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The Law Offices of Robert E. Brown, P.C.

Foreclosure Defense FAQs

Before a lender can file a foreclosure against a mortgage borrower, the lender must mail an acceleration letter as notice of default. This letter informs the borrower that the lender plans to accelerate the entire amount owed, if the arrears are not paid by a specified date. In most cases, the acceleration letter is not sent until the borrower is at least two months in default. After 31 days, the lender must send a pre-foreclosure notice to the borrower. This notice must attach a list of at least five nonprofit local agencies the borrower can contact for aid.

After 90 days, the lender must send a demand letter to the borrower which will give the borrower 30 days to pay the amount owed, with an added late fee. At this point, the lender may sue the borrower and officially begin the foreclosure proceedings by filing and serving a summons and complaint. The borrower has up to 30 days to file a response. Failing to file an answer that lists defenses waives the rights to bring those defenses later. The answer must be worded properly and an experienced foreclosure defense attorney in New York should be consulted.

New York law specifies a six-year statute of limitations on the enforcement of contracts. A mortgage is a contract. Therefore, foreclosure actions are subject to this limit. Under the law, each payment due is considered a separate cause of action and becomes barred six years past its due date. This is why a lender will accelerate the debt upon default, declaring all remaining payments immediately due. Then, there are no longer multiple payments becoming barred in the future. If you receive a letter of acceleration, you should contact a Staten Island foreclosure defense attorney immediately.
Unless an error occurred in the process, the only way to stop a foreclosure is to prevent it. Once you have fallen behind on your mortgage payments, it is important to discuss your options for avoiding foreclosure with your lender. These options may include:
  • Become current on the loan. In this unlikely scenario, you would agree to pay the lender the entire late amount, plus late fees, by a certain date. The loan will then be reinstated.
  • Negotiate a loan forbearance. A forbearance is when the lender agrees to temporarily reduce or suspend your monthly mortgage payments. At the end of the forbearance period, your mortgage payments will start again and the missed payments will be added to the end of the loan.
  • Ask for a loan modification. In a loan modification, the lender agrees to change the terms of your mortgage loan, so that you can afford the payments. This could include making the term of your mortgage longer or lowering the interest rate. It is important to consult a foreclosure attorney in New York before agreeing to any type of new contract with your lender.
In accordance with federal law, in most cases, a lender cannot start a foreclosure until the borrower is more than 120 days overdue on mortgage payments. This 120-day pre-foreclosure period provides the homeowner with time to either get caught up on their loan payments or negotiate a foreclosure avoidance option, like a forbearance or modification. If you apply for loss mitigation during the 120-day period, the lender must evaluate your submission and contact you with a decision before it can foreclose. Your application should be looked over by a Staten Island foreclosure defense attorney before submission for the best chance at success.
A borrower will generally not go to jail if they default on their mortgage loan. In New York, foreclosures do involve judicial proceedings. A lender must hire an attorney, will who initiate a foreclosure lawsuit. The lawsuit does not involve criminal charges; it is a civil proceeding. If the borrower fails to maintain their property during the foreclosure process, the city or county could issue a citation. The property could even end up condomed. If the borrower then fails to pay the associated fines, a failure to show up for court could potentially result in an arrest warrant. If a borrower deliberately destroys a house once it is foreclosed on, the lender can sue them after the foreclosure sale for destruction of property, and may be able to press criminal charges. If you have been accused of property damage in a foreclosed house, seek out a foreclosure defense attorney in New York immediately.
Vacant houses that are going through foreclosure offer a nearly perfect opportunity for squatters to have a place to live without needing to pay rent or a house payment. These houses can go weeks without being supervised by the borrower or the lender. Neighbors often are not aware of who is and who isn’t supposed to be inside the residence. Squatting is illegal trespassing, though calling the police can sometimes seem useless, as they may not immediately remove the squatter due to legal technicalities. In some cases, the legal eviction process is the only way to remove a squatter from a foreclosed upon home.

When a lender starts a foreclosure case against the owner of your home, you must be informed within 10 days. This does not mean that you immediately have to move out or that you have to move out at all. It depends on how the case proceeds. The owner might be able to settle the case and keep the property. The lender may fail to prove its case for foreclosure. The property might be sold to another landlord who will keep you as a tenant. There is no need to panic at the sight of a notice.

During the foreclosure case, the owner of the property is still responsible for keeping your home in a livable condition and will still collect the rent. You cannot be evicted without a court order. If you are on friendly terms with your landlord, it may be appropriate to refer him or her to a Staten Island foreclosure defense attorney.

In some cases, panicked homeowners will pack up and leave their home once they have missed a few mortgage payments or received a foreclosure notice. However, you do have the legal right to remain living in your home until the foreclosure process is complete. Foreclosure judicial procedures can take a minimum of a few months and may even take longer than a year. A knowledgeable foreclosure defense attorney can advise you on precisely what your rights are throughout the foreclosure process in New York.
After a foreclosure sale is completed, federal law states that either the new owner or the lender must give you a written 90-day notice requiring you to move out, before they may file a case to evict you in court. Your Staten Island foreclosure defense attorney can advise you on the exact timeline of your case.
Robert Brown

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