Monday, December 24, 2012

Filing a "Pro Se" Motion to Have a Foreclosure Case Dismissed

Question: A foreclosure suit was filed against me in 2010. The home was sold through a short sale, with the involvement of the bank in late 2011. The price was within 90% of the mortgage amount and the bank waived any right to collect "shortages" in the suit they filed. When I checked with the court recently the suit is still active. Although there is nothing pending, no judge assigned, etc. What language would I use in a "pro se" motion to have the case dismissed?

Response: From your description, it appears that short sale took place approximately a year ago. At this point, the case is sitting in court without any activity. Because of the backlog of foreclosure cases, sometimes, it takes banks longer than generally anticipated to proceed with their action, or as is the case here, with the discontinuance. Once the property sells and the bank receives its proceeds (short sale cannot take place unless agreed by the bank), the foreclosure action must be discontinued and the bank will get to it sooner or later. If you wanted to bring a motion at your own initiative, you would have to be the one to file for the Request for Judicial Intervention (RJI), thus assigning a judge and then you could bring a motion. Alternatively, you could bring an Order to Show Cause to have the judge hear you out. Essentially, it would be a lot of time and effort on your part when the case is already closed.

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, December 16, 2012

Can Loan Modification or Refinancing be Offered to the Estate of the Deceased?

Question: My husband is listed on the mortgage of our home only, he passed away a few years ago, the bank will not refinance or let me assume the responsibility for the mortgage. I am on the title, if I let the home go to foreclosure will I be responsible for any tax issues. My home is under water by a substantial amount. I tried refinancing with my current bank and other lenders, but was denied several times as the lenders said that I am not the original borrower on the loan.

Response: Situations like these are very tricky. Your deceased husband signed the contract (note and mortgage) with the bank, therefore, he was the one in privity of contract with the bank. You are not in privity of contract with the bank and you have no rights to sign a new agreement, whether it would be a refinancing or a loan modification. Only the borrower can sign the new contract. So far, I have only witnessed one bank offer a loan modification to the Estate of the Deceased. Generally, that is not the case. Some banks will consider an assumption where you take over the original terms of the loan but you have to show qualifying financials. This does not work if you have no income, i.e., your income has to support the mortgage and any arrears, if applicable. If you want to stay in the house, the best option is to continue making payments as before until the loan is paid off unless you are already in default and can no longer reinstate the mortgage. Finally, if the bank forecloses on the home, you, personally, would not be responsible for the deficiency. However, the bank may go after the estate and in a case like yours, it could affect you similarly. As of recently, many banks have stopped pursuing deficiency judgments because it is very hard to collect that money from people who don't have much to begin with and lost their last assets. Whether they choose to pursue it or not, they do not waive that right.

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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Tuesday, December 4, 2012

Should I still be Responsible for a Surrendered Property through Bankruptcy?

Question: I filed for bankruptcy over a year ago in New York State; all of my debts were discharged. I opted to surrender my home. I have not heard from my bank since before the bankruptcy filing. I was unaware that I still owned the property until earlier this year when I was cited by the city for code violations. I fixed the problems, but do not have the means to continue to care for this property. It is currently unlivable. I recently received a notice of tax sale from my county. Can I sell this property? Will the county take it at a later date and sell it for taxes owed? I have doubts that my bank will ever get around to taking claim of the house. I tried to do a short sale and received many offers which were all turned down by my bank. They repeatedly lost paperwork and misdirected my calls. Once the bankruptcy went through last year I stopped trying.

Response: If you surrendered the property through a bankruptcy, then maintenance is no longer your responsibility. Trustee is the one who disperses the assets and maybe there is a delay, but considering that you willingly surrendered the property, it should no longer be your concern.

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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Thursday, November 22, 2012

Stopping Foreclosure When Time is of the Essence

Question: My house has been foreclosed upon. At no point during the proceeding did the bank produce, in spite of legal demands made upon the bank, an original copy of the promissory note and Deed of Trust. It is my understanding, under New York law, that a foreclosure cannot go forward without the original instrument. Nevertheless, in my case, foreclosure was allowed to proceed. I now have to vacate the property within two weeks. Please let me know any winning strategies to stop the foreclosure.

Response: Time is of the essence in a case like this. If there are faults with the procedural aspects of the foreclosure process, you need to consult with a professional attorney who would be willing to bring a Motion to Vacate Judgment of Foreclosure and Sale. Of course, you need winning arguments to actually get the motion granted. It is very important to do this as soon as possible because the more time goes by, the more prejudicial the outcome becomes to the bank and the chances of a favorable resolution become less likely. Good luck!

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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Thursday, November 15, 2012

Bringing Order to Show Cause with Temporary Restraining Order (TRO) vs. "Produce the Note" Suit to Postpone Foreclosure Sale

Question: My home has a pending foreclosure for next week. My lender is willing to modify my loan for a significant down payment, the full amount of which I will only have in two weeks. They are unwilling to extend my deadline for that long. Can I file a "Produce the Note" suit to buy me the extra time needed to complete the loan modification?

Response: Generally, when a foreclosure sale date is scheduled, the banks are unwilling to do a loan modification unless you can request to postpone the public foreclosure sale date. Whether they will consent or not is in the bank's discretion but they will generally agree to it if your loan modification process is active and likely to happen. Also, if the bank is unwilling to do that, you can bring an Order to Show Cause with a Temporary Restraining Order (TRO) through the court and have the judge make a determination on an emergency basis. Most likely, judges will grant these petitions, especially if you can show them good faith on your part in trying to save your home.

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, November 11, 2012

Negotiating with a Bank to Avoid a Deficiency Judgment

Question: What can I expect from a real estate short-sale as far as deficiency judgments? I am in the process of attempting a short sale, but am worried the bank will allow the short sale, but a judgment will remain that can come back and haunt me years later. I've been told that it may come down to me needing to just let it foreclose and go to auction for a better chance of eliminating a deficiency judgment.

Response: When you do a short sale, you can negotiate with the bank to avoid a deficiency judgment. In this economy, most banks agree. However, at the end of the year, you will receive notice from the IRS regarding the debt cancelled. The amount forgiven by the bank (difference between what you owed and what you sold the house for) will be regarded as income and you would have to pay capital gains taxes on that. Speak to your accountant about rules governing the cancelled debt. In 2012, that requirement was waived. I am not sure if it will be extended through 2013 and so on. However, if you do not short sell your home and the bank forecloses, then the bank can come back after you for the deficiency judgment in this case as well. Short sale is more favorable than foreclosure.

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 21, 2012

How to Reverse an Unlawful Foreclosure?

Question: I have a problem with foreclosure/eviction. I am being evicted from my home that has been in the family for many generations. I was never served with a foreclosure sale notice and was not notified that the property was in foreclosure. When we found out, we have been trying for several years to get a payoff amount so we could refinance but no one would give it to us. Now we are being evicted. Can you help? We want to keep and buy our property but there is no one willing to work with us.

Response: You have to get a knowledgeable attorney who will bring a Motion to Vacate the Judgment of Foreclosure and Sale. If you can prove that you were never properly served and foreclosure took place unlawfully, the court can reverse the original decision. Generally, if that happens, the bank will then have to recommence the foreclosure procedure and start from scratch. You can win some time in trying to either reinstate the loan or try to modify the loan to save your home. The trick here, of course, is winning on reversal of the judgment (time is of the essence here).

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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Thursday, October 4, 2012

Can the Bank Garnish a Senior Citizen's Retirement Income in the Process of Recovering a Deficiency Judgment from a Foreclosure?

Question: I co-signed for a mortgage for one of my kids and they are now in a foreclosure. What can the bank do to me if foreclosure goes forward? I am a retired senior citizen and I have a mortgage with no equity. I have a military service retirement income and a social security income. Please let me know what I can do.

Response: Since you co-signed, you are financially obligated under the note and mortgage. You will be a named Defendant in the lawsuit and if foreclosure goes through and the bank tries to recover a deficiency judgment for the amount owed to the bank after the foreclosure sale takes place, the bank will be seeking how to actually recover that money. Your pension and retirement income cannot be touched. You have a home without equity but the bank can still record a lien against it in hope of recovering its money when you decide to sell your home. You can't sell your home with a lien on it. If you keep living there, then the lien will just stay there but you can continue to live in your house. If your kids have assets, the bank may go after their assets instead. If your kids are not planning to fight to save their home, then they might as well do a short sale or a deed-in-lieu of foreclosure to avoid the deficiency judgment.

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 30, 2012

Can Banks Foreclose Over Two Missed Mortgage Payments?

Question: My bank is threatening me with foreclosure over two missed payments. We have been in contact with them to try to work it out but we got nowhere. Can they start foreclosure over two missed payments? They told me that they would not accept any more payments unless we paid the full amount of missed payments.

Response: The bank likes to threaten a lot but their words are often empty threats. In order to start foreclosure, they first have to send a notice of missed payment(s) and the amount due and 90-day letter stating that if balance is not paid, they can start foreclosure. Until you get this letter(s), foreclosure process cannot begin and if it does, it is defective. Whether you can get a loan modification depends on the bank/servicer. You can go on MakingHomeAffordable website to see which servicers participate in HAMP. If you get a loan modification, your missed payments will be added to unpaid principal balance and you won't even feel them in your payments over the years. It may be too soon though to discuss a loan modification since banks generally wait until three missed payments.

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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Saturday, September 22, 2012

The Bank is Enforcing a Deficiency Judgment Against Me, What Can I Do?

Question: I just went through a foreclosure and now the mortgage insurance company wants the difference of tens of thousands of dollars from me as this was the difference between what I owed and what my home was sold for at foreclosure auction. Can they access my bank account? I do not have a job right now and am attending school.

Response: Yes, but first the bank has to sue you to get a judgment against you and then try to either garnish your wages or your bank account or your tax refund or put a lien on your property if you own another home to satisfy that deficiency. If you know you are anticipating being sued, it is best to appear in court and try to work it out and maybe settle for a lesser sum than to wait until a default judgment is granted against you and the bank will look for a way to seize your account.

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, September 17, 2012

Attempting a Short Sale After the Motion for Default Has Been Filed

Question: If a foreclosure process is in progress and owner has failed to file a pleading within the time required by law and a motion for default has been filed by the bank for the purpose of accelerating the foreclosure process, can the property owner attempt a short sale?

Response: Generally, until the foreclosure sale is scheduled or the property has already been sold, the borrower under the loan can attempt loss mitigation options to avoid foreclosure sale, including the short sale option. However, from the question, it is not clear at what stage the foreclosure process is in. If the borrower did not file an answer and the bank is proceeding with the borrower being in default, it may be possible for the borrower to file a motion for late answer. If you show a reasonable excuse for lateness, the court may grant it (ex: you were not properly served with summons and complaint, hence you did not know about answering the complaint). If it is too late for that, it is best to contact the bank's attorneys' office to inquire if short sale option is still available. Since everyone benefits more from short sale than foreclosure, they will oftentimes work with you to do the short sale and not schedule 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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Saturday, September 8, 2012

HAMP 2.0 for Homeowners, Who Defaulted on Their Loan Modifications

Question: I previously had a loan modification under HAMP. After my spouse lost her job, we could not afford even the modified payment. We are back on our feet now but the bank has refused to work with us again and constantly tells us we are in active foreclosure. Is there any way we can try to save our home? We don't have the money to reinstate the loan.

Response: In June of 2012, HAMP 2.0 came out, a new federal program designated to help people like yourself who previously had a HAMP loan modification but then defaulted or people who defaulted during the 3-months trial period. If you have not submitted the documents after June 1, you should try to resubmit your paperwork now. The bank actually uses 25% of your gross monthly income (as opposed to 31% under HAMP) to determine if you are eligible for a loan modification.

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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Saturday, September 1, 2012

Undecided between Foreclosure and Short Sale

Question: I am facing foreclosure on my home. My spouse passed away a few years ago, my home has not sold and I have not been able to pay my mortgage for a number of years now. My mortgage company refused to allow me to do deed-in-lieu of foreclosure, and my realtor knows that I am trying to do a short sale. I know I can’t save my home, and I am wondering what I can do to make the foreclosure process any easier on myself. Do I need to hire a lawyer to get me through the foreclosure process?

Response: It depends on what you are trying to accomplish. If you want the bank to take away your home as soon as possible, then don't fight foreclosure and the bank, in due time, will be allowed to foreclose on your home by the court. Alternatively, if you want to stay in your home as long as possible, then you should get an attorney who will attempt to fight foreclosure and thus prolong the process and maybe give you the necessary time to do a short 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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Tuesday, August 28, 2012

Foreclosure, Short Sale or Deed-in-Lieu on a Vacant Property

Question: My home was put up for sale multiple times in the last few years with no success. I have refinanced my mortgage in the past and I am current on my payments, however I have not lived in that home for many years because of work. I am paying a mortgage on a house I don't live in. I need to know the best course of action to get out of this situation, so that I can buy a house closer to work. I am at the point of walking away from it, however I have a great credit history and I don't want to take that big of a hit on my credit score. What is the best option for me: foreclosure, short sale or deed-in-lieu of foreclosure?

Response: Foreclosure is always the last alternative. You can either try to do a short sale or a deed-in-lieu of foreclosure if the property is vacant. Otherwise, under HAMP 2.0, you can try to get a loan modification on the mortgage, to make payments more affordable, rent it out and essentially use the rent money to pay for the mortgage. However, all these methods will negatively affect your credit score but not nearly as badly as foreclosure. Also, while you have good credit, it is better to purchase a new home now while you still can but you need to be able to show affordability for two mortgages in order to get another mortgage. You can show the listing agreement for this property in question so the bank at least knows that it is a matter of time until you sell this home.

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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