Legal Fees, Keeping Informed, and Other Information about New York Foreclosures

Here is some additional information you should consider when facing a foreclosure.

Comparing Different Ways of Paying Your Attorney

Some major banks made a mistake and it cost them $ billions. They purchased legal services for foreclosure actions from law firms offering the lowest fixed price (e.g., a single fee of $1,200 per foreclosure). As a result, the retained law firms did not do all the legal work they were supposed to do, creating delays and defenses, and the banks lost $ billions. The banks got what they purchased, which is less legal work than was required under New York foreclosure laws. The banks have stopped that practice.

Here are things you should know about paying for your defense:

  1. An inexperienced attorney is not a bargain even if he/she provides legal services for free.

  2. Court-sponsored programs of free assistance in preparing a "pro se" answer (i.e., an answer by the homeowner without the appearance of an attorney) seldom has the sophistication needed to raise the various defenses that should be raised and is often no more than a bare-bones pleading to avoid a default, but little more.

  3. a set monthly fee offered by some law firms comes with problems that could cause you to lose your home. Some of the most significant of these problems are:
    • The attorney is less inclined to obtain discovery, make or oppose motions, or spend more than minimum time on your case because the set fee is often earned by doing next to nothing and the additional work may be viewed by the attorney as work for which he/she won't be paid.

    • The attorney has a major incentive to prolong the foreclosure litigation for years, which is possible under New York law, so that the legal work is spread out over a longer period, but in doing so the unaid monthly mortgage payment continues to increase in amount -- at perhaps $700 to $3,500 per month -- and makes it increasingly difficult for the lender or its servicer to agree to an affordable loan modification (which usually forgives all past unpaid monthly amounts).

    • Loan modification applications made prior to the commencement of foreclosure action go through different hands (including processors located in India who are charged with finding fault and not allowing your application to be considered "complete" or to say that the bank has lost all or part of your application, and require you to resubmit items, often repeatedly; this does not occur as much when your application is given directly by your attorney to the attorneys representing the lender or servicer in the foreclosure action.

    • Your best chance of obtaining an affordable loan modification agreement is to apply quickly, shortly after the foreclosure complaint is served on you, which means that the lender loses less when giving you a loan modification agreement (which usually forgives all past due monthly payments).

  4. Contingent fee arrangements seldom work because if you keep your home with an affordable loan modification agreement (which ends the foreclosure action), you won't be receiving any payment from the bank; you may have very little available money to pay your attorney; and the attorney won't want a contingent 1/3rd of your home to (move in and) share with you.

Looking Over Your Attorney's Shoulder - A Good Thing - How It Can Be Done

There are four ways in which information about your case is available without having to go into clerk's office to look at the case files:

  1. New York State Unified Court System maintains its "ecourts" website for information about Supreme Court actions in any of the 62 counties, but only after a request has been filed for assignment of a judge or assignment to the Foreclosure Conferencing Part (called a "Request for Judicial Intervention" or "RJI"). You (as a non-lawyer) can find information about your case through a "guest search" by clicking on eCourt Guest Search.

  2. Certain documents (including e-filed documents) filed in New York County are available in New York County's SCROLL system. The SCROLL website states that providing a direct link to its website is forbidden without permission. If you search for "iapps.courts.state.ny.us" and "scroll" or perhaps "scroll" alone, you will be able to reach the website.

  3. e-filed cases. Not all counties have e-filing, and even where e-filing is available, it may be limited to certain types of cases, and even if a foreclosure action could be e-filed a plaintiff usually has the option of filing it by hard copy instead of by e-filing. In Queens County, for example, a foreclosure action Index Number beginning with "70" means the case is an e-filed case. You (as a non-lawyer) can find information about your case through a "guest search" by clicking on eCourt Guest Search.

  4. Privately-owned eWatch, requiring a subscription. As your attorney I could add you to the list of persons receiving updates about your case, so that you get the same information that I obtain court notices concerning your case.

The NY Statute Requiring the Plaintiff in a Foreclosure Action to Negotiate in Good Faith during the Mandatory Conferencing Period

Section 3408(f) of the New York Civil Practice Law and Rules ("CPLR") requires both parties to negotiate in good faith during the mandatory conferencing period that starts off a foreclosure action. This provision provides:

Rule 3408. Mandatory settlement conference in residential foreclosure actions

* * *

(f) Both the plaintiff and defendant shall negotiate in good faith to reach a mutually agreeable resolution, including a loan modification, if possible.

All types of loss mitigation techiques can be explored, including a short sale, deed in lieu of foreclosure, loan modification agreement, sale of the property through listing with a broker, purchase of the note and mortgage, walking away from the property after payment of "key money".

In the event one of the parties does not negotiate in good faith (such as by loss of documents, inordinate delays, mistaken denials of a loan modification agreement, the court can hold a "bad faith hearing" to determine whether bad faith took place and any sanctions that should be imposed, including dismissal of the foreclosure action with prejudice, possibly, upon a determination of bad faith negotiations by the plaintiff.

Attorney Carl Person - All 62 Counties - Call to Discuss Your Case

The cost of defending a foreclosure action could be substantially less than you have been led to believe. The cost of not defending a foreclosure action from the outset can be exceedingly high, including an unwarranted loss of your property.

Please give me a call right away, 212-307-4444, before you are late in answering the complaint, to discuss your case. Most foreclosures have meritorious defenses even though the homeowner in fact hasn't paid the mortgage for many months. New York law requires the plaintiff to comply with a lot of conditions it is entitled to foreclose, and by challenging the plaintiff appropriately you have a better chance of obtaining settlement, through a loan modification agreement. But this is less so when you have failed to respond to the complaint on a timely basis.

Additional Website for Attorney Carl Person:

Website for Attorney Carl E. Person.

For the c.v. (resume) of Attorney Carl E. Person, click on Carl Person C.V.

Carl E. Person, Attorney at Law
225 E. 36th Street - Suite 3A
New York NY 10016-3664

Call me at 212-307-4444 or email me at carlpers2@gmail.com and then follow up with a call to 212-307-4444.

Copyright © 2014 by Carl E. Person