Can You Fight A Foreclosure After Filing For Bankruptcy
May 31, 2008
You can fight a foreclosure within the time period set by law (usually 20 days after you were personally served with the foreclosure Complaint, 30 days if you were served by mail or other means). Once that time has passed, you are legally in default and your time to answer has expired.
This is not, however, the end of the world. If your time to answer has expired, you will need to get the court’s permission to file and serve a late answer. Many courts will allow you to do so if you have a good defense in the case, as well as a good reason why you didn’t file an answer in a timely manner. It’s also smart to call the bank’s lawyer to get their consent, in which case you wouldn’t need to get the court’s permission at all - but if they don’t consent, letting the court know in your request will show that you’ve done your best to solve the problem on your own.
If you are served with a foreclosure and file for bankruptcy during the time to answer, then that time clock stops running while you’re in bankruptcy. So if you’re served with the Complaint and then file for bankruptcy on Day Ten, you will still have at least ten days to file an Answer once the bankruptcy ends (or if the bank gets relief from the automatic stay).
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Mortgage Lender Must Have Ownership Of Loan When Foreclosure Is Filed, Holds Brooklyn Judge
May 21, 2008
The case of Indymac Bank, FSB v. Ross, Supreme Court, Kings County Index No. 24713/07 (January 15, 2008) began normally enough. Indymac filed a summons and complaint on July 6, 2007. The borrower failed to appear or answer, and Indymac asked the court to grant a judgment of foreclosure on default.
What Indymac got was a denial not only of the judgment, but a denial of the entire foreclosure case.
The original lender of the subject October 4, 2006 mortgage was Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for Mortgageit, Inc. MERS then assigned the loan to Indymac. But that assignment was not dated until July 11, 2007 - five full days AFTER the foreclosure was filed.
Though the assignment states that “[tjhis assignment is effective on or before June 1, 2007,” the court found such retroactive assignment to be ineffective.
The court stated as follows:
. . . such an attempt to retroactively assign the mortgage is insufficient to establish plaintiff’s ownership interest at the time the action was commenced. See Countrywide Home Loans, Inc. v. Taylor, 17 Misc3d 595 (Sup. Ct. Suffolk Co. 2007). Plaintiffs attempt to foreclose upon a mortgage in which it had no “legal or equitable interest was without foundation in law or fact…” Katz v. East- Ville Realty Co., 249 AD2d 243 (1st Dept 1998). See US Bank Nat. Ass’n v. Merino, 16 Misc3d 209, 212 (Sup. Ct. Suffolk Co. 2007). Moreover, “foreclosure of a mortgage may not be brought by on who has no title to it….” Kluge v. Fugazy, 145 AD2d 537, 538 (2d Dept 1998). See RCR Services Inc. v. Herbil Holding Co., 229 AD2d 379 (2d Dept 1996). Finally, plaintiffs standing to bring the within action goes to the basis of a court’s authority to adjudicate a dispute. See Stark v. Goldberg, 297 AD2 203 (1st Dept 2002) (wherein the court held that sua sponte dismissal of the action was warranted despite the lack of any assertion by defendants of an objection to plaintiffs’ standing) .
So what does this all mean for you, the person going into foreclosure? It means that it’s important for you to fight back and to defend the foreclosure. Don’t think that there’s no hope for you, that an inability to pay the mortgage means you automatically lose. You have powerful rights, and need to be sure to use them.
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Brooklyn Foreclosures Rise 27%
May 1, 2008
I ran across a story in the New York Post, by way of Brownstoner, that indicates Brooklyn foreclosure rates jumped nearly 27% in the first quarter of 2008. That may sound bad, but consider this - the foreclosure rate in the rest of the city has gone up between 34.9% (Bronx) and a staggering 101% (Staten Island). And the rest of the country is faring even worse, with a leap of 112% year-over-year.
The part that bugs me is the fact that so many of these foreclosures could be fought if only the homeowners knew there were lawyers out there to help them. Instead, they sit idly by and wait for the gavel to fall. Their homes gone, their dreams dashed, and their equity stripped away by hyper-inflated foreclosure costs and legal fees to the lender’s attorneys.
Homeowners across the country have fallen victim to the ruthless banking industry and their shell game of “moving mortgages.” The loan is sold, sliced and diced so many ways that in the end there is no single entity to whom you owe money. In fact, nobody can even prove they have the right to foreclose.
But do homeowners know this? Nope.
So the statistics mount on a daily basis, the carnage getting worse each quarter. It won’t be long until huge swaths of New York City are boarded up and abandoned, shadows of the 1970’s and urban decay.
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