Assignment of Mortgage Procedural Defects in Foreclosure Cases

Question: Sometime last year, a bank, which doesn't own my mortgage and is not servicing my mortgage, filed for foreclosure on my property. A week after, that bank withdrew the foreclosure and nothing has been done since. Yesterday, I was notified that a clerical error was entered on my property description by a company that I believe was hired by that bank. No one ever contacted me about this nor showed me how these changes affect me. I believe that the deed has been separated from the note by this bank that I never dealt with.

Response: Generally, when banks start a foreclosure action and immediately thereafter voluntarily discontinue it, there is a procedural problem that they realize may prevent them from foreclosing on your property. For example, if your loan is owned by the first bank and it was recently sold to the second bank and they have started a foreclosure action in the name of the second bank but the assignment of mortgage (document that transfers ownership of the note and mortgage) is in the name of the first bank, then there is a procedural defect in the case and the Plaintiff would have no standing to sue you because at the time of commencement of the action, the loan was still owned by the first bank. This is just an example. I am not sure exactly what happened that led to discontinuance of the case. Contact an attorney who is experienced in these matters to discuss how your legal position may be affected and what defenses you now have to a new foreclosure action.  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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Foreclosure and Deficiency Judgment Resulting from Failure to Keep Up with Chapter 13 Bankruptcy Payments

Question: We had been in Chapter 13 Bankruptcy for a couple of years. Due to my disability, we were not able to keep up with the Chapter 13 Bankruptcy payments and were discharged from it. We are now trying to deal directly with our mortgage company to save our home from foreclosure. If we cannot come up with a deal and our home goes to a foreclosure action sale for less than what we owe, will the mortgage company come after us for the difference?

Response: Different banks have different policies on pursuing deficiency judgments. Lawfully, they have the right to go after you for the difference, i.e., deficiency. Many banks today, however, waive their right to sue borrowers for deficiency because they know many people have no assets to go after and it is not economically feasible for the bank to do so. If you feel that you may near foreclosure sale, discuss the short sale or deed-in-lieu options with the bank to avoid financial ramifications that could result from foreclosure action 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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Rights of Second Lien Holder in Short Sale

Question: I am doing a short sale on my house. Does the second lien holder in the form of a home equity loan have the right to collect the debt in full prior to approval of the short sale? With the completion of the short sale, does the mortgage company then take the loan in? If I find a financial institution to get my mortgage agreement back to its current status, what rights does the mortgage company have?

Response: If you pay off the loan, you get a satisfaction of mortgage and bank cannot foreclose. Please note that generally the banks don't want your house and will be much happier with getting their monies. As far as the short sale is concerned, the fact that it's a short sale means that your home is worth less than the amount of your mortgaged debt. Holder of home equity loan has to agree to get cut off completely or receive a small amount of money on repayment of their debt for you to be able to proceed with the 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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Submitting Loan Modification Documents Signed by One of Many Co-Borrowers

Question: My ex-husband modified our jointly owned mortgage without my signature. Do I have any recourse?

Response: As long as one borrower lives in the house and submitted their documents for a loan modification, they are entitled to a loan modification and your signature may not have been required unless both of you had to sign and he forged your signature. Generally, if there is a divorce decree awarding the house to one of the spouses, he may have been able to modify and sign the agreement by himself.

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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Subordinate Defendant on Foreclosure Summons due to a Defective Quit Claim Deed

Question: I have been listed as a defendant in a summons for a mortgage foreclosure. The mortgage isn't in my name. It says that I am "subordinate, junior and inferior to the lien of plaintiff's mortgage, including, but not limited to, possible interest due to defective corrective quit claim deed." What does all this mean?

Response: What that means is that you are put on notice that foreclosure action has been commenced against the borrower who defaulted on his/hers mortgage. Since you have an interest in the property, by adding you as a defendant to the action, the bank is essentially trying to cut off your interest in the property in case foreclosure sale takes place. You cannot be sued for a deficiency since you are not the borrower.

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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Unexpected Costs to Reinstate a Mortgage in Foreclosure

Question: I am currently in foreclosure. I came up with the money the bank first demanded but now they are saying that the offer expired and they want 20% more. What are my options at this point?

Response: The longer you are in foreclosure, the more interest and late fees accumulate, as well as attorney costs and therefore the amount you owe to the bank to reinstate the loan grows along with it. When you get a reinstatement letter, it is only good through a specific date. After that date, arrears are calculated again and the amount grows. If you feel that the amount should be less than the amount sought and feel some additional fees are unfairly added, make a demand for an itemized breakdown of all the fees so you can discuss them with the bank or their attorneys. Sometimes (but not always) they make mistakes!

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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Do Trial Loan Modification Payments Reaffirm Original Mortgage Debt that was Discharged via Bankruptcy?

Question: I need to know if paying one or more 'trial payments' toward a potential mortgage loan modification will 'reaffirm' the original mortgage note which was discharged in a Chapter 7 bankruptcy several years ago. I do not want to reaffirm that debt and worry that a 'trial payment' might do that. The only reason to make the trial payments is to postpone the inevitable foreclosure sale.

Response: Making trial payments doesn't reaffirm the debt. Unless you selected that you are indeed reaffirming the debt in your Chapter 7 petition, all you are doing is making payments towards your loan so the bank wouldn't commence a foreclosure action or proceed with the foreclosure sale. Loan modification stays foreclosure actions. If the loan is modified, the case is settled and property will not be sold (unless you stop making payments again once the loan is modified). Also, trial loan modification after 3 months has to convert into a permanent loan modification. Once the permanent loan modification is executed, you no longer have to worry about the foreclosure sale taking place.

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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Rejection of Loan Modification and Foreclosure due to Incorrect Calculation of Income by Bank

Question: When I was attempting to get a loan modification, the bank incorrectly counted my income, in order to correct their mistake, they requested that I reject the current offer and reapply. I followed their instructions. I reapplied and for 6 months they kept on saying that they were reviewing my new loan modification application and I would be getting an offer or denial in the mail. I was following up with them every month if not more often than that. They kept on saying it was under review each time I called and that I should be patient and wait for the response in the mail. Within a week or two of these follow up calls, I received a foreclosure notice on my door. When I asked the bank what was going on, they "escalated" my account to be reviewed based on their erroneous information to some department that I could never talk to. Nevertheless, my home was foreclosed on with an option to do a deed-in-lieu of foreclosure, short sale, etc. I believe this has adversely affected my credit score and job opportunities as almost every employer looks at my credit and sees this negative information on my background. What chances do I have in seeking damages for this unethical practice? As a side note, this was not a subprime loan, it was a full doc.

Response: Unfortunately, seeking a loan modification is a not a waiver of foreclosure. When you stop making payments, the bank can indeed start a foreclosure action and proceed with foreclosure unless your file is specifically placed on loss mitigation hold (which would stay foreclosure action). It is surprising though that the bank was able to foreclose so quickly because foreclosures these days last substantially longer than in the past. Also, banks are usually more inclined to try to settle the matter with you via loan modification rather than foreclosing so it's a bit surprising that they foreclosed. Also, if you are told after 6 months that the file is still in review, something is wrong. The banks are allowed 30 days to complete review once a complete package is received. You have to be very aggressive in following up at least once a week because documents become stale after 60-90 days and then you can't be reviewed with old documents. I doubt that you have grounds for a lawsuit against this bank.

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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Saving Your Home after Filing for Bankruptcy

Question: I deeded my home to my son to start his business a few years back.  Soon after, the business failed. He filed for bankruptcy. The final judgment from bankruptcy court dissolved him of the bills concerning the business including the mortgage on the home. Soon after the end of the bankruptcy, the bank that was holding the mortgage sold the property to another mortgage company. We are in final foreclosure procedure now. I tried to negotiate with them for fair market value with no luck and so far we continue to accumulate interest. What are my options?

Response: When one files for bankruptcy, the obligation under the note is discharged but the bank's right to pursue foreclosure under the mortgage agreement remains. The bank has a right to foreclosure on the property. To stop it, you may need to become current on the mortgage. Most banks do not like to negotiate a short payoff with the borrower so the person who originally obtained a certain amount doesn't benefit from the transaction by now having to pay less. So, it is hard to accomplish. When you go to court, you should realistically weigh your options and see if you want to save this property.  After filing for bankruptcy, the bank cannot sue the owner for deficiency since the obligation under the note no longer exists.

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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Garnishing of Wages in a Foreclosure

Question: I am several months behind on my mortgage payments in an "under water" residence. If foreclosure begins, will my wages be garnished?

Response: The only way for garnishment to take place is if the bank wins foreclosure action and then brings another lawsuit to obtain a deficiency judgment against you. If they are successful, they have to find a way to get the money from you and then garnishing wages is an option. You can try to fight the foreclosure. You can try to get a loan modification or a short sale. Foreclosure should be your last resort. If it takes place, however, please note that some banks today waive lawsuits for a deficiency judgment. So, while it is possible down the road, it is not certain that it will happen.

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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Taking out a Mortgage after Filing for Bankruptcy or Losing a Home to Foreclosure

Question: My home was included in a bankruptcy that I filed a couple of years ago. When I recently tried to purchase another home, I was told that I have to wait for approximately three years after the foreclosure process and the fact that my home was included in a bankruptcy is irrelevant. What makes the matters worse is the fact that my initial lender sold my mortgage to another bank, which didn't start working on my foreclosure yet. Can you please confirm that I indeed have to wait for three years after the completion of foreclosure to buy a new home or I can do so because my home was included in the bankruptcy?

Response: Once you file for bankruptcy, your credit is damaged and needs time to repair before a lender will extend credit to you again. It is easier to get a credit card a couple of years after the bankruptcy than getting a new mortgage. It may take longer than three years.  Bankruptcy takes 7-10 years to go away from your credit report. It is a slow process to build it up but it is possible, mainly through obtaining new credit, which you will timely repay in the future.

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.
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