Defense Against Foreclosure

Receiving foreclosure documents is one of the most stressful financial occurrences in the lives of a lot of Americans. It can be very stressful and difficult to deal with banks who are unwilling to cooperate with homeowners or who won’t return their calls.
To go over your alternatives if you’re facing foreclosure, our firm provides a free consultation with a foreclosure defense lawyer. Regarding the foreclosure process, many people have many questions. Here are some frequently asked questions and their responses about the foreclosure procedure.

Frequently Asked Questions About Foreclosure

Answer: In most cases, if you don’t respond within twenty days, the bank will file a clerk’s default against you, which may result in the loss of your ability to defend yourself in court and hasten the process of having your home evicted from you.

Answer: The length of time may vary based on your defenses, but it is typical for people to stay in their homes for over a year while the foreclosure lawsuit’s legal proceedings.

Answer: The bank will typically be able to establish its case against you if you respond to a lawsuit in this way.

Answer: The asset (collateral) used to secure the loan is your home (note). They may file a lawsuit against you for the deficit (the difference) if the price at which they sell the house falls short of the amount you owe on the loan.

Answer: Filing for Chapter 13 bankruptcy will halt the foreclosure process and give you three to five years to make up missed payments. Filing for Chapter 7 bankruptcy will typically halt the foreclosure process temporarily; however, it will not end it entirely.

Answer: If you apply for Chapter 13 bankruptcy before your house is “sold on the courthouse steps,” you may be able to save your house under certain conditions.

Answer: In a short sale, the bank permits you to sell your home for less than the amount owed on the loan. But be careful—the bank frequently includes wording in the agreement that permits them to take you to court for the shortage.

Answer: Two important considerations are if this is your primary residence and how well your current financial position is doing. Getting a loan modification is more likely if the property is your primary residence, as opposed to a second house or rental.

Answer: Although there is some recent case law to the contrary, generally speaking, no. “On the courthouse steps” is how the house is sold. Typically, the bank purchases the home for the loan balance. It is not advisable to bet on someone else being able to purchase the house for more than you owe. Selling your home before the foreclosure litigation is resolved is the wisest course of action if you have a significant amount of equity in it.

Foreclosure Defense Approaches

We handle all types of defenses foreclosure defenses. In fact, there are several defenses to a foreclosure law suit, despite popular opinion. Some lawyers will say, “We can buy you a little more time” or possibly assist to help you reinstate or modify your mortgage.
However, during your free consultation, you will learn about the defenses available to you and your family; and, The Sicuranza Law Firm is here in and effort to win your case, not just to buy you and your family “extra time.”
The list of defenses that arises from (1) a mistake in the way your bank handled your mortgage or (2) an error made by the bank’s law firm is as follows:
RPAPL 1304 (2)
In addition to having extremely precise wording, this notification must contain an attachment that lists at least five nearby housing counseling agencies that have been approved by the US Department of Housing and Urban Development (HUD) for housing counseling.
A tidal wave of foreclosures swept into New York State Courts after the “Great Recession” hit in the summer of 2007. As a result, the banks were naturally obliged to provide the court with certain signed and even notarized paperwork. The big banks engaged low-wage workers and independent contractors to falsify these documents and sign them as though they were signed years ago after realizing that they often lacked the required paperwork. These assignments are not only incorrect and false (to the extent that they were not individually tailored to your particular mortgage); but, they are also ineffectual, which gives you the advantage in court, because they don’t address your particular situation. As an example, lets consider the following:
RPAPL 1303: Notice in Color
Should you receive legal documents in the mail, they (the lender) must have a notice on colored paper with a bold title and 14-point font for the notification’s content.
RPAPL 1303 governs every word in such notification, and it can only be one page long. If you don’t follow this legislation to the letter, you will have a good chance of winning your case.

"M.E.R.S." Stands for Mortgage Electronic Registration Services.

You could have enough evidence to prevail in your foreclosure case if MERS is involved. MERS is a complex topic not just because MERS is complex in and of itself, but also because the law is treating MERS slowly (in the wrong direction). If you take away nothing else from this explanation, simply keep in mind that you might be able to win your foreclosure case if MERS is connected to it in any way.
60% of all loans made now are handled by MERS, which is engaged in about 60 million mortgage loans. What is MERS, and why was it established? MERS was developed to help banks avoid paying a tax, namely one related to the assignment (or transfer) of a mortgage. The Banks transferred your mortgage to other firms, treating it like a stock on the Stock Exchange, a practice they eventually carried out. There was concern that the stock would lose value if companies had to pay this tax in order to purchase it. The Bank chose to just stop paying the tax as a way to allay this concern. Their approach was to name MERS the owner of your mortgage (on paper) and then just mandate that MERS maintain track of the dates on which your mortgage was transferred. Since the Banks never actually mailed these documents to MERS, it never actually owned your mortgage and, as a result, it never had the authority or capacity to assign your mortgage to other companies. The issue is that, according to actual law, only the person who physically and legally “holds” the mortgage papers you signed is the owner of your debt.
It was MERS’s responsibility to maintain track of who was the true owner of your mortgage once a bank listed MERS as the owner and turned your mortgage into a stock that was traded on the stock exchange.
Make an Appointment with The Sicuranza Law Firm for a Free Consultation Right Now!

The Note Defense Is Missing.

You should have signed two distinct documents—a mortgage and a note—when you signed your mortgage paperwork, either when you bought your house or when you refinanced for a lower rate.

Your bank may still foreclose even if they are unable to provide evidence that they are the owner of your mortgage. But, you can stop your bank’s lawsuit if they are unable to provide evidence that they are the owner of your note.

A comprehensive examination into any and all transfers of your mortgage is a component of the “Where’s the Note Defense.” A suitable assignment is a requirement for any mortgage transfer; the specifics of the assignment will determine what qualifies as a valid assignment. Certain assignments could require a power of attorney to be legitimate, while others would require many assignments. This is a complex matter, but it also establishes the legitimacy of the firm attempting to foreclose on your house.

Major mortgage lenders and other authorities reported many and widespread insufficiencies in foreclosure filings in various courts around the country during and after August 2010. These deficiencies include the following: the filing of notarized affidavits that fraudulently attest to such review and other crucial facts in the foreclosure process; the “robosignature” of documents by parties and counsel; and the failure of plaintiffs and their counsel to review documents and files to establish standing and other foreclosure requirements. If it is shown that the foreclosure procedures were filed and prosecuted improperly and had these flaws, participating attorneys may be subject to disciplinary action and other penalties. Attorneys and/or individual Plaintiffs are therefore required to certify, under penalty of perjury, that they have examined the foreclosure action’s records as well as other important details about the foreclosure process, and that they have verified the accuracy of these facts and documents.

You have a good chance of winning your case if your legal documents do not contain an affidavit from a Bank employee OR the Bank’s attorney specifically attesting to the accuracy of the records on file under penalty of perjury.

In the event that there are inconsistencies in the documentation of those transactions and your current bank differs from the bank that granted you the loan, you could have a case. For your house to be put into foreclosure, your bank must include all relevant parties. This defense is typically used in any situation when your chain of title may contain inaccuracies. If you don’t include the required parties, you could have a chance to win your lawsuit.

In certain foreclosure cases, the plaintiff bank is a trust. This basically indicates that a stock has been created out of your mortgage. “Securitized mortgages” is the term used to describe these mortgages.

The Securities and Exchange Commission (SEC) and the Federal Tax Code both impose stringent legal regulations on all securitized mortgages. The SEC must receive a unique Pooling and Servicing Agreement (PSA) from each security. Translation: The Trust must be governed by a written contract.

With the above being said, let’s go right to the essential part: each of these contracts has a clause stating that all mortgages must be allocated into the Trust within ninety days of the Trust’s creation. 

Your bank does not have the right to foreclose if there is no assignment made within the ninety-day PSA period that started on the date the trust was established. In this scenario, you could have a strong case.

This is where things become tricky, as I warned you, but there is hope:

A judge that oversees all Long Island trial courts rendered an effective ruling in June 2011 declaring that MERS is neither authorized or able to assign mortgages in line with its present business model. Translated: A bank may assign a mortgage to MERS, but it cannot merely name MERS as the owner on the document and then rely on MERS to maintain ownership; rather, it must go by the same regulations as any other business that receives or assigns mortgages. The court concluded its decision by noting that it was aware of the potential effects on the mortgage sector. The court’s opinion began, “This matter involves… whether such rules should be bent to accommodate a system that has taken on a life of its own.” However, the ease and expediency of lending institutions must not prevail above the law. This is not fair, especially to hardworking families trying to make ends meet who are not considering these families as real people and not just numbers.

We Will Strive to Address Your Particular Needs

At the Sicuranza Law Firm, we can help you identify and manage legal risks related to foreclosure actions against you. Our caring attorneys can provide guidance on foreclosure representation to meet your particular case.