Are You Facing Foreclosure in New York?
If you have been personally handed a “Summons and Complaint” or received something in the mail notifying you that you are facing foreclosure, such as a notice stating that “YOU MAY LOSE YOUR HOME,” you are most likely already facing foreclosure, or will be very soon. “Facing foreclosure” means that you are behind a few payments on your home loan and that your lender has begun, or will soon begin, legal proceedings to take your home and sell it at auction. The worst choice you can make is to do nothing! Roemerman Law can lay out all of your legal options, carefully explain the pros and cons of each, and help you to make the best possible decision for your situation.
Foreclosure is a complex area of the law, with many special laws and rules designed to protect the rights of homeowners. Too often, homeowners delay or fail to even appear in court and lose their homes without so much as a fight. If you do not defend your rights, you risk losing them! Other times, inexperienced lawyers agree to “take the case” without much foreclosure experience and do not make the best arguments, failing to understand the full range of options available to homeowners in a foreclosure case. Unfortunately, while in court waiting our turn to litigate, we’ve seen both happen — far too frequently.
Partnering with an experienced foreclosure defense firm like Roemerman Law maximizes your chances of a positive outcome, often for less money than a quick, undefended loss would cost — particularly after factoring in the cost of paying rent after a quick foreclosure versus staying at your home until the courts have reached a decision. Our professional team is dedicated to helping people like you. We offer a wide range of litigation and non-litigation solutions, explaining each and allowing you to choose your best fit. These cost-effective approaches are focused on your specific needs and goals. Whether you want to try to stay in your home or delay the foreclosure as long as possible to get your finances in order before transitioning to new housing, we can help.
Foreclosure Litigation in New York
New York is a “judicial foreclosure” state. This means that your lender must go through the court system to seize your house and sell it at an auction. You can rest easy — Roemerman Law is comfortable in court and has represented many homeowners in litigation against the banks and other financial institutions.
After you have been “served a complaint” (given notice that you are being sued for foreclosure), Roemerman Law can defend your rights. This can mean assisting you in reaching a settlement with the bank where they excuse the past due payments, modify the terms of your loan (known as a “Modification”), and allow you to stay in your home at a new monthly payment that is often close to, or even less than, your previous payment. Defending your rights can also mean litigating to have the case dismissed, winning the case, or, at minimum, slowing down the foreclosure process to buy you time to plan your next move.
If you have been served with a foreclosure complaint or received something in the mail that has you worried, please call us and allow Roemerman Law to help you fight back and defend your rights as a homeowner.
New York Foreclosure Basics
New York is a “judicial foreclosure” state, meaning the foreclosure process is court-supervised. This, along with an elaborate web of laws and rules designed to protect homeowners’ rights, gives people facing foreclosure a number of options, most of which do not involve quickly losing their homes. This complex area of the law is best navigated by a seasoned foreclosure defense attorney/firm, such as Roemerman Law. We will walk with you every step of the way to achieve the best possible result for you.
Losing a home is nothing like buying one. The purchase process for a buyer usually involves a realtor, mortgage broker, and an attorney. It is a personal process that affords buyers plenty of resources and options. The foreclosure process, by contrast, is cold and impersonal, beginning with the service of a “summons and complaint” that lets the homeowner know (s)he is being sued to take their house and sell it.
The callousness of this process is seen when applying for a loan modification where a homeowner rarely speaks twice with the same person representing the lender. When the homeowner does speak with a representative, the rep usually just makes general statements about the loan modification process and requests the homeowner send in certain documents. The process, often, does not answer many of the homeowner’s questions.
Going to court can be even more daunting, as an inexperienced pro se (Latin for “for oneself,” a party unrepresented by a lawyer) litigant can be overwhelmed and intimidated by the formal processes of a courtroom. Additionally, foreclosure is a complex area of the law, meaning that pro se litigants, and even inexperienced lawyers, have a large learning curve to overcome before offering a sufficient defense.
What to Expect During Foreclosure Litigation
After a single missed payment, a lender will send a “Demand Letter,” which informs the borrower/homeowner that the borrower is “in default” (meaning the homeowner has missed a payment) and gives an amount due, any late charges, and a date by which to pay to bring the loan current. The lender also usually warns that, if the amount in arrears (unpaid, overdue) is not paid by this date, the lender will “accelerate” the loan, meaning the lender asks for the payment of the full amount of principal owed.
Next, a lender will send the “Pre-foreclosure Notice,” which must warn that “YOU MAY BE AT RISK OF FORECLOSURE.” While this may occur after the first missed payment and accompany the first Demand Letter, it is often not sent until after two or three payments have been missed, and is included with a second or third Demand Letter. This notice should also contain a list of at least five local non-profit agencies to contact for aid, be in 14-point type, and meet several other legal requirements. After mailing the Pre-foreclosure Notice, the lender must wait at least 90 days before commencing a foreclosure action (lawsuit) against the homeowner, which will seek to seize the home to sell at auction to satisfy the unpaid portion of the loan.
After the legally-required 90 days have passed, the lender will file a lawsuit (“commence an action”) with the county court in which the home is situated by filing a “Summons and Complaint.” The summons simply informs the homeowner that (s)he is being summoned to court to answer a “complaint” against him/her, namely that the payments on the loan are past due. The lender must “serve” this on the homeowner, often referred to as “service of process,” to give the homeowner notice that (s)he must appear before the court to “answer” the complaint against him/her.
The requirements for service are complex and often litigated but, if you have received a Summons and Complaint in New York, you have a narrow window of opportunity — either 20 days (if handed the Summons and Complaint personally) or 30 days (if it was handed to a competent family member, placed on your door, mailed to you, or you saw it in a local newspaper). TIME IS OF THE ESSENCE! If you fail to properly appear before the court within the required time, a “default judgment” may be entered against you. A default judgment just means that one side failed to appear and the other side is given the easy, unopposed win, like a forfeit in sports, with no chance to revisit the issues. Default judgments are very difficult to overcome. Too often, while in court for our clients, the people of Roemerman Law see other cases with no attorney or homeowner present that suffer this unfortunate fate.
Possible Solutions
Being represented by an experienced foreclosure attorney offers you several, much better, alternatives.
First, you may be able to settle with the lender on a “modification,” where you mutually agree to reduce your interest rate, forbear or defer the delinquent amount (put off paying the past due amounts until the end of the loan), reduce the principal, or otherwise change the terms of your original loan, allowing you to stay in the home (see also, Loan Modifications).
Second, you may be able to have the case dismissed for a failure to properly serve you with the Summons and Complaint, a deficiency in the lender’s filing, or some other reason. This is a small win, as your loan is likely still in default, but it does delay the possibility of losing your home.
Finally, Roemerman Law can litigate the case for you, exhausting all options. At a minimum, this delays the time to foreclose versus a default judgment. This buys you precious time to recover from a disability, find a new job, give up the house in some manner other than by a foreclosure judgment, and/or arrange your finances before moving. In a small percentage of cases, the lender is unable to prove the homeowner defaulted on the loan, that the lender is the party owed under the loan, or some other fact that gives the homeowner the right to retain their home.
Roemerman Law has argued all three options, modification, dismissal, and full litigation, for clients. We can help guide you, given the specifics of your case, toward the best possible resolution, giving you the peace of mind to know that you fought to defend your rights and obtained the best possible result, given your personal circumstances.
Mortgage Fraud
Buying a home is an exciting time for most families. Unfortunately, there are those who would take advantage of that situation. These individuals often intentionally set buyers up for failure. Typically, families do their best to make regular payments and otherwise live up to the financial promises they made. This approach may work for several months or even several years. But, eventually, everything falls apart.
Predatory Lending and Mortgage Fraud
In the early 2000s, many large lenders blatantly targeted lower-income and poor-credit families, women, and minorities in widespread mortgage fraud scams. The same thing happens today, but the scams are different and more difficult to detect. Some common ones include:
- Insurance Packing: Insurance is a good thing, right? That’s generally true, but many unscrupulous mortgage brokers turn smart financial planning into a benefit for themselves. The broker may add insurance clauses that are really not necessary. These payments add several percent to each installment payment.
- Bait-and-Switch: Brokers promise a certain interest rate or certain loan terms, and then offer something different.
- Prepayment Penalties: These excessive fees essentially make it impossible to refinance the house, so the homeowner is stuck with the original terms to which they agreed for the life of the loan, without any real option to refinance.
- Balloon Payment/ARMs: Adjustable-rate mortgages (“ARMs”) have skyrocketed. In these, the homeowner is asked to make low, interest-only, payments for a period of years, then make a “balloon payment” at the end, for the total amount of principal owed.
- “Robo-signing”: Third-party signing of an affidavit saying the original lender had assigned the note/mortgage to the foreclosing lender and that the foreclosing lender possessed the note. These affidavits were not verified, meaning the person signing them had no idea of whether or not the lender owned the note, yet signed the legal equivalent of an affidavit attesting to the lender’s ownership of the note. The person signing would simply sign thousands of documents a day, signing, flipping, and signing the next one, without checking any of the facts to which they were swearing. The hurried and robotic manner in which they did this was dubbed “robo-signing” and, while the practice was supposed to end in a 2012 settlement with 50 Attorney Generals, we have seen the practice continue well after that date.
Foreclosure Defense Strategies
Many people erroneously believe that foreclosure is inevitable once the bank files legal paperwork. However, foreclosing on a home loan is not like toppling over a line of dominoes. Just because the first one falls, that does not mean the rest will fall in order.
Pathway to Successful Negotiation
At Roemerman Law, we approach settlement negotiations the same way we approach litigation matters. We aggressively stand up for your rights.
However, an assertive posture is not enough. Preparation is usually key to a successful outcome in settlement negotiations. So, before we meet with the bank’s lawyers, we do our homework. This research includes knowing the parties involved (all of the bank’s people), the facts of the case, the applicable law, and any relevant industry standards.
We work to achieve results for our clients and make sure they are given their best chance to save their homes.
Every successful athletic and legal contest begins with a good game plan. For a free consultation with an experienced foreclosure attorney in New York, contact Roemerman Law, P.C. today.
