Thursday, November 10, 2016

ATTEMPT TO DEMONSTRATE STANDING FAILED BECAUSE THE SUBMITTED AFFIDAVIT DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE; AFFIDAVIT SUBMITTED IN REPLY PAPERS CANNOT BE CONSIDERED.


The Second Department determined plaintiff loan service did not demonstrate standing to bring this foreclosure action. The affidavit submitted by the plaintiff did not meet the requirements of the business records exception to the hearsay rule. An affidavit submitted with the reply papers could not be considered: “…[T]he plaintiff relied on the affidavit of Jaclyn Holloway, an assistant secretary of Nationstar Mortgage, LLC (hereinafter Nationstar). Holloway alleged that, after the action was commenced, the plaintiff delivered the note to NationStar. She alleged that, ‘pursuant to the business records of [the plaintiff],’ the plaintiff had physical possession of the note when it commenced the action. However, the plaintiff failed to demonstrate the admissibility of the records relied upon by Holloway under the business records exception to the hearsay rule (see CPLR 4518[a]) since Holloway did not attest that she was personally familiar with the record-keeping practices and procedures of the plaintiff ... . Consequently, Holloway’s allegations based on those records were inadmissible ... , and, therefore, insufficient to meet the plaintiff’s prima facie burden to establish its standing ... . The plaintiff could not rely on the affidavit of its vice president to meet its prima facie burden since the affidavit was improperly submitted for the first time in its reply papers ...”. . Aurora Loan Servs., LLC v. Baritz, 2016 N.Y. Slip Op. 07154, 2nd Dept 11-2-16

Tuesday, October 18, 2016

A.G. Schneiderman Announces Nearly $13 Million In Awards For Cities To Combat Vacant And Zombie Homes

A.G. Schneiderman will forward approximately $350,000 to NYC to help combat "Zombie Homes". These grants are awarded under the Zombie Remediation and Prevention Initiative. Under the passage of the Abandoned Property Neighborhood Relief Act in June 2016, banks are now required to register any properties abandoned by their customers with the Department of Financial services. If you've ever lived next to an abandoned property you'll surely appreciate this act. Unfortunately there are now approximately 16,000 Zombie homes across New York State. So, odds are you've either seen them in your neighborhood or unfortunately live next door to one. 

Thursday, October 6, 2016

New Legislation Allows Defendant Participating In Foreclosure Settlement to File Late Answer

A new rule will be put in place starting December 20, 2016 that will significantly help home owners in foreclosure. Borrowers will now be permitted to file an answer (late) after their time to answer has expired. An "answer"  (in response to the summons and complaint) is required to be filed in writing within a certain amount of days according to how the summons and complaint was served (delivered) to the borrower. If delivered by process server the answer must be filed within 20 days. Delivered in any other way and the borrower gets an additional 10 days (30 days total). The new rule will give borrowers 30 days to answer AFTER the first Foreclosure Conference (court hearing). At the first Foreclosure Conference the court will provide the borrower with a 'Consumer Bill of Rights" handbook.       

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JP Morgan Chase (JPMC) commenced this residential mortgage foreclosure action on June 8, 2016, and while Hernandez did not answer, she appeared at all five subsequent foreclosure settlement conferences. The case was released from the settlement conference part March 15, 2016, and she filed an answer March 30, 2016, but JPMC rejected the answer on April 8, 2016. But, the court noted that effective this coming December 20, 2016 under CPLR 3408, mandatory settlement conference in residential foreclosure will be amended. The court sated the intent of the new legislation was to allow defendants in foreclosure actions—who were usually pro se litigations—to answer and participate in the foreclosure litigation. It stated here, Hernandez was served with the summons and complaint on June 18, 2016, and she fully participated in the foreclosure settlement process. Also, the court noted that within 15 days of the case being released from the foreclosure part, Hernandez filed her answer. Thus, the court stated based on the intent evidenced by the new legislation, the fact Hernandez participated in the litigation, and JPMC would not suffer any prejudice in permitting her to file a late answer, her motion to file the late answer was granted, and her answer deemed served.


Click HERE for full decision.

Friday, September 30, 2016

Recent Efforts to Speed Up Foreclosure Proceedings in N.Y.

New York now boasts one on the longest time-frames to foreclose in the country. It now takes  an average of 1,061 days to foreclose. Seems part of the delay may be cause by re-defaults of those borrowers whose loans were modified. It appears though that the Foreclosure Settlement process may be helping somewhat. Part of the reason appears to be now borrowers are "required" to bring all of their financials to the first court appearance. This will give the bank a quick view of the borrower's finances to see if a modification is possible. The best part of this, at least for the banks anyway, seems to be that vacant properties can now move quicker through the foreclosure process. This in turn will allow the banks to sell these properties sooner. If you've ever lived next to a "Zombie Home" this is welcome news.

THE FULL ARTICLE CAN BE FOUND HERE: http://www.newyorklawjournal.com

MOTION TO DISMISS RPAPL ARTICLE 15 ACTION SEEKING DECLARATION MORTGAGE INVALID DENIED

Plaintiffs owners commenced this RPAPL Article 15 suit seeking judgment declaring the mortgage of record held by defendant was invalid and unenforceable and barred by expiration of the six-year statue of limitations. Defendant moved to dismiss the complaint based on a defense of documentary evidence and failure to state a cause of action on the grounds plaintiffs' hardship affidavit served to re-start the statute of limitations and defendants stopped the limitations period running upon revocation of its election to accelerate plaintiffs' loan by its de-acceleration letter. The court found defendant improperly sought to rely on the de-acceleration letter as a letter was not documentary evidence, nor was the court persuaded it conclusively established a defense. The hardship affidavit also failed as it did not conclusively establish a defense to this Article 15 action—it did not conclusively establish the foreclosure action was not barred by the statute of limitations. As the affidavit did not utterly refute plaintiffs' claim that any effort by defendant to foreclose plaintiffs' underlying mortgage obligation would be barred by the limitations period, and defendant failed to establish a defense warranting dismissal of the complaint. Defendant's motion was denied.

The full text decision can be found here: http://www.newyorklawjournal.com/id=1202766377597




The New 90-Day Notice Rules: A Potential Morass for Lenders

New changes are headed our way. Changes that could help New York  borrowers delay the beginning of the foreclosure process. After the collapse of the mortgage markets in 2008 various new pieces of legislation were put  into place to help and protect homeowners. One of the more outstanding was the "90 Day" requirement notice. The 90 Day Notice is more like a pre-foreclosure notice or warning letter. The main idea here was to "wake up" the borrower and tell them they had 90 Days to get it together and work out a deal with their lender or the foreclosure process would begin. Here's a quick overview of the new changes:

-Notice to be provided in the borrower's native language (provided that it falls within the six most common languages spoken in New York)

- Notice will now state the borrower can remain in the property until a court order states you must leave (this was always the case)


- A new notice is required if a borrower makes the loan current and then stops paying again



- Lastly, and more importantly the new 90 Day Notice states that the foreclosure process can only begin if the borrower did nothing during the 90 day period to resolve the missing payments. 








The full article can be found here: http://www.newyorklawjournal.com


NY's Statute of Limitations and Mortgage Foreclosures: How to Revoke Acceleration

The good news for borrowers is that banks have only a certain amount of time to foreclose in New York (six years). The bad news? Seems bankers and their attorneys may have figured out a way to extend this time. What can bankers do? They can simply "take back" or revoke their request to have the borrower pay the entire loan in full (acceleration of the loan) by sending a letter to the borrower stating just that.

The full article can be found here: http://www.newyorklawjournal.com

Thursday, September 1, 2016

Thinking About Filing For Bankruptcy?

There are many pitfalls to avoid when filing for bankruptcy that consumers need to be aware of and understand . To help avoid these problems you should hire only a competent attorney specializing in bankruptcy law.  Because one small error or misstep may cause your case to be dismiss (instead of discharged). 

Did you know your credit score takes a major hit when there are judgments and liens? In fact, it stays on your credit for seven years! This alone should be a reason to avoid judgment and liens. Consider too that because of the ding on your credit you may also pay a  higher interest rate when borrowing for mortgages, car loans/leases, etc.

If you have two mortgages (on the same property) and you're home is financially under water (you owe more than what your home is worth) filing for bankruptcy may help to eliminate (or "strip away") your second mortgage. Here's something else to think about. Did you know you could file for bankruptcy and still lose your home? Most people don't.  Just another reason why you need a competent bankruptcy attorney. 

Bankruptcy is not the answer to all financial problems. There are certain judgments and liens where bankruptcy may not help. This may include IRS liens, NYS tax warrants, mechanic liens and domestic support judgments. Most taxing authorities will allow you to work out a payment plan. It may be worth a shot to try and work out a deal as opposed to doing nothing and having a tax lien/warrant.

Should you ever be in the position where you need the guidance of a bankruptcy attorney be certain to hire a competent one who's expertise is bankruptcy. This is not the time to hire a "jack of all trades" attorney. Like foreclosure defense (consumer law), bankruptcy law is a very specific area of law.