition, Nassau County, Suffolk County and Bronx County have what are called servicer parts. In these parts, officials are authorized to approve mortgage modifications on the behalf of homeowners attending settlement conferences. A similar court part is envisioned to be brought into effect in Kings County and Queens County in the near future.

New Rules Concerning Foreclosures

Effective December 1, 2014, referees in foreclosure conference parts have the ability to consider alternatives such as loss litigation options involving loan modifications, deeds in lieu of foreclosure, and short sales. It is anticipated all these new activities will speed foreclosures through the court and assist homeowners in obtaining mortgage modifications.foreclosure defense lawyer in New York

Bank’s Bad Faith When Negotiating Mortgage Modifications

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Elliot S. Schlissel is a foreclosure defense lawyer.  He and his associates have been helping homeowners stay in their homes for more than 45 years.  His phones are monitored 24/7.  Please call for a consultation at 516-561-6645, 718-350-2802 or send an email to

Court Rules Aimed at Helping Homeowners

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Elliot S. Schlissel is a foreclosure lawyer.   Elliot and his associates help their clients obtain mortgage modifications, defend foreclosure lawsuits, and counter sue banks.  Elliot can be reached for consultation at 516-561-6645, 718-350-2802 or by email to

How to Qualify For a Mortgage

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

Elliot S. Schlissel is a foreclosure defense attorney. Elliot and his associates have been helping homeowners stay in their homes for more than 45 years.  The lawyers at the Law Office of Elliot S. Schlissel help their clients obtain mortgage modifications, defend foreclosure lawsuits, and counter sue banks.  Elliot can be reached for consultation at 516-561-6645, 718-350-2802 or by email to

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