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The Foreclosure Abuse Prevention Act as a Legislative Correction to Controversial NYS Court Cases, Concerning the Foreclosure Statute of Limitations, Including the Court of Appeals Decision in Engel.
Background and History of the FAPA: The NYS Legislature’s Strengthening of the Foreclosure Statute of Limitations The Foreclosure Abuse Prevention Act (the “FAPA”) is a recent New York State Law dealing with foreclosure procedural rules where the New York State Legislature (the NYS Senate and Assembly) passed bills that were just signed into law by the NYS Governor, which are designed to be a legislative correction to NYS judicial decisions, affecting the statute of limitations in foreclosure actions, including the NYS Court of Appeals decision in Engel and associated cases. The FAPA (Senate Bill S5473, passed...
What’s the Difference Between Residential and Commercial Mortgages When It Comes to Foreclosures?
If you live in New York and are interested in real estate investing, you may be able to use a commercial mortgage on an investment property. But if things go wrong, there are specific differences between the foreclosure process of residential and commercial mortgages. Residential vs. Commercial Mortgages Residential mortgages usually offer better rates and terms, so commercial mortgages tend to be only used for commercial ventures. However, there can be areas of overlap: When you want to buy a residential structure (up to four units in the building) to...
What to Know About Foreclosures on Reverse Mortgages
If you or an elderly parent have (or are thinking about getting) a reverse mortgage, there are things you need to know about how these types of mortgages work. And yes, you may still have to deal with the threat of foreclosure. What is a Reverse Mortgage? With inflation skyrocketing, many seniors on fixed incomes are struggling with the rising cost of living. If you are a homeowner of 60 or over, you may be eligible for a reverse mortgage. Unlike a traditional mortgage, where you are given a lump...
What is a Foreclosure Sale or a Foreclosure Auction in a Foreclosure Case?
If you live in New York, and are going through the foreclosure process, there are a number of terms you are going to come across. Today we’ll be talking about the Foreclosure Sale (or Foreclosure Auction) and what it means to you in your foreclosure case. The Final Stages of the Foreclosure Process A foreclosure sale or foreclosure auction is the last step in a foreclosure proceeding before the property’s ownership is forced by law to be transferred. The foreclosure sale has 4 stages: the notice period; the auction; the...
What is a Motion for a Judgment of Foreclosure and Sale in a Foreclosure Case?
If you live in New York, and are going through the foreclosure process, there are a number of terms you are going to come across. Today we’ll be talking about a Motion for a Judgment of Foreclosure and Sale and what it means to you in your foreclosure case. The Ending Stages of the Foreclosure Process In a previous post, we spoke about Referee Hearings and Notices of Computation. Once the Referee has reported their finding to the court (and your lenders and your foreclosure lawyer), and everyone has accepted...
What are a Referee Hearing and Notice of Computation in a Foreclosure Case?
If you live in New York, and are going through the foreclosure process, there are a number of terms you are going to come across. Today we’ll be talking about a Notice of Computation and a Referee Hearing and what they mean to you in your foreclosure process. How Does the Court Determine How Much I Owe? In a foreclosure proceeding, the court needs to determine how much you owe to the lender/bank that holds your mortgage. The court wants to know the total amount, including the mortgage loan (balance...
What is a Summary Judgment Motion in a Foreclosure Case?
If you live in New York, and are going through the foreclosure process, there are a number of terms you are going to come across. The Motion for Summary Judgment is usually the main motion in a foreclosure case, and how it goes in terms of what it says, how it is defended, and how it is decided will determine the course of your foreclosure case. What Is a Motion for Summary Judgment? Trials for an entire foreclosure case are unusual since foreclosures are usually disputed over the law and...
Can I Stay a Foreclosure Sale Without Declaring Bankruptcy?
If you live in New York, and your lender is trying to sell your house out from under you, you have options other than bankruptcy to have the courts stay (stop) the sales process. What is an Order to Show Cause? Besides declaring bankruptcy, an Emergency Order to Show Cause (OSC) is the other main method of staying a foreclosure sale. This method involves non-bankruptcy state law but is discretionary, meaning unlike the automatic stay in a bankruptcy case, a stay under an OSC needs to be court ordered. Unlike...
New York Lowers the Interest Rate on Consumer Debt Collection Cases
If you are struggling with consumer debt, are thinking about bankruptcy, and you live in New York, you need to ask your debt settlement lawyer about the new lower interest rates on money judgments. What is this new law on lower interest rates? Governor Kathy Hochul passed Senate Bill S5724A (https://www.nysenate.gov/legislation/bills/2021/S5724) lowering the interest rate paid on money judgments arising out of consumer debt. This new statute, CPLR § 5004 (https://www.nysenate.gov/legislation/laws/CVP/5004), lowers the interest rate that debtors have to pay on judgements against them from an average of 9% down...
What Will Happen to My Second Mortgage During Bankruptcy?
If you are considering bankruptcy, you have a second mortgage on your home, and you live in New York, you need to ask your bankruptcy lawyer about lien stripping. What is Lien Stripping? Lien stripping is part of a process that transitions your second mortgage from a secured loan to an unsecured loan. This option is only available under certain circumstances: You are declaring Chapter 11 or 13 Bankruptcy. Lien stripping is not allowed under Chapter 7.* The total assessed value of your home is LESS than the value of...
Why is My Bank Reopening My Old Foreclosure Case ?
Do you live in New York and have a foreclosure suit in your past (initiated more than 6 years ago) that was voluntarily dismissed? Thanks to the recent Engels Decision, your lender may be able to re-start its case against you despite the many years that have passed. But first, you need to understand some legal terminology. What is Loan Acceleration/De-acceleration? If you read through your mortgage documentation, you may come across a clause that states that if you stop paying your mortgage payments, your lender has the right to ask...
What is the NYS Consumer Credit Fairness Act?
If you live in New York and are currently fighting lenders about your consumer debt (like credit cards and car loans), the State recently passed a law you need to know about. The Consumer Credit Fairness Act The New York State Senate passed into law the Consumer Credit Fairness Act (Assembly Bill A2382). The impetus behind this new law was the growing problem of abusive debt collection practices, usually by third- or fourth-party collection agencies. These agencies would try to collect on debts that had been already paid, that had...
When is an Eviction Illegal?
If you live in New York and are in danger of being evicted, your landlord will have to follow strict state eviction regulations. If they don’t, they may be breaking the law. Evictions in New York are On the Rise New York State’s moratorium on evictions ended on January 15, 2022. This led to a sharp increase in eviction procedures in the local court systems. Many evictions were triggered by tenants unable to pay their rent due to the COVID pandemic. Even with the State’s ERAP Program trying to help,...
Some Updated Information on Post-Pandemic Foreclosure Defenses
If you live in New York, you may be confused with all the changing rules affecting foreclosures during and after the pandemic. If you’re going through the foreclosure process, here is some information you should know about possible foreclosure defenses. What Happened to Foreclosure Procedures During the Moratorium? During the height of the pandemic in the US, all foreclosure cases pretty much stopped in their tracks. The CARES (Coronavirus, Aid, Relief, and Economic Security) Act helped keep homeowners with federally backed mortgages from being foreclosed upon during the worst of...
How Does the Kessler Decision Impact a 90-Day Notice?
If you live in New York, the decision of a recent court case could unexpectedly give you more time to fight against a possible foreclosure. In the case of Bank of America v. Kessler, the courts chose to follow the exact wording of New York's Required Prior Notices law (RPAPL 1304). What does that mean for you? If your lender sent you a 90-Day Notice letter in the mail, and put anything else in the envelope, you may be able to have their foreclosure case dismissed. What is RPAPL 1304?...
What’s Going On with ERAP?
If you live in New York, and are either a landlord or a tenant, you may still be waiting to hear about your ERAP application. Here are some things you’ll need to know. A Quick ERAP Refresher The Emergency Rental Assistance Program (ERAP) is a New York State program to help tenants and landlords with missed rent payments due to the COVID-19 pandemic. Eligible tenants who are approved can receive up to 12 months of back rent for missing payments on or after March 13, 2020. ERAP applications can be...