Legal Blog of Attorney Svetlana Kaplun

Sunday, June 26, 2016

Is Bankruptcy an Option for Tax Consequences from a Short Sale?

Question: My bank approved a short sale of my house. The difference between the sale price and the balance on my mortgage is $20,000. Will I owe income taxes on the difference? If I file for bankruptcy, will it make any difference?

Response: If you file a bankruptcy, your personal liability on the loan is discharged. However, if the property was your primary residence, there are laws in place to help avoid tax consequences. First, speak to your accountant and see if you need to consider a bankruptcy. Tax liability on $20,000 might be minimal, or it could be completely avoided. Bankruptcy should be your last resort and it may be easily avoided.

As a New York State Licensed Real Estate Broker, Attorney Svetlana Kaplun has the expertise to assist interested homeowners in all steps of the short sale process including: bank negotiation and short sale approval, property listing and sale.

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 © 2016 Law Office of Svetlana Kaplun, P.C.

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Mortgage Company that Bought my Loan is Threatening Foreclosure, although my Payments were Up-to-Date with Previous Company

Question: I have a mortgage with a loan service company, which back in 2012 purchased my loan from another mortgage company. The original mortgage company received two loan payments from me, cashed my checks electronically, however they were not applied to my loan. The new loan service company is claiming I am two months behind. Since the original mortgage company cashed my checks electronically neither I nor my bank have cancelled check copies to prove payment. I am unable to get any statements from the original mortgage company, and the loan service company refuses to accept copies of my bank statement which shows payments were made. I also included carbon copies of my checks that were sent. The loan service company is threatening foreclosure even though the payments were made.

Response: Try filing a complaint with your state’s financial agency and in your complaint, explain what transpired and then include copies of your bank statements with circled withdrawals as your exhibits. This way the file gets escalated and someone at the loan service company will be required to pay attention to what you are saying.

Friday, March 25, 2016

Is It Possible To Get the Home Back After It Was Sold In a Foreclosure Auction?

Question: My home was foreclosed on and the bank sold it at a foreclosure auction. Would it be possible for me to get my home back if we paid the bank the missed payments?

Response: Once the house was already sold, it is very difficult to reverse the foreclosure sale. If the bank is the one that purchased the property, you may be able to buy the property from the bank. It is, however, very unlikely that the bank will be willing to accept funds from you now to reinstate the loan. That option only works before the foreclosure sale takes place. Unless you can somehow bring an Order to Show Cause with the court to show that the case was somehow defective where the judge will reverse the foreclosure sale, unfortunately, you have no other recourse.

I Was Never Served Foreclosure Sale Notice, Can I Stop the Foreclosure Sale?

Question: My property is being put up for foreclosure auction in the next month and I was never served official paper by an agent of the law. What recourse do I have in stopping this action?

Response: I am not sure what you mean by agent of the law. You have to be mailed the Notice of Sale and the attorneys for the Plaintiff must file the Affidavit of Service with the court (within 10 days of the sale). If that wasn’t done, you can bring an Order to Show Cause to show the judge that service of the Notice of Sale or any other foreclosure-related motions were defective and that the foreclosure sale should be cancelled. The Judge is likely to stop the foreclosure sale but then the bank will re-serve the papers properly and the foreclosure sale will take place a few months later.

Friday, January 15, 2016

Doing a Short Sale on a Property that Has an Order to be Foreclosed On

Question: If a property has an order to be foreclosed on, can the owner still do a short sale?

Response: Essentially, the answer is yes but only if the bank agrees to put foreclosure on hold and the only way they will likely do that is if you send a contract of sale and a listing agreement. Once the bank receives it and starts reviewing it, they will then ask for additional documents but in the meantime, that is a way to stop the foreclosure sale.

As a New York State Licensed Real Estate Broker, Attorney Svetlana Kaplun has the expertise to assist interested homeowners in all steps of the short sale process including: bank negotiation and short sale approval, property listing and sale.

Options Other than Bankruptcy for Someone Who Can’t Afford their Property and Doesn’t Want to Keep It

Question: I want to know what the options are for someone who is considering filing for bankruptcy. I can’t afford the condo special assessments or the association fees. I am considering bankruptcy and concede that I will probably lose the condo. I understand that if I don’t pay the assessments or the fees I could be evicted. Would that be better or worse for me? I really want to know what options I have to turn this situation around. Is bankruptcy my only option? I have two loans on the condo. Any other options for someone who can’t afford their place and doesn’t really want to keep it?

Response: You can try to sell the property. Even if it’s a short sale, it is better than foreclosure or bankruptcy. In my opinion, bankruptcy should always be the last resort. If for example, foreclosure takes place and the bank is suing the person for deficiency, then bankruptcy is the way to go to get rid of the debt. HOA can’t evict an owner of the apartment (this is not a rental); they have to bring a foreclosure action, which can be quite lengthy in New York.

As a New York State Licensed Real Estate Broker, Attorney Svetlana Kaplun has the expertise to assist interested homeowners in all steps of the short sale process including: bank negotiation and short sale approval, property listing and sale.

Thursday, November 26, 2015

I Signed the Deed over to my Spouse to Avoid Foreclosure, Lost the Home Ownership and Remained on the Mortgage

Question: My house was going into foreclosure and I signed the deed to the house in lieu of foreclosure over to my wife. My wife has not lived in the house for 8 years. She was told by the court to sell the house, but instead somehow refinanced it for 44 years without telling me about it. She would not take my name off the original mortgage. Do I have the right to sell the house or any other rights? I don’t have the money to fight this anymore, please help!

Response: When you signed the deed over to your wife, you gave ownership of the house to her. It did not change the mortgage obligation you originally had. That’s why a quit claim deed was a must for your wife to modify the loan without your signature. At this point, you have no rights to the ownership of the house and cannot sell the property. The only way she can take your name off the mortgage is by refinancing the loan but since people in foreclosure have poor credit history, no lender will give her a loan and that’s why modification becomes the only option. It is very likely that your wife wanted to remove you from the loan just as badly as you wanted it but that’s not an option. Your wife did nothing wrong and if I were you, I would not invest money into fighting this. As long as the mortgage will be getting paid now, you will not be affected.

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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Deed-in-Lieu of Foreclosure for Seniors Overwhelmed with Home Payments

Question: We are seniors, living on a pension. We had our home on the market for over 3 years and we were unable to sell it. We can no longer keep up with the home payments and we need to go live with our son for health reasons. We were told that we can sign the deed to our home over to our lender. What would happen if we did that?

Response: If you have a clean title, you can do a deed-in lieu of foreclosure where the lender takes the deed to your house and you walk away mortgage-free. The only caveat is the potential tax consequences but if it’s your primary residence, there may be none. You would need to consult with your accountant. This depends on the amount of your mortgage in comparison to the value of your home and whether the lender has to forgive a lot of your mortgage debt. More likely than not, you will not face any tax consequences, especially since you are retired. It is a much better option than letting the bank foreclose on your property.

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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Sunday, October 18, 2015

I Paid Off My Mortgage in Full, Why Does Foreclosure Show Up on My Credit Report?

Question: Foreclosure proceeding were started on my house back in 2010. During these foreclosure proceedings, I was able to secure the funding to pay off the mortgage in full. This of course stopped the foreclosure proceedings. Can the mortgage company still put the foreclosure on my credit report? I am asking because I noticed it on my credit report recently.

Response: For the months that you did not pay and that you were in foreclosure, the lender reported you as delinquent. Once you become current or the loan is paid off, they have to notify the credit bureau of the updated situation. If they still report you as delinquent, you have to notify the three major credit bureaus of the error so can fix it.

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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I Purchased a Foreclosed Home Full of Problems, What Can I Do Now?

Question: I recently purchased a foreclosure in New York. The inspection did not note any major issues. Now the home is having issues that I can't afford to deal with, mainly concerning rodents in the attic and the ducts. Altogether I can’t afford to pay for my mortgage and the repairs. What's worse is, I can't cool my home on really hot summer days and I am suspicious that the contaminated ducts are making myself and my child sick. What can I do?

Response: Since you are now the owner of the previously foreclosed property, you can now only sell it to get rid of the property. You can’t reverse the foreclosure sale. You bought the property as is. That’s the disadvantage of buying foreclosures. You don’t truly know what you are getting yourself into.

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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Sunday, September 20, 2015

The Area I Live in is No Longer Safe, How Can I Walk Away from my Underwater Home?

Question: My house is under water by over $100,000. I don’t have a second home and I have just been discharged from Chapter 13 Bankruptcy. The area I live in is no longer safe. What would happen if I walked away from my home? Could I ever purchase another house?

Response: If you walk away now, the bank will initiate a foreclosure action against you and will take away the property unless you try to fight it. Foreclosure will negatively affect your credit score which in turn dictates when and if you can get another mortgage. Eventually your credit will heal and you will be able to get another loan but it may be quite a while from now. I would definitely recommend avoiding foreclosure and recommend doing a short sale, which will impact your credit a lot less and you will still be able to walk away from the “underwater” property.

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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How Can I Check if my Home was Sold at Foreclosure Auction and What Can I Do to Keep It?

Question: I own a home in the state of New York. The bank had a foreclosure auction at the court house and no one purchased the home. I expected to get a notice on my door to move out, but it has been 5 months since the foreclosure auction and nothing happened. I was told me to go to the county clerk’s office and see if the bank filed a new deed. I checked yesterday and the bank has yet to record a new deed and take ownership of the house. Something might be wrong. I would like to keep the house if possible. What can I do?

Response: It sounds like the foreclosure auction did not take place. You can check via e-courts, an electronic New York State court database, the notation next to the scheduled foreclosure auction date. If it says ANH (Auction Not Held), you will know for sure. If it says auction held, you can check with the Plaintiff’s attorney. If it’s been 5 months, it’s more likely than not that foreclosure auction did not occur. Once the foreclosure sale takes place, you become a holdover tenant and the owner must file an eviction proceeding, same as in Landlord tenant cases. Most of the time, it is the lender that owns your loan that purchases the property. In the meantime, if foreclosure did not take place, you can: (1) apply for a loan modification, which usually leads servicers to stop the sale at their own initiative to conduct a review; (2) file an Order to Show Cause to stop the foreclosure sale; (3) file bankruptcy, which will immediately stop the foreclosure sale even if it’s the day of the foreclosure sale.

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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Monday, August 24, 2015

Is the Bank Attempting to Claim an Interest in my Property by Paying Water and Property Insurance Bills After a Failed Foreclosure?

Question: A New York State Supreme Court Judge removed the notice of pendency, determined that the bank does not to have standing in the foreclosure matter and dismissed the bank’s foreclosure efforts after I submitted my motion to dismiss. However, after the judge made her ruling the bank began to pay the DEP/ NYC Water Board and New York Property Insurance bills eight years after the purchase of the house. (All of the papers are in my name, as well as, payment agreements and contracts state that I have not missed any payments or breached the agreements.) It appears that the bank is attempting to claim an interest in my property, even after the judge has determined they are not the Rightful Holder in Due Course of my Promissory Note. What is the best course of action to take in order to regain control of my property’s bills and interest?

Response: Your problem should be analyzed in several steps. First, by winning a Motion to Dismiss, your foreclosure case got thrown out, most likely without prejudice, which means, the bank can start the foreclosure process again. In New York, the bank has 6 years from the date of default to pursue its rights in foreclosure. The bank can also appeal the Supreme Court Judge’s decision. Most of the time, banks try to fix their problems with assignment of mortgage and restart the case. Assuming you got the case dismissed with prejudice and the bank can’t restart its foreclosure action, the bank can still sue you on the money you borrowed under the note as unsecure debt, where the bank can’t foreclose but can likely get a judgment against you and record it as a lien against your property. Taxes and insurance are often escrowed when you have a mortgage but the New York City water bill is not part of your escrow. What happens is that when you stop paying your New York City water bill, you owe money to the government and government always trumps bank’s interest in terms of foreclosing on the property. When New York City forecloses on the water bill, it is known as the tax lien sale. Banks, in order to preserve their position in the property, will pay the water bill to ensure that the New York City Water Board does not foreclose and cut the bank off. You can pay your water bill yourself to avoid a tax lien sale and thus avoid the bank having to pay it. That amount then becomes part of your escrow shortage and is split over your monthly payment. It doesn’t affect the court’s ruling regarding dismissal.

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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