New York Law Protects Homeowners More than in Any Other State - Don't Lose This Protection
A quick introduction. I am Carl Person, a commercial litigator in New York since 1970, and almost exclusively defending foreclosure actions since 2008. I have a team devoted to getting favorable results in defending residential as well as commercial foreclosure actions (although no results are ever guaranteed). I'm so concerned about foreclosures and the ever-increasing concentration of our economy that I'm running as a candidate for New York State Attorney General in the coming 2014 election. I also ran for this office in 2010, and came in third. I have the kind of background that enables me to mount a substantial defense on behalf of my clients. Please remember that each case is different and has to be defended on the specific facts of the case. I'm a graduate of Harvard Law School and a graduate of Long Island University.
WHEN THREATENED WITH FORECLOSURE - HIRE A LAWYER NOW, NOT TOMORROW - A DELAY OF ONE OR TWO DAYS COULD CAUSE YOU TO LOSE YOUR
When you receive a Notice of Intent to Foreclose or a letter of acceleration of your mortgage debt, the foreclosure process begins. Make sure you retain an experienced attorney to take you through the entire process, which can last for many months or years, while you remain in your property.
By failing to retain a lawyer, you will probably lose your home, in months rather than years. So, don't be penny wise and pound foolish. Hire a competent lawyer right away, and you'll probably spend a lot less and have a substantially better chance of saving your property from foreclosure.
Why New York State is the Best State in which to Defend against a Foreclosure
You are very lucky to be facing foreclosure in any of the 62 Counties in New York State. New York law gives you more protection than any other state.
First of all, 28 states are classified as "non-judicial foreclosure" states, in which the owner of the homeowner's note and "deed of trust" sell the mortgaged property without commencing a foreclosure action, after giving notice to the homeowner about his/her failure to make the monthly payments. This occurs frequently even though the person selling the home can't prove that he is acting for the owner of the note.
New York is a "judicial foreclosure" state (there are 22 such states), and the best of all such states for being a homeowner facing foreclosure. Here are various reasons why:
- You can have several defenses arise months after the foreclosure action is commenced agaisnt you;
- The lender has an array of obstacles to overcome before the New York courts are permitted to let it foreclose and sell your home;
- A good foreclosure defense attorney can create (i.e., impose) costs for the lender equal to a substantial part (or even more) of the lender's investment in your property;
- The cost of obtaining the right to foreclosure often motivates the lender to give the borrower an affordable loan modification agreement as a way of stopping the legal costs and drain on the time of the lender's officers, employees and in-house counsel;
- New York has a mandatory mediation period (called "conferencing") which involves a duty on the lender's part to negotiate in good faith as to loss mitigation techniques that could enable you to remain in your home;
- This duty is also a duty on your part where you need assistance of a competent attorney, and the duty of you and the lender to negotiate in good faith during conferencing is enforceable by the court;
- You can stay in your property for years without paying your mortgage, although the longer you stay without paying the less likely you are to save your property from foreclosure;
- If for some reason you can terminate the lender's foreclosure action based on a technicality more than 6 years after the lender accelerated your mortgage debt, you keep your home free and clear of the note and mortgage (but don't believe this happens very often - the mere possibility of such an outcome will usually motivate the lender to give you a loan modification agreement with a low interest rate and/or a substantial principal reduction);
Additional Information the Homeowner Should Know about Foreclosures
Defending a residential (1-4 unit) or commercial mortgage foreclosure action requires an experienced foreclosure defense attorney if the myriad of rules, states, decisions, issues and facs are to be asserted or used most effecively in your defense.
A homeowner doesn't want an inexperienced attorney to make the hundreds of legal decisions that have to be made throughout the litigation, generally starting with the drafting of the 15-page to 20-page Answer with Affirmative Defenses, Offsets and Counterclaims.
An experienced mortgage foreclosure defense attorney can make these decisions more effectively, on the average, than an inexperienced attorney, and do so more quickly, so that the overall cost of representation should be less and the result substantially better, on the average.
There is no better way for a homeowner to select a mortgage foreclosure defense attorney than by speaking with him/her - in person or on the telephone. You should be able to tell which attorneys know what they are doing and those that do not.
I would like you to give me a call, so I can review your situation, determine your objectives, and outline what I propose to do for you.
Also, I have a video (my 122nd YouTube video) which explains how you should go about selecting an attorney. 122. New York Foreclosure Defense Strategy .
If you are already in the foreclosure process (having received a 90-day Notice of Intent to Foreclose (or letter of acceleration of debt), I'll email you a free copy of my 273-page eBooklet entitled HOW TO GET RID OF YOUR UNWANTED DEBT, which should be able to give you some ideas for scaling down your debt and keeping your home.
PLEASE GIVE ME A CALL, AT 212-307-4444.
Your Answer to the Foreclosure Complaint Is the Most Important Document You Will File in the Mortgage Foreclosure Action
I understand the value of a good answer with affirmative defenses and counterclaims (called a "pleading"), and for years have been advising clients about the importance of well-drafted pleadings. You may wish to look at an article I wrote a few years ago about the importance of well-drafted pleadings, see
Importance of Pleadings.
Various Statutes for You and Your Lawyer to Consider in Defending a Mortgage Foreclosure Action
There is an ever-increasing number of statutes that need to be considered when deciding how to oppose a specific mortgage foreclosure action.
Federal Statutes to Consider
- Truth in Lending Act ("TILA"),enacted in 1968, protects consumers in credit transactions
by requiring clear disclosure of key terms and all costs. See
Wiki on TILA
- Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§ 2601, et seq., which requires disclosure in advance of the amounts being received by various participants, including mortgage brokers, and prohibits the non-disclosed increase of the interest rate to cover the mortgage broker's fee; also, RESPA, 12 U.S.C. § 2605(e), requires the lender or servicing institution to acknowledge and respond to "Qualified Written Requests" ("QWR") by the homeowner relating to the loan, and stops the bank or servicing institution from issuing a credit report until the QWR is answered. RESPA and HUD's Regulation X need to be considered when new fees are implemented, when a bank establishes relationships with mortgage brokers or real estate agents, when responding to borrowers' complaints, and when administering escrow accounts; and care must be taken when affiliates conduct settlement services, to ensure that the correct information is being provided, and timely. Also, you must consider HUD's Regulation Z thereunder, which imposes strict requirements on lenders to protect consumers.
- Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq., regulates the collection,
dissemination, and use of consumer credit information. See
Wiki on FCRA
- Home Ownership Equity Protection Act, 15 U.S.C. § 1641(d), which provides that assignees of mortgage loans are subject to all claims and defenses under any law that a borrower could have asserted against the original lender, thereby eliminating any "holder in due course" defense to the defendants. See Vandenbroeck v. ContiMortgage Corp., 53 F. Supp. 2d 965, 968 (W.D. Mich. 1999)
- Various federal law permitting some troubled homeowners to refinance their mortgage loans through a variety of program including HAMP, HAMP-II, and HARP. See HUD Website Describing Various Mortgage Relief Programs for Homeowners.
State Statutes to Consider
- New York McKinney's General Business Law § 349 prohibiting deceptive acts and practices. See
GBL Section 349
- New York McKinney's General Business Law § 350 prohibiting false advertising, an exceedingly
short but powerful statute which states the following:
False advertising in the conduct of any business, trade or commerce or in the furnishing
of any service in this state is hereby declared unlawful.
- New York McKinney's Banking Law, §§ 6-I(d) and 6-I(g), sometimes called the "High-Cost Home Loans Act"; the New York
statute is comparable to Missouri's Second Mortgage Loan Act ("SMLA"), Mo.Rev.Stat. §§ 408.231-.241, which prohibits certain fees in home mortgage transactions
- New York McKinney's General Business Law § 340, New York's Antitrust Law, known as the New York Donnelly Act
Foreclosure Discussion Continued
Consultation - No Fee, No Obligation
My initial discussion is without charge.
To discuss your problem by telephone, please call me at 212-307-4444.
I represent homeowners in foreclosure actions throughout New York State, and frequently use local attorneys to make court appearances at the lowest cost for clients.
Attorney Carl E. Person
225 E. 36th Street - Suite 3A
New York NY 10016-3664