Foreclosure

August 25, 2017

Divorce and Foreclosure – What are Your Rights?

Financial troubles can be the cause of much stress for married couples. Often, these stresses lead to a couple separating, and ultimately, divorcing. In such situations, there will always almost be issues regarding the marital residence, be it a house or an apartment. Due to the financial issues, the property may already be in foreclosure. This blog post will explore the legal issues relating to married couples who own property which may be in foreclosure, and the issues that arise if a divorce proceeding occurs.

The first assumption is that the property in question is owned by both parties. The legal term for such ownership is tenants by the entirety. This means that the property is jointly owned by a married couple, and if either party passes away, their ownership share automatically passes to the surviving spouse. It should be noted that tenants by the entirety only applies to married couples. Once a divorce is finalized, the ownership interest changes to tenants in common, which means that the interest does not automatically transfer upon death to the survivor, but remains as part of the estate of the deceased.

Of course, when the parties are divorcing, the ownership of the martial residence is usually a major issue. If the property is in foreclosure, or is likely to become the subject of a foreclosure case in the near future, such issues must be addressed as part of the divorce proceedings. There are several possibilities in this situation. First, if there is equity in the property, and neither party wants to remain in the marital residence, the property may be sold, with the couple sharing the proceeds as per their divorce agreement. In the course of such a sale, any outstanding mortgage would be paid off, and any foreclosure proceedings would be discontinued as a result of such a sale. This is probably the easiest solution, although not always possible.

August 9, 2017

An Update on Reverse Mortgages

By Weiss & Weiss

A recent New York Times article concerns possible changes to the enforcement of reverse mortgages against surviving spouses. To those unfamiliar with reverse mortgages, they are a type of mortgage loan which allows elderly borrowers (usually over 62 years old) with sufficient equity in their primary residences to borrow against that equity. Generally, the sums borrowed do not have to be repaid until after the death of the borrower. Therefore, the heirs of the borrower, after their death, have the option of repaying the sums due, or selling the property and then paying off the amount of the reverse mortgage, plus any interest accrued.

Other blog posts have discussed the possible pitfalls of reverse mortgages. The New York Times article concerns a specific problem with many reverse mortgages, that of a surviving spouse. The issue raised is this: what happens when the home is owned only in the name of the borrower, the borrower has a (usually) younger spouse, and then the borrower passes away, leaving an unpaid reverse mortgage? Is the surviving spouse forced to sell the property in order to pay off the reverse mortgage, even though they may have lived there for many years with their spouse?

This situation arises in only a small amount of reverse mortgages. Most couples own property jointly, and may take out a reverse mortgage in both of their names. In this situation, where both borrowers qualify by meeting the age requirement, the mortgage is not due until the last of the borrowers passes away. Therefore, the “surviving spouse” situation does not apply where both borrowers are record owners and borrowers. However, there are situations, often involving a second marriage, where one borrower may qualify by age, and the other “half” is too young and will not qualify as a borrower. Reverse mortgage companies may require that the property be put in the qualifying buyer’s name alone in order to approve and close a reverse mortgage. This creates the situation discussed, where the older borrower then dies and the younger spouse, who may have inherited the property is faced with the reverse mortgage lender demanding payment in full while she does not have the assets to pay the mortgage without selling the property in question.

July 14, 2017

Just Short of a “Short Sale” – What are Your Options?

By Weiss & Weiss

Our firm frequently has clients who own property that is in foreclosure. Often, these parties wish to sell their property and move on from the situation. Once a sales price is agreed upon, the important question to be asked is whether the proceeds from the sale are sufficient to pay off the debt on the property, or, if not, what the expected deficiency will be. As attorneys for the person selling a property in foreclosure, we would calculate the amount of all liens and judgments on the property, including the mortgage or mortgages in default, the costs and expenses of the sale, including New York State transfer tax and any local transfer tax, as well as the agreed upon broker’s commission for the sale.

This figure is then compared to the negotiated sales price for the property, as per the Contract of Sale. In many situations, the proceeds may comfortably exceed the debts on the property and the expenses of sale. For example, the total debt and expenses of sale may total $400,000.00, and the sales price may be $500,000.00. In this case, the seller may move ahead with the closing and expect to walk away with some additional funds after all costs and expenses of the sale are paid, including the broker’s commission and transfer taxes associated with the transaction.

But what happens if there are insufficient funds from the sales price to cover the debts and expenses encumbering the property? Let’s say the debt and expenses of sale are $400,000,00, and the sales price is only $375,000.00. In that situation, the person selling the property has several options, which will be discussed in this blog post.

June 22, 2017

Property Sales and Bankruptcy in New York

By Weiss & Weiss

Prior blog posts have discussed the effect of filing for bankruptcy on properties which may be in foreclosure. This post will explain what may happen to the property after a bankruptcy filing; namely, can the property still be sold to a third party, and under what circumstances.

Once a party to a foreclosure action files for federal bankruptcy protection, the Bankruptcy Court issues a stay on all pending legal proceedings. A stay means that all pending legal proceedings must cease, and no new proceedings can be commenced. This often occurs when the property in question is on the verge of being sold in a foreclosure auction. Once a creditor has obtained a foreclosure judgment, and complies with all preliminary requirements (such as public advertising) for a public sale, in general, the only way to stop such a sale is for the debtor to file for bankruptcy.

The bankruptcy filing can even happen on the day before the scheduled auction sale. Once the filing is made, notice is given to all creditors, who must cease all litigation and post-judgment proceedings, including a scheduled foreclosure auction. If the creditor wants to proceed with the sale, it must file a motion with the Bankruptcy Court to lift the automatic stay of all proceedings. This may take several months. In addition, they are only permitted to proceed against the property in question, and not against the individual filing for bankruptcy.

June 2, 2017

Should I Stay or Should I Go? Evictions After Foreclosure

By Weiss & Weiss

Prior blog posts have discussed eviction actions after foreclosures in New York State. Recently, due to the increased number of cases going to a final judgment of foreclosure and sale, and then being sold, there is an increased amount of tenants in foreclosed properties. This post will discuss the legal status of these tenants and the possibility of eviction.

A fast summary of the legal foreclosure proceedings is in order at this point. Once a Court issues a final judgment of foreclosure and sale, the property in question is then sold at public auction. The highest bidder then pays the amount bid to the court-appointed Referee, and receives a Referee’s Deed, which is evidence of their ownership of the property. The former owner’s interest is extinguished, together with the interest of any of the former owner’s judgment creditors.

Of course, the former owner may never vacate the premises. Once their ownership interest is extinguished, they are subject to eviction by the new owner (the successful bidder at the foreclosure auction). This may be the original lending institution, or an individual or corporate third party who purchases the property as an investment. If the former owner is still occupying the premises, they are considered a holdover tenant. Under the law, they must receive proper notice prior to an eviction proceeding being brought. If they do not vacate within a particular period of time, the new owner can then commence a holdover eviction proceeding in the appropriate local court having jurisdiction over landlord-tenant matters. For example, if the property was located in White Plains, then a holdover proceeding would be brought in White Plains City Court.

April 26, 2017

Post Foreclosure Repurchases – After “The End”

By Weiss & Weiss

Prior blog posts have discussed foreclosure proceedings, from the commencement of a foreclosure case to the entry of a Judgment of Sale and the public auction of the property. Many clients then ask, what happens next? Is it possible for the owner who has been foreclosed already to recover the property after it has been sold at a foreclosure sale? The answer to this question is a definite yes.

A public auction of foreclosed property will generally have two outcomes. In the first, the bank or other lending institution which brought the foreclosure case will acquire title to the property. This usually happens when either no one bids for the property, or when no bid exceeds the amount owned to the lender under the judgment of foreclosure. The other outcome is when a third party bids over the amount of the judgment, then obtains title, while paying the lender the full amount of its judgment (or a smaller amount negotiated with the lender).

In such cases, the original owner of the property may retain legal possession of the property. Although he may no longer be the legal owner, he maintains a right of possession, until an eviction action is brought against him. Sometimes, the owner’s financial circumstances may have improved and he may be in a position to repurchase the property from the successful bidder. The successful bidder may consider this a positive outcome as he would not have to bring an eviction case to obtain legal possession, and the occupant will pay him more than he paid to acquire the property, ensuring a profit.

February 10, 2017

Untimely Deaths- The Legal Aspects

By Weiss & Weiss

The timing of death is never particularly welcome. Some families are prepared, in that the deceased was elderly, maybe ill, and living in a nursing home. Perhaps such a person also had the foresight to have their attorney prepare her Will and other estate documents. Others may pass away at a relatively young age, in the prime of life, with ongoing financial and personal activities. This post will examine the legal ramifications of passing away while a legal matter is pending.

Imagine that the deceased was a party to a contract concerning the sale of a house which has not yet closed. The first step that the survivors would need to undertake is to review the contract and determine if it addresses the potential death of one of the parties before the closing. In most cases, the seller is bound to the terms of the contract through her successors. This means that the survivors cannot decide to nullify the contract and move into the house. However, the seller is not available to conclude the transaction. The attorney for the seller would need to apply to the Surrogate’s Court to apply for Letters Testamentary or Letters of Administration , which appoints the appropriate fiduciary to act for the Estate in order to complete the closing. Should circumstances warrant, it may be prudent to apply for Preliminary Letters Testamentary or Preliminary Letters of Administration, to permit the sale to conclude if it is jeopardized by a continued delay.

If the deceased was the potential purchaser of the house, the contract is likely to allow the purchaser’s survivors to cancel the contract. This is a logical result, as the transaction is inherently dependent upon the purchaser maintaining a job in order to pay the mortgage and other carrying costs of the house. Forcing this transaction to conclusion is a cruel result. In most cases, the downpayment is refundable. However, some contracts only provide that half or none of the downpayment would be refunded. It is advisable to have your attorney negotiate a favorable disposition for the downpayment in this instance when representing a purchaser, even if he is a young person.

February 2, 2017

The Supreme Court and What it Means to New Yorkers

By Weiss & Weiss

Recently, President Donald Trump nominated federal judge Neil Gorsuch to the Supreme Court of the United States. While the U.S. Supreme Court is the highest court in the country, New York’s Supreme Court is not even the top court in New York State.

In New York, the Supreme Court is the name given to the trial court for most cases filed within the state. Any case with an amount in controversy exceeding $25,000.00 may be filed in the Supreme Court. Cases involving lower amounts may be heard in local courts, such as Justice Courts or City Courts. In addition, if a case involves possession of real property, it should be filed in landlord-tenant court, which is usually part of a local court such as District Court, Town and Village Courts, Justice Court, or City Court, depending on where the property in question is located.

Appeals from the Supreme Court are heard in the Appellate Division. Should a litigant want to appeal to the highest court in the state, which is known as the New York Court of Appeals, located in the state capital, Albany. Any case heard by the New York Court of Appeals which involves U.S. constitutional principles may eventually be appealed to the United States Supreme Court and be heard by Judge Gorsuch (if he is confirmed by the United States Senate), as well as the other eight current Supreme Court Justices.

January 26, 2017

Post Foreclosure Rescue Schemes – Be on Alert!

By Weiss & Weiss

Our firm often represents borrowers whose homes may be the subject of a foreclosure action. While we attempt to resolve all such cases with the lending institutions, sometimes a foreclosure judgment and sale cannot be avoided, or has already occurred by the time the borrower seeks legal counsel. In such situations, the borrower needs to be on alert for possible “scams,” or individuals seeking to take advantage of a person in distress.

Because foreclosure lawsuits and judgments are a matter of public record, it is easy for unscrupulous individuals or entities to obtain the name and address of the person whose home has been foreclosed and sold at auction. Because most auctions result in the property being sold back to the original lending institution, some people will claim that they have purchased the property from the lender. If the borrower is still living at the property, they will contact the borrower directly or leave a note at the property, requesting that the borrower contact them directly.

We would recommend that if a defendant receives such communications, that they contact their attorney immediately. Using legal counsel will enable a person to avoid the high pressure tactics that these individuals may exert on the defaulting borrower, so that their desperation to reclaim the property or continue to live in it is not used to her disadvantage.

January 13, 2017

It Ain’t Over ’til it’s Over – Stopping Foreclosure Judgments and Sales

By Weiss & Weiss

Our firm is occasionally consulted by a party against whom a judgment of foreclosure has been entered. Prior blog posts have discussed the foreclosure process in detail. Among the last actions to be taken in a foreclosure case are the issuance of a judgment of foreclosure and the actual foreclosure sale. This post will discuss the few options available to a foreclosure defendant at this point.

The issuance of a judgment in foreclosure by the Supreme Court of the County in which the property is located usually occurs at two points in the foreclosure litigation. The first point would be if the defendant fails to answer the initial foreclosure Summons and Complaint, and the lending institution is granted a judgment by default. If the default was inadvertent, and the defendant has a reasonable excuse for not answering, as well as a meritorious defense, it is possible for the defendant’s attorneys to file a motion to vacate the default judgment.

Another point in the litigation allowing for a foreclosure judgment would be when the plaintiff moves for summary judgment and the motion is granted by the Court. Once a final judgment is submitted to the Court and signed by the Judge, the foreclosure process is in its final stages. The plaintiff must advertise a public foreclosure sale in a local newspaper for four weeks prior to the sale, and then conduct the sale, usually at the Supreme Court Courthouse in the county in which the property is located.