Foreclosure: Common But Not Normal

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Contact Richard Rubin

Garden City, NY

Practice Areas: Foreclosure, Real Estate

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Many of the new callers and clients to our law firm are looking at a possible foreclosure on the mortgage of their residence, investment property or business.  Debt, financial hardship and failed loan modification submissions are daily topics of client calls and office meetings.  Long Island courts are engaged in close to 30% of all foreclosure cases pending in New York State and thousands more of our neighbors, friends and community members sit on the threshold with mortgage defaults and heavily debt laden properties.  Before you underestimate your strengths and the possible solutions to your problem, consider talking to an attorney.

Common calls... but not normal. More callers and clients to our law firm are expanding the topics of concern to illegal services and fees charged by "loan modification" companies claiming relationships with lenders and servicers. Discussions designed to uncover whether the foreclosure should have proceeded with undocumented bank communications occur more frequently, and further reviews within our offices examine the critical weaknesses in the foreclosure processes and the conduct of the lenders and their attorneys.

The lack of controls, weak or non-existent oversight of foreclosure practices and policies and inadequate loan modification policies result in common... but not normal communications.   Justice Spinner in Supreme Court, Suffolk County, recently returned the Horoski case to the headlines , almost one year after a reversal of his judgment, and restrained the foreclosure auction pending a hearing on whether the plaintiff in that action actually owned the debt and mortgage note.  The mortgage servicer is an intermediary between the borrower and the actual lender, responsible to collect payments, manage cash and real estate tax and insurance funds, provide foreclosure alternative procedures and issue reports to all parties.  With the increased demand on our courts, the weaknesses in the foreclosure processes present a marked uncertainty in the safeguarding of our clients' rights.

Last week, this common... but not normal, absence of governance and inadequate protection of borrowers and homeowners rights was also loudly and clearly safeguarded in our Appellate Division in a case entitled "US Bank v Sharif."  "Entitlement to a judgment of foreclosure may be established, as a matter of law, where a mortgagee produces both the mortgage and unpaid note, together with evidence of the mortgagor's default, thereby shifting the burden to the mortgagor to demonstrate, through both competent and admissible evidence, any defense which could raise a question of fact." However, foreclosure of a mortgage may not be brought by one who has to title to it. Where standing is raised as a defense by the defendant, the plaintiff is required to prove its standing before it may be determined whether the plaintiff is entitled to relief. Accordingly, in the absence of any evidence to demonstrate the existence of a written assignment  of the note or physical delivery of the note, the Supreme Court should have grant(ed) the motion ...to dismiss the complaint insofar as asserted against him for lack of standing.

Getting started to defend your investment properties, homes and businesses is the proper task.  Litigation is common... but not normal.  Our fingerprints and circumstances have little in common with affidavits, motions, legality and propriety of actions taken by big banks, assignments, MERS issues and dedicated foreclosure defense law firms to require judicial oversight on trampled civil rights.  Enforcement and demonstrated lawsuits have traditionally been ensured to commerce and industry far better suited than our neighbors and friends.  This may be true but we must all agree now that conventional and modern wisdom pointedly dismisses all such weaknesses and demands a recapture of your homes and businesses.

This is not a show of hands seeking who can capitalize on the foreclosure chaos and crisis affecting millions and millions of American families. The normal returns shortly, and sometimes within moments, when a family and business owner consults with the attorneys in our law firm.  These clients, priding themselves on years of sacrifice, dedicated savings and dreams, learning of their civil rights and ability to enforce, preserve and protect their homes and businesses, look for the sequel and options to the foreclosure lawsuit. We observe these new and eager values emerging, following the court judgments and designated leadership, evincing a resounding focus to impact this common... but not normal oddity to fight on equal footing, in the substantial and successful movement to........  KEEP HOME YOUR OWN.

Richard Rubin is a Foreclosure Attorney practicing in New York

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