Foreclosure Lawsuit Blocked Concerning Death Issues

foreclosure attorney in New YorkA foreclosure action was brought by JP Morgan Chase in the Supreme Court of New York County. Justice Francois Rivera was the judge assigned to the case. Chase claimed in their pleadings that Charles had executed a mortgage and note on real property in favor of Fleet Real Estate Funding. They claimed Fleet Real Estate Funding had assigned the mortgage to JP Morgan Chase. They claimed Charles defaulted on making his payments on the note and mortgage, they had accelerated the note and mortgage and served the acceleration notice on Charles.

Charles’ Death

After Chase had commenced this lawsuit they ascertained that Charles had died. It should be noted Charles did not respond to any of the documents served upon him by Chase or the Summons and Complaint. That may have been related to the fact that he wasn’t alive!

Although Chase was aware that Charles had died, the moving papers submitted by them did not contain an original death certificate. The court was never made aware as to when Charles died. Judge Rivera advised Chase that when an individual to a lawsuit dies, the court is divested of jurisdiction to continue legal proceedings until an appropriate substitution is made. In addition, any court order rendered after the date of death of a party and before a legal representative is appointed to represent the deceased party would also be void.

Judge Rivera reached the conclusion since Chase had not submitted a death certificate, and they weren’t aware of the date of death, they could not determine if Charles was ever legally a party to this lawsuit. The court further stated if Charles died after the lawsuit was initiated, the action would be stayed under New York State law. In the end, Judge Rivera found that Chase could not have any relief at all until they resolved the issues concerning Charles’ death.


Dying is a defense to a foreclosure lawsuit! However, there are less painful defenses which can be established by hiring a foreclosure lawyer upon the initiation of legal proceedings against you.New York foreclosure defense lawyer

The Lack of Standing Defense in Foreclosure Lawsuits – Part II

loan modification lawyerPresenting the Lack of Standing Issue to the Court

To start with, the lack of standing must be plead as an affirmative defense in the homeowners’ Answer. The homeowner can thereafter during the discovery portion of the case demand documentation from the financial institution of the chain of assignments which led them to bring this lawsuit. If the bank cannot produce documentation of this chain of assignments the homeowner can make a motion to dismiss under New York Civil Practice Law and Rules section 3211. The homeowner, in their moving papers to dismiss the lawsuit, must make the argument the financial institution bringing the lawsuit is not a valid holder of the note and mortgage and/or there is an issue concerning one or more of the assignments in the chain of assignments.

Lack of Standing Arguments

Many homeowners who come into my office have researched on the internet and through other sources the issue of standing and seek to submit a lack of standing argument to the court. However, the technicalities of bringing a motion to dismiss under section 3211 of the New York Civil Practice Law and Rules and the manner in which the motion needs to be presented to the court generally requires an expertise which is beyond the ability of most homeowners. The best way to assert and/or prove a lack of standing argument for the purpose of getting a foreclosure case dismissed is to hire an experienced foreclosure defense lawyer to make these arguments for you.New York foreclosure defense attorney

Foreclosure Legal Documents – Part I

foreclosure defense on Long IslandThe Summons

The purpose of a Summons is to inform the person being sued that a lawsuit is pending against them and an Answer to the lawsuit must be filed if they seek to contest or assert their rights related to the lawsuit. Each defendant in a foreclosure lawsuit who is named must be served by a process server in New York. Homeowners who are named as defendants in foreclosure lawsuits must be served with a Summons. Also, individuals having liens on the house or creditors holding judgments filed against the house also must be served with a Summons. This gives these other individuals notice that this lawsuit may affect their rights to collect on their liens and judgments against the house. The Summons specifically provides notice to the homeowners with regard to how much time they have to respond to the initiation of the lawsuit. The Summons states if the individual is served personally, they have twenty days to respond, and if served by any other means other than personal service, they have thirty days to respond to the lawsuit. This sets the time period by which homeowners who are served with the Summons and Complaint in foreclosure cases must respond to it by filing a written Answer, acknowledged before a notary public, with the Court and with the attorney for the bank. If the homeowner fails to respond in a timely manner, their failure to submit an Answer will be considered a default. The default means the homeowner is not challenging the allegations in the lawsuit.New York foreclosure defense lawyer

Underwater Homes

foreclosure defense lawyer in New YorkThe term “underwater homes” means the home is worth less than the amount owed on its mortgage. Another way of referring to a home that has a mortgage greater than its value is “negative equity”. Most people who are in underwater homes are unable to sell their home or refinance it. At the height of the real estate crisis in America in 2012, approximately one-third of all homes in the United States were underwater. Today, approximately 15% of homes in the United States are underwater. This represents about 12% of all homeowners in the country, or approximately 950,000 homeowners have homes which are underwater. In many instances, homeowners’ homes are so far underwater that the mortgage is twice the value of their home.

Real estate values have been going up recently. However, many homes in America are so far underwater these homes will never reach a point of having equity in them.

Lack of Funds and Bad Credit

This can result in the homeowner trying to rent a home when they don’t have sufficient funds to pay the security and one month’s rent on a rental apartment or rental home. They also will most likely have a low credit score because they are behind on their mortgage payments. Landlords do not like to rent homes to families that have bad credit.

What Should Homeowners With Underwater Homes Do?

The best recommendation would be to consult with a foreclosure defense attorney. What homeowners of underwater homes should not do is move out and abandon their homes. The fact their home is underwater and they are behind on their mortgage, does not mean they are in imminent threat of losing their home and being forced out of it. In most situations, it is in the homeowner’s best interest to continue to live in their home. Many homeowners do not understand the full implications of simply moving out of their home, abandoning it and not paying their mortgage.


Don’t move out of your home solely if you are behind on your mortgage payments. Try to obtain a mortgage modification. Seek out an experienced foreclosure lawyer and review your options with him or her.New York foreclosure defense lawyer

What Happens When You Fall Behind On Your Mortgage?

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

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

Proposed Changes To The Foreclosure Process In New York State

foreclosure defense lawyerBenjamin Lawsky is the Superintendent of Financial Services in New York State. He feels the delays in foreclosure settlement conferences are the main reason why New York’s foreclosure system is “broken and badly in need of change.” A study by the Department of Financial Services found that it takes approximately 9 months from the time a foreclosure lawsuit is initiated to when the foreclosure settlement conference procedures are completed. With regard to this approximate 9 month period, he stated “unfortunately…the mandatory settlement conferences have not been the timely and efficient forum for foreclosure resolution that was once envisioned.” He went on further to state “for borrowers that are already at the end of their rope, any interruption – let alone nine months of start – and – stop delays – can be the death knell to any chance of saving their home.”

New York Civil Practice Law and Rules section 3408(a)(1) requires both the homeowner and the financial institution negotiate in good faith. Lawsky finds that there is a lack of a clear definition of what is “good faith.”

Bank’s Representatives Having No Authority To Settle

In many situations, courts are confronted by bank attorneys appearing at foreclosure court conferences who do not have authority to enter into settlements or mortgage modifications with homeowners. In these situations the courts often simply keep adjourning the case until someone shows up who has greater authority to enter into mortgage modifications on behalf of the banks.

Lawsky believes the law creating foreclosure court conferences is flawed. He stated “the unintended consequences of this legal flaw are unproductive conference sessions, useless delays, waste of court resources, and most importantly, needless foreclosures.” Lawsky wants there to be new legislation which will define what negotiating in good faith means to both homeowners and financial institutions. He also feels courts should have greater authority to impose sanctions on the parties to these proceedings who do not negotiate in good faith.

Zombie Homes

Lawsky feels there is a special problem in the courts with the processing of foreclosures on “zombie homes”. Zombie homes are homes which have been abandoned by the homeowners. These homes create a blight in communities. They are vacant. Sometimes they are vandalized. Vandals remove the pipes from these homes. Lawsky wants the foreclosure process on vacant homes to be streamlined to allow them to be expedited. Lawsky has specifically suggested a new non-judicial process for either uncontested foreclosures or foreclosures on vacant homes be established.

Courts Flooded With Foreclosures

Approximately one-third of all the cases brought before the Supreme Court Civil Parts throughout the State of New York are now foreclosure cases.


The foreclosure process should be set up in a manner to help homeowners who have the wherewithal to keep their homes and obtain mortgage modifications.foreclosure defense attorney in New York

The Note and The Mortgage

foreclosure and real estate lawyer in New YorkIf you have purchased a home and financed it through a financial institution, you attended a closing. At that closing, you executed numerous documents. One of those documents is the note. The note is simply an I owe you. The note basically states you are borrowing money from a lender and you promise to pay it back. The note includes the terms of repayment, interest rates, the term of the loan and information concerning late charges and other issues.

The Mortgage

The mortgage and note are two separate documents completely. The mortgage is an agreement which allows the financial institution, who is the lender concerning your property, to have a security interest, or lien, on your property. Another way of looking at the mortgage is you pledge your home as collateral to secure the financial transaction which allows you to buy your home. If the bank does not get paid, they go after the collateral, to wit, your home, to take it back and sell it at auction to repay the note which documents the loan you took from them.

New York foreclosure defense attorney IslandElliot S. Schlissel is a foreclosure lawyer. He has helped hundreds of New Yorkers stay in their homes. He fights foreclosure lawsuits throughout the Metropolitan New York area and helps his clients obtain mortgage modifications. Elliot and his staff of attorneys can be reached 7 days a week.

Ocwen Financial Corporation Fined $150 Million Dollars

foreclosue lawyer for homeownersOcwen Financial Corporation, the largest sub prime mortgage servicing company in the United States, has entered into a consent order with the State of New York to pay $150 million dollars to New York homeowners and to modify and reform its practices concerning the servicing of mortgage obligations. The settlement was made with the Department of Financial Services of the State of New York.

Payment to Former and Current Homeowners

The terms of the settlement require Ocwen to pay $50 million dollars in restitution to both current and former homeowners who had dealings with Ocwen. Ocwen is to pay $10,000 to each homeowner who lost their homes pursuant to a foreclosure proceeding since 2009. In addition, Ocwen had to pay a $100 million dollar civil penalty by the end of December 2014. The State of New York is going to utilize these funds for foreclosure relief, housing for families whose homes have been foreclosed on and for community development purposes.

The $150 million dollar consent agreement with Ocwen was the result of an investigation between 2010 and 2011 concerning wrongful foreclosures, poorly documented foreclosure practices, “robo-signing”, the submission of inaccurate affidavits to courts, and sloppy, improperly maintained business records and paperwork.


In the event you are a homeowner whose home is currently in foreclosure or was foreclosed upon by Ocwen since 2009, you are entitled to compensation pursuant to Ocwen’s settlement with New York State.

foreclosure lawyer New York and Long IslandElliot Schlissel is a foreclosure defense attorney. He helps keep clients in their homes. He obtains mortgage modifications for clients and he fights for client’s rights in foreclosure lawsuits.

Question As To Whether Bank Possessed Note Before Starting Foreclosure Lawsuit

foreclosure defense lawyerWells Fargo brought a foreclosure lawsuit against defendants in a Supreme Court Foreclosure Part in Kings County. The case was before Supreme Court Justice Carolyn Demarest. Wells Fargo eventually brought a motion to strike the defendant’s Answer and for summary judgment. The bank’s moving papers in the motion stated the defendants did not make a single payment on the note. The default was more than nine years old.

Note And Mortgage Assigned On Numerous Occasions

Justice Carolyn Demarest looked into the fact the note and mortgage had been assigned many times. Upon close examination she found all three assignments were assigned by a single person. This individual was identified only as an “authorized signator”. There was no explanation as to which entity the person was working for at the time he signed all three assignments. In addition, the bank alleged it had physical possession of the note before the commencement of the action. However, the judge found there was no explanation in the affidavit submitted by the bank’s servicer as to why assignment number three was dated more than a month before assignments one and two.

Bank’s Standing to Foreclose Challenged

The homeowners challenged the bank’s standing to proceed on this foreclosure lawsuit. Justice Demarest in her decision stated, the bank claimed the physical possession of the note, in and of itself, gave it standing at the time of the commencement of the lawsuit.

Summary Judgment and Motion to Dismiss Denied

Justice Demarest found the defendants had raised an issue of fact with regard to whether the bank actually had possession of the note before the action was initiated. Based on this, she denied the bank’s motion for summary judgment and to strike the defendant’s first and fifth affirmative defenses.


It is clear the bank’s representations cannot possibly be true in this case. As stated most eloquently by William Shakespeare, “there is something rotten in Denmark.”foreclosure attorney on Long Island and New York City

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

foreclosure defense Filing the Summons and Complaint

The first step in the actual legal process in the court system involves the financial institution hiring a law firm which drafts a Summons and Complaint and files the Summons and Complaint in the County Clerk’s office of the County in which the home to be foreclosed on is located. Simultaneously with filing a Summons and Complaint most attorneys representing financial institutions also file a “Lis Pendens“. A lis pendens is notice to the world a lawsuit is pending in court involving the home. The lis pendens specifically tells all people who do a title search on the property the home is in litigation. This has a negative effect on the title to the home.

Service Of The Summons And Complaint

After the Summons and Complaint is filed, the attorneys for the financial institution receive an index number and a filing date for the Summons and Complaint. This is attached to the top right hand corner of the Summons. Thereafter, the attorneys for the bank hire a process serving company to serve the Summons and Complaint on the homeowner.

Methods of Service of the Summons

There are a variety of ways the service of the Summons can be made in the State of New York. The Summons can be actually put in the hand of the homeowner. It could also be left with a person of suitable age and discretion at their principle place of residence or place of business. In addition, the Summons and Complaint can be tacked to the door and mailed to the homeowner. It is extremely important the homeowner not ignore the Summons and Complaint. Once they are served they have twenty days to respond by filing an Answer with the court and serving a copy on opposing counsel, if served personally, and thirty days if served by any other means other than personal service.

After the process server serves the Summons and Complaint they draft an Affidavit of Service and file that Affidavit with the court.

Request for Judicial Intervention

The next step in the process is the filing of a “Request for Judicial Intervention”, which is commonly referred to as an “RJI”. The purpose of the RJI is to advise the court the lender’s attorney wants to schedule a mandatory foreclosure settlement conference.foreclosure attorney on Long Island and New York City

Foreclosure Defense in Valley Stream, Lynbrook, Baldwin, Malverne, Freeport, Oceanside, Long Beach, Elmont, Lakeview, West Hempstead, Hempstead, Merrick and Bellmore, New York

We represent individuals throughout the New York Metropolitan area with divorce and child custody, personal injury, car accident, wrongful death, estate administration, nursing home and medicaid issues

The information you obtain at this website is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your particular legal issue. This is attorney advertising.

This is attorney advertising. This website is designed for general information purposes only. The information presented on this website shall not be construed to be legal advice. If you have a legal problem you should consult with an attorney.

Copyright © 2018 By The Law Offices of Schlissel DeCorpo. All Rights Reserved.