Saturday, February 18, 2012

Notice of Motion for Summary Judgment (MSJ) and its role within the foreclosure process

Question: We have just received a notice that states that motion for summary judgment of foreclosure has been scheduled for hearing on a certain date. What does this mean and what is the next step in the foreclosure process? If the foreclosure entry is accepted by the court, what would be the next action taken by the lender? If the lender's solicitor goes to court on that date and the court sets the foreclosure sale, does the solicitor contact us and how long do we have before the foreclosure sale takes effect?

Response: If you have received Notice of Motion for Summary Judgment (MSJ), that means that you put an answer to the complaint and now the attorneys for the bank are trying to tell the judge that there are no issues of fact to be decided by the jury, only issues of law to be decided by the judge. Along with the MSJ, banks usually move the court for an Order of Reference, seeking the court to appoint a Referee, who would indeed conduct the sale. If you are fighting to save your home, then it is best to put in opposition papers to MSJ, where you should state why MSJ should be denied. You would need an experienced attorney, who could help you oppose and then possibly argue before the judge. Also, please note, that even if MSJ is granted by the court, the bank must then move the court by filing a Judgment of Foreclosure and Sale (JFS). Foreclosure auction cannot take place until JFS is granted and a sale is scheduled and you are put on notice of the sale (in addition to having notice mailed to you if you were served more than a year ago, notice gets published a number of times in a local newspaper). If you do not have sufficient time to consult an attorney before the next court date, you can always come to court and ask for an adjournment (typically first-time adjournments are easily granted).

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.
Copyright © 2013 Law Office of Svetlana Kaplun, P.C.


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Wednesday, February 15, 2012

Bankruptcy filing stalling the foreclosure process on my properties

Question: We filed for bankruptcy in first quarter of 2011 and it was discharged four months later. Two of our residential properties financed by different banks were named in the bankruptcy: 1) this property was financed through a mortgage from the first bank, 2) this property was financed through a mortgage and an equity line of credit from the second bank. Both lenders have not foreclosed on the properties yet. We tried to do a loan modification with the second bank, but ran into a roadblock. Since then we have decided to move on with our lives and let the banks foreclose on the properties. However, the banks keep on stalling the foreclosure process. Is there a "statute of limitations" that prevents the banks from foreclosing on our properties, because both properties were listed in the bankruptcy? At this point we would like the foreclosure process to move forward.  However since both properties were named in the bankruptcy, we are worried that banks will come back to us at some point and let us know that both properties are still our responsibility.

Response: Foreclosure can be a very lengthy process that could take a number of years, not just months, especially if you live in states that have experienced a lot of foreclosures in the last few years. In those states, courts are doing everything possible to slow down the foreclosure process to help save as many homes as possible. The date since you filed for bankruptcy is irrelevant here. The bank will foreclose on your home as soon as they can (legally and procedurally).  It will definitely be a quicker process if you do not oppose it. At the same time, you can perhaps try to do a deed-in-lieu of foreclosure, whereby you give up the deed to the house to the bank and that too could significantly expedite the process.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.
Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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