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Elliot S. Schlissel is a foreclosure defense attorney. He can be reached at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.
Bank Delays Tolls Interest in Foreclosure Lawsuit
October 16, 2014 by
A homeowner by the name of Lucic brought an application before Supreme Court Justice Peter Moulton who sits in New York County. The motion in the foreclosure case was to stop the mortgage payments from accruing in the foreclosure lawsuit that had been brought against him concerning his condominium apartment. Justice Moulton took the position the 6.5% interest rate on the mortgage held by Bank of America was a bit high taking into consideration the current interest rate payments.
HAMP Application
Bank of America opposed the motion. They claimed they had reviewed the HAMP application submitted by Lucic and they denied it pursuant to the Freddie Mac HAMP guidelines. Justice Peter Moulton found the argument submitted by Mr. Lucic, that Bank of America violated New York Civil Practice Law section 3408. The bank had failed to timely and properly process his mortgage application for a loan modification. They also continually made demands for the same documents which had previously been submitted to the financial institution. The court took the position Bank of America had engaged in a “two year run around”. The court took into consideration Lucic had diligently and faithfully provided Bank of America with the information they requested on many occasions. The court therefore took action and tolled (stopped) interest from accruing on this foreclosure from April 1, 2010 through April 30, 2012.
Conclusion
Each and every week homeowners come into my office and they tell me the same thing. They submitted a mortgage modification application and the bank they were dealing with continually asked they resubmit the same information over and over again. Sometimes these submissions took place over a period of years. The reason why the mortgage modification process doesn’t work is the banks have refused to properly fund this program. By under staffing the program, and not setting up internal guidelines, they have frustrated individuals who apply for mortgage modifications. For the large majority of home owners seeking help, HAMP instead of helping them, frustrates them.
Lack of Standing Alleged in Pleadings
October 13, 2014 by
To watch today’s video blog, please click on the following link:
Elliot S. Schlissel is a foreclosure defense attorney. He can be reached by telephone at 516-561-6645 or 718-350-2802, or by email to schlissel.law@att.net.
The Impact of Foreclosures on the Rental Market
October 8, 2014 by
Please click on the link below to watch today’s video blog:
Elliot S. Schlissel is a foreclosure lawyer. He can be reached by telephone at 516-561-6645, or 718-350-2802 or by email to schlissel.law@att.net.
Squatters and Foreclosed Homes
October 2, 2014 by
Please click on the link below to watch today’s video blog:
Elliot S. Schlissel is a foreclosure attorney. He can be reached at 516-561-6645 or 718-350-2802. He can also be reached by email to schlissel.law@att.net.
Supreme Court Refuses to Appoint Temporary Administrator
September 18, 2014 by
Wells Fargo Bank had brought a foreclosure proceeding in August 2013 against Grotzer. Grotzer died on January 22, 2013. He was the sole owner of the property and the only person who signed the note and mortgage. Wells Fargo brought an application in the Supreme Court requesting the appointment of a temporary estate administrator. They took this action to avoid going to the Surrogate’s Court to appoint an administrator of the decedent’s estate. Their action was for the sole purpose of continuing their lawsuit for foreclosure of the mortgage.
Justice James Pagones sitting in the Supreme Court of Dutchess County denied their request. The judge took the position that Wells Fargo should commence a proceeding in the Surrogate’s Court under Surrogate’s Court Procedure Act section 1001 with regard to this case. The shortcut Wells Fargo’s attorneys sought to take was inappropriate. Even though this might delay the foreclosure case somewhat Wells Fargo still had to follow the appropriate legal procedures to maintain their foreclosure lawsuit.
Elliot S. Schlissel is a foreclosure lawyer representing homeowners throughout the Metropolitan New York area. He regularly sues banks to set aside mortgages and help keep his clients in their homes.
Chinese Home Buyers Invade the United States
September 14, 2014 by
Chinese home buyers are buying billions of dollars of real estate in the United States. They are now the largest international investors in the American real estate market. It is estimated Chinese home buyers spent in excess of $22 billion in real estate acquisitions during the past twelve months within the States of New York, California and Washington. California is the state with the most activity by Chinese home purchasers. This is partly because it is the closest state to mainland China. In San Francisco and Oakland, Chinese real estate investors have had a significant impact on inflating real estate prices.
Chinese Home Purchasers in New York
Chinese real estate investors are especially focused at buying high end properties in Manhattan. A significant portion of these acquisitions of real estate are not to be lived in by the purchasers. They are simply investments in property in the United States. To Chinese investors, owning property in New York is a safe haven for their money. These real estate purchasers also look at purchasing property in the United States as a means of diversifying their assets. A significant number of the Chinese people investing in the United States never see the property or actually come to the United States for the transaction. The transactions are handled through middle men on behalf of the Chinese purchasers. It is estimated less than 40% of the Chinese real estate purchasers in the United States involve families who plan on living on a full time basis in these homes.
Elliot Schlissel is a foreclosure defense lawyer. He represents New Yorkers whose homes are foreclosed on. He has been successful in keeping his clients in their homes, and in many situations, helping them obtain mortgage modifications. His office offers free consultations with regard to foreclosure issues.
Predatory Lending Explained
August 26, 2014 by
There have been numerous newspaper articles, stories on television and internet articles concerning predatory lending issues. There seems to be a lot of confusion as to what constitutes predatory lending.
Predatory lending refers to practices engaged in by banks, mortgage companies, mortgage brokers, real estate agents and title representatives which involve dishonesty. Most consumers do not have an expertise regarding obtaining consumer mortgages for residential property. Predatory lending practices take advantage of the lack of knowledge prospective homeowners have when they seek to obtain mortgages to buy a home or refinance an existing mortgage. Predatory lending schemes can violate both federal and New York State law.
Examples of Various Predatory Lending Practices
- Preparing paperwork for homeowners for loans they cannot afford to make the payments on.
- Obtaining false inflated appraisals on homes.
- Convincing prospective homeowners to lie on their applications with regard to inflating their income.
- Engaging in racial profiling and convincing minority individuals to take out sub-prime mortgage loans.
- Charging excessive fees and expenses for preparation of the paperwork with regard to a mortgage application.
- Quoting one interest rate or set of terms regarding a mortgage and then later charging a higher interest rate or additional fees and charges.
Auditing Loan Documents
One of the methods to determine whether predatory lending was involved in a transaction and/or whether the loan and the closing on the transaction were handled properly is to obtain a loan audit. Loan audits can provide documentation with regard to predatory lending issues, violations of truth in lending laws, violation of New York State banking laws, fraudulent practices and other unethical or illegal aspects of the mortgage transaction.
Loan audits can show a variety of improper and bad practices engaged in by a financial institution and/or other individuals involved in the mortgage loan process. Among other things, the mortgage audit can reveal fraud on behalf of the financial institution and/or its employees or agents, misrepresentation with regard to the terms and circumstances of the loan, breaches by the financial institution of the contractual obligations and a variety of other issues which can be utilized as a defense to a foreclosure lawsuit.
Conclusion
There has been a lot of predatory lending in the past five to ten years by financial institutions. Just simply alleging predatory lending was involved in a transaction is not enough. The facts and circumstances of predatory lending must be proven.
Defense to Foreclosure Lawsuit: Statute of Limitations
August 22, 2014 by
There is a statute of limitations in every state of the United States with regard to bringing a foreclosure lawsuit. If the financial institution which holds your mortgage does not initiate the foreclosure lawsuit within the statute of limitations period, a defense can be raised in your answer to the summons and complaint that the lawsuit is barred by the statute of limitations. The statute of limitations in the State of New York to bring a foreclosure lawsuit is six years.
Calculating Time Periods for the Statute of Limitations
The usual start of the running of the six year time period under the statute of limitations, in the State of New York, is from the time the homeowner made their last mortgage payment. For example, if the homeowner’s last mortgage payment was made January 1, 2010, the statute of limitations defense could be utilized by the homeowner if the foreclosure lawsuit was not initiated on or before January 1, 2016.
Statute of Limitations: An Affirmative Defense
Affirmative defenses are specific defenses to lawsuits which need to be plead in the pleadings of a responding party. In a foreclosure lawsuit, the homeowner must plead the statute of limitations and other affirmative defenses in their written answer which is submitted to the court and to opposing counsel. Failure to plead a statute of limitations defense or other affirmative defense in an answer acts as a waiver of that defense. Over the years I have had prospective clients who have come into my office and said to me things such as, the foreclosure lawsuit was illegal because it was initiated more than six years from the time they stopped making their mortgage payments. This is not true. As indicated earlier in this paragraph, the statue of limitations defense must be plead as an affirmative defense in an answer to the summons and complaint or else it is waived. Unfortunately in some of the situations clients have brought this up to me in, they had waived their right to submit the affirmative defense of statute of limitations.
Once the financial institution starts the lawsuit, the issue of the statute of limitations as a defense is no longer applicable. So if the foreclosure lawsuit is started four years after the date of default and it goes on for five years, there is no statute of limitations defense available. Once the lawsuit is started, it does not make any difference however long it takes to be finalized or resolved. The statute of limitations only applies to the first six year period.
Conclusion
If you think you have a statute of limitations defense, it is strongly suggested you contact an experienced foreclosure defense lawyer and discuss this issue with him or her and the best way to present it in your pleadings.
Filing Chapter 7 Bankruptcy and Keeping Your Home – Part I
August 15, 2014 by
Can you file a Chapter 7 bankruptcy, eliminate all of your debts other than your mortgage obligation, and still keep your home? The answer to this question is, yes! If you are current on your mortgage payments when you file your Chapter 7 bankruptcy, you may be able to protect the equity in your house, if any, by using the New York Bankruptcy Exemptions. You can file a Chapter 7 bankruptcy, eliminate all of your credit card debt, personal obligations, debts to lawyers, doctors, medical debts, money judgments, car repossession deficiencies, and all types of other personal obligations in the Chapter 7 bankruptcy.
After going through the bankruptcy and eliminating all of your debt besides the mortgage, you will be in a better position to make your mortgage payments. You won’t have all the other creditors calling you on the phone and sending letters demanding payments.
Chapter 7 Bankruptcy Trustee
When you file a Chapter 7 bankruptcy, the court appoints a bankruptcy trustee to review your case. The trustee reviews your petition and thereafter asks you questions under oath at a creditor’s meeting at the courthouse. The Chapter 7 bankruptcy trustee is interested in looking into whether you have property which can be sold to benefit your creditors. If the trustee cannot find property which is not protected by bankruptcy exemptions and has marketable equity in it, the trustee will close your case and not go after your property.
