Prior Foreclosure Not An “Act of Acceleration”!

Prior Foreclosure Not An “Act of Acceleration”!

By now, most servicers are fully familiar with New York’s Statute of Limitations and the nuance that it only begins to run on each installment when it becomes due unless accelerated. (See my article about the Statute of Limitations).  

What Actually Happens at a Real Estate Closing?

What Actually Happens at a Real Estate Closing?

A real estate “closing” is the event where parties meet in order to consummate a real estate transaction. At a typical real estate closing, where one party is selling real estate to another, the parties who will attend the closing consist of the sellers and their lawyer, the buyers and their lawyer, the bank's attorney, the title closer, and one or more real estate brokers

After Surrendering in Bankruptcy, Contesting Foreclosure is not Allowed

After Surrendering in Bankruptcy, Contesting Foreclosure is not Allowed

Oftentimes, a Debtor files a Bankruptcy petition that will stay a pending foreclosure.  Should the Debtor seek relief under Chapter 7, all property of the Debtor becomes property of the Bankruptcy Estate and subject to disposition by the Chapter 7 Trustee, with court approval.  Should the Chapter 7 Trustee determine that there is no equity in the mortgaged premises, he/she will “abandon” the property, and title will then revert back to the Debtor.  The Debtor must then either pay the secured debt, or “surrender” the property to the Secured Creditor in satisfaction of, at least, the secured portion of the debt.

What Is My Home Worth?

What Is My Home Worth?

How much can you sell your house for? 

The “fair market value” of real estate is defined as the amount that the house will sell for if the seller is not under any pressure to sell and the buyer is not under any pressure to buy. Accordingly, if you are selling your house, have already signed a contract to buy another one, and only have a two-month timeframe to sell, you are under pressure to sell and may have to accept a “below fair market value” offer. (See my article - “Should I Buy a New Home Before I Sell My Own”). 

What It Means to Be “Judgement-Proof”

What It Means to Be “Judgement-Proof”

Prior to the establishment of the United States, people in England who did not pay their debts were sent to debtor's prison. Today, in the United States, there is no debtor’s prison and creditors can only enforce judgments if they can locate the assets of the judgement debtor, and have them sold to liquidate the debt or by garnishing their wages. If a debtor truly has no job or assets, he is said to be “judgement proof” because a judgment creditor has nothing to sell or garnish. Many debtors, however, merely pretend to be judgement proof! They really do have assets, but attempt to hide them. 

Payoff Letters: The Newest FDCPA Landmines

Payoff Letters: The Newest FDCPA Landmines

On December 3, 2015, the United States Court of Appeals, 11th Circuit, decided the case of Kevin Prescott v. Seterus, Inc., 635 Fed. Appx. 640, 2015 U.S. App. LEXIS 20934 (11th Cir. Fla. 2015) and held that the inclusion of estimates or anticipated costs that have not yet been incurred, in a payoff or reinstatement letter, is a violation of the FDCPA

How Bankruptcy Impacts New York’s Statute of Limitations

How Bankruptcy Impacts New York’s Statute of Limitations

As noted in my previous article, “Statute of Limitations,” New York’s six (6) year Statute of Limitations is tolled for the time the bankruptcy is pending, (CPLR section 204) and renewed for an additional six (6) year period if the debtor acknowledges the debt in writing. (GOL 17-101) 

Types of Short Sales—Part Three: FHA

Types of Short Sales—Part Three: FHA

In the first two parts of this series of articles, we discussed the short sale programs offered by HAFA (Home Affordable Foreclosure Alternatives), Fannie Mae (Federal National Mortgage Association; FNMA) and Freddie Mac (Federal Home Loan Mortgage Corp; FHLMC). 

Types of Short Sales—Part Two: Freddie Mac and Fannie Mae

Types of Short Sales—Part Two: Freddie Mac and Fannie Mae

In our last articlewe discussed the different types of short sales available and some of the details of the HAFA short sale program, in particular. In this article, we discuss some of the requirements and provisions of the Fannie Mae and Freddie Mac short sales.

Types of Short Sales—Part One: HAFA

Types of Short Sales—Part One: HAFA

In my previous article, “How Short Is the Short Sale Process?” I described the process of having a short sale approved. In this series of articles, I will be discussing the specific requirements that must be satisfied in order to be approved. 

Foreclosure Actions - How Does Accelerating the Mortgage Affect the SOL?

Foreclosure Actions - How Does Accelerating the Mortgage Affect the SOL?

My previous article regarding New York's Statute of Limitations (CPLR 213) described how New York provides an affirmative defense to actions based upon contractual obligations that accrued more than six (6) years ago.

Did You Know the 90-day Notice Requirement Extends the Statute of Limitations?

Did You Know the 90-day Notice Requirement Extends the Statute of Limitations?

New York’s RPAPL 1304 requires that prior to the commencement of a foreclosure action, a notice must be given to the borrower allowing 90 days to cure the default before the plaintiff is allowed to file the summons and complaint.

RPAPL 1304 - Are Mortgagors "Borrowers"?

RPAPL 1304 - Are Mortgagors "Borrowers"?

New York's pre-RPAPL Section 1304 requires lenders to serve a notice to each "borrower" at least 90 days prior to the commencement of a foreclosure. Failure to do so will cause the foreclosure to be dismissed, as the requirement is considered to be a condition precedent to the commencement of the foreclosure. New York’s statute, however, does not define a “borrower" or distinguish between the parties who execute the note and those who execute the mortgage. 

Protections Provided by the Servicemembers Civil Relief Act

Protections Provided by the Servicemembers Civil Relief Act

The Servicemembers Civil Relief Act (SCRA), originally called the Soldiers and Sailors Civil Relief Act (SCRA), was enacted in 1940 to provide protection for members of the armed forces while serving our country. It requires lenders to provide forbearance and the reduction of interest rates with respect to certain obligations of military members, as well as restricting the entry of default judgments or evictions against them and their dependents.

What Can a Seller Do When a Buyer Is Unable or Unwilling to Close as Scheduled?

What Can a Seller Do When a Buyer Is Unable or Unwilling to Close as Scheduled?

When real estate is sold, the contract typically specifies that the closing will take place “on or about” a specified date. These “words of art” mean that the specified date is merely a “target date” and that the parties intend to close sometime in its vicinity; furthermore, each party will be entitled to an adjournment for a “reasonable time,” if needed, which New York courts have consistently defined as thirty (30) days.