New York Foreclosure Defense Attorneys
The maxim that a “man's house is his castle” is one of the oldest and most deeply rooted principles in Anglo-American jurisprudence. Weeks v. U.S., 232 U.S. 383 (1914). It reflects an egalitarian principle that embraces all levels of society. Everyone dreams of someday owning their own home. It a dream that a lot of people chase, and it is not an easy task to achieve in today’s market. Once the dream is achieved, it can easily be taken away. Problems can and do arise. You fall behind on mortgage payments. You default on the mortgage. Now the bank is contacting you and threatening to commence a foreclosure proceeding. You are now in over your head and your dream home is slipping away. When your dream home is at stake, procrastinating is not an option. You need to take action. You need to speak with a foreclosure defense attorney. You need to speak to one of the New York foreclosure defense attorneys at the Law Office of Dimitrios Kourouklis, Ph.D.
General Overview Of New York’s Foreclosure Process
If you are being sued for foreclosure, it is really important that you retain the services of an experienced foreclosure defense lawyer. The legal system is very difficult to navigate on one’s own. In the vast majority of cases, the homeowner does not have a happy ending. Thus it is important that you obtain the right legal representation. Contact a foreclosure defense attorney at the Law Office of Dimitrios Kourouklis, Ph.D. and save your dream home today. Below is a general overview of the foreclosure process.
The Lender commences a foreclosure proceeding in court: After waiting 120 days of delinquency and another 90 days after the pre-foreclosure notice, the lender can file a foreclosure lawsuit. The sale date has to be at least 45 days after the filing. Additionally, the lender has to file a notice that says that they properly served the homeowner with the proper documents.
Homeowner’s Answer to the Complaint: Once the homeowner is served with the foreclosure Summons and Complaint, and the accompanying financial assistance information, a timely answer is required. If the homeowner fails to timely interpose an Answer to the Complaint, the Court will issue a default order in favor of the lender. This default order will in essence approve the foreclosure auction. A timely answer is required. It’s best to consult a foreclosure attorney how best to respond to the Complaint that was received.
Meeting the Lender / Settlement Conference: The lender is required to file the proof of service with the Court. Within 60 days after this filing, both parties are required to meet for a Settlement Conference. At this Settlement Conference, the parties try to find an amicable resolution.
Settlement or Litigation: If an agreeable resolution can be reached, then the settlement process has begun. Once a settlement has been reached, the lender has to discontinue the foreclosure action with the Court within 150 days. However, if a resolution cannot be reached, or if you, the homeowner, failed to appear at the Settlement Conference, the foreclosure proceeding will continue.
Final Judgment/Auction of the Home: Both parties litigate their cases in court, and the judge comes to a final judgment after hearing both sides. If you don’t appear in court, the judge will default for the lender, and the auction is ordered. At this point, you have lost the case, and once the house is auctioned, you’ll be evicted from your home. The lender will sell the house to the highest bidder, mitigating their losses from the defaulted mortgage.
Right of Redemption: In New York, the Right of Redemption requires payment of the delinquent amounts any time before the sale is finalized. By paying the debt directly to the lender or the court, you, the homeowner, can halt the foreclosure thus saving your home. The delinquent amount includes the principal amount of the mortgage that is outstanding, the interest, and other affiliated costs, such as court fees.
Common Foreclosure Defenses
If you have to litigate the foreclosure proceeding, it is important that you raise the appropriate defenses to the foreclosure complaint. Choosing the right foreclosure defense may be very important if you and the lender are unable to reach a settlement agreement. For example, did the lender comply with New York State law because New York has several requirements that must be followed by the lender. Is the foreclosure proceeding in compliance with federal law? It is imperative that you have the right foreclosure defense attorney by your side so that you can choose the appropriate foreclosure defense. If you fail to raise the appropriate defenses at the time you respond to the Complaint, those defenses may be waived. Below we provide some common defenses that can be raised by the homeowner.
1. Lender violated Federal and/or New York State law.
If the lender didn’t follow the Federal or State laws regarding the foreclosure process, the sale can be set aside. These laws were enacted to protect homeowners from bank lenders. The administration wanted to minimize the risk of banks taking advantage of the everyday person.
That being said, there are numerous places that the lender could have gone wrong. Since the pandemic began, the first place to begin is asking if the COVID-19 moratoriums were followed.
The following defenses are also violations of the law. However, each of these defenses has certain nuances that need to be explained. Read through these explanations and ask for further clarifications during your free consultation.
2. Lender failed to make required disclosures prior to closing on the loan. E.g. – Did the lender’s pre-foreclosure comply with New York State law. Did the notice summoning you to Court comply with Federal and/or New York State law? Were you properly served with the Summons and Complaint.
Proper disclosures are required for a foreclosure proceeding. Lenders have to comply with the applicable Federal and New York State laws. These laws were enacted in order to protect the homeowner from predatory lenders. Lenders are not allowed to blindside homeowners with a foreclosure proceeding.
3. The Lender breached the loan contract.
4. Lender committed fraud and/or engaged in predatory lending practices.
Fraud is a very serious accusation, but lenders have a past record of being predatory against unassuming homeowners. One such example, would be if the lender coerced you into taking a loan that you could not have reasonably afforded.
5. Lender has no standing in court.
When you sue someone, you need to have standing in order to commence an action. Standing means that Plaintiff has the right to sue this person. Typically, a loan that is taken out by a homeowner from a lender does not stay with that lender. Often times, the lender will sell the homeowner’s note to another lender who will then seek to collect the mortgage payments from the lender pursuant to the terns of the loan agreement. in a foreclosure action, a lender may not have standing if it cannot establish that it is the rightful owner of that mortgage loan or note. If the lender cannot establish that it has standing to proceed with the action, the foreclosure action may be dismissed. However, this does not mean that the lender cannot commence another foreclosure proceeding. After a case is dismissed for lack of standing, the lender can take the appropriate steps to cure any defects and commence a second foreclosure action against you.
6. Lender lost the promissory note or mortgage.
As mentioned in the previous section, the lender has the responsibility to show that you owe them money. To prove this in court, the lender has to show the mortgage loan and other related paperwork with the promissory note or mortgage to show that you are responsible to paying back the monies owed to the lender. If the lender cannot meet this requirement, the foreclosure proceeding will be dismissed because the lender will be unable to show to the Court that it has been damaged by your failure to comply with the terms of the mortgage agreement. However, a new foreclosure could be commenced if the lender is able to locate the outstanding documents.
If you think any of the above defenses may apply to you, please consult a foreclosure attorney for further advice. Time may be of the essence.
Homeowner’s Responsibility During The Foreclosure Process
When the homeowner meet with their foreclosure defense attorney it is imperative that you provide the attorney with all of the documents and/or communications you received from the lender. It is important that you also provide the foreclosure defense attorney with a copy of the mortgage note and/or the loan agreement that was entered with the lender. It is also important that you provide the attorney will all records that you possess to establish a payment history to the lender.
During the course of the foreclosure lawsuit, the homeowner should always submit the documents that the Court demands. Although it may be a daunting experience to constantly submit the same documents over and over and over again, homeowners cannot and should not give up. This is your chance to save your home. Always follow the Court’s directions. If the Judge or Special Referee orders or directs a homeowner to provide tax returns, pay stubs, utility bills, leases, a release for your tax records, or any other set of documents by a date certain, do it. As much as you do not want to be a litigant in a foreclosure proceeding, the last thing you want to do is not comply with the Court’s directive and receive an adverse ruling.
If you are facing foreclosure, it is in your best interest to contact a foreclosure defense attorney immediately. Through proper legal representation you may be able to stay in your house for a significant amount of time while at the same time applying for a loan modification that makes financial sense to you. You may even win your Foreclosure case. Homeowners who need New York Foreclosure Defense Lawyer can rely on attorneys at the Law Office of Dimitrios Kourouklis, Ph.D. We will handle every aspect of your case – from start to finish. Without a defense attorney the bank/ lender has a distinct advantage and may remove you from your home in a very short time. Do not hesitate because time may be of the essence.
You can contact the Law Office of Dimitrios Kourouklis, Ph.D, at (929) 400-7608 or contact us via our contact form.