Foreclosure Legal Advice

Foreclosures rarely come by surprise. Despite that, many homeowners find themselves unprepared to face the situation and make the best decisions for their families. Homeowners, however, are not to blame. The foreclosure process is unnecessarily complicated and can confuse even the most experienced homeowner. Thankfully, foreclosure attorneys deal with foreclosures every day and are experts in guiding homeowners through the process. Legal advice on foreclosure is available to all homeowners, and it is only a call away.

Do You Need a Foreclosure Attorney

Whether or not you need a foreclosure attorney will vary depending on your individual needs. If you are a resident of New York and wish to keep your home, you will almost certainly need legal foreclosure advice. This is because New York is a judicial foreclosure state. If you are simply willing to walk away from your home, however, you may be able to do so without needing assistance from an attorney. 

Judicial Foreclosure Vs. Nonjudicial Foreclosures

If you are facing foreclosure, it is important that you understand what type of foreclosure is taking place, namely, whether it is a judicial or nonjudicial foreclosure. Whether a foreclosure is judicial or nonjudicial will drastically change how the foreclosure process takes place. In New York state, all foreclosures must, by law, be judicial. New York is the exception, however, and most states today allow for non-judicial foreclosures.

Non-Judicial Foreclosures

Non-judicial foreclosures are just that – they take place outside the judicial system, meaning outside of a court. Non-judicial foreclosures were created as a streamlined mechanism for lenders to foreclose on homes without having to go through the lengthy judicial process and clog the courts with foreclosure lawsuits. A non-judicial foreclosure generally has the following steps:

• Power of Sale Provision – For a non-judicial sale to be possible, the mortgage agreement must contain a Power of Sale Clause. A power of sale clause will say that upon default of the mortgage (meaning you fall behind on your payments), the lender may sell the home at auction without going through the judicial foreclosure process. Almost every mortgage in a state that allows non-judicial foreclosures will contain the provision.
• Notice of Intent to Foreclosure – Once you have fallen behind on your payments, the lender will provide you notice of foreclosure. This generally must be given to you in a number of ways, including by mail, in person, on the actual home, and published in a newspaper. Different states have different requirements. 
• Equitable Redemption Period – After you receive notice of the intent to auction the home, you have the right to redeem the home by paying off the balance of the mortgage before the auction sale.
• Auction Sale – Once the notice period has ended, the home will be sold at public auction to the highest bidder. The proceeds of the sale will be applied to the outstanding mortgage balance and the excess proceeds, if any, will be given to the homeowner.
• Statutory Redemption Period – After the auction sale, states typically give homeowners between 6 and 12 months to “redeem” the home by paying the outstanding mortgage balance plus the cost of the foreclosure sale to the lender. 
• Eviction – If you do not redeem your home after the auction sale, you will likely be evicted after the end of the statutory redemption period. This process will be done through the court system, exactly as if you were a renter in an apartment and overstayed your lease without paying. 

Judicial Foreclosure

A judicial foreclosure is a typical foreclosure that was used before non-judicial foreclosures became popular. In a judicial foreclosure, the lender will file a lawsuit against you in the court where the home is located. Like in any typical lawsuit, you will go through the entirety of the litigation process before you can be removed from the home. This means that you and your attorney will file a response to the lawsuit, engage in discovery, file motions, and eventually go to trial or have the judge rule on whether the foreclosure may take place. 

Because the homeowner is a defendant in a lawsuit, judicial foreclosures can take anywhere from one to two years depending on complexity of the case. Foreclosure can take even longer if the current federal and state Covid-19 foreclosure moratoriums remain in effect. This means that lenders in judicial foreclosure jurisdictions are generally more willing to compromise with homeowners in order to avoid the cost and delay of litigating the foreclosure. 

Hud-approved Housing Counselor Vs Attorney

A HUD approved housing counselor is an expert in loss mitigation. They are generally provided free and receive compensation from the government or your lender. They will work with your lender in order to help find alternatives to foreclosure, such as loan modification or a repayment plan. Because of this, HUD counselors are a key resource in fighting foreclosure. What a HUD counselor is not, however, is a licensed attorney. A HUD counselor cannot assist you in the judicial foreclosure process by filing the necessary documents to prevent a default and fighting the lender in court. 

When Do You Need a Legal Advice On Foreclosure

Many people never consider whether they need legal advice for foreclosure actions. This, however, is sometimes a mistake. Home foreclosure advice from a legal professional may be extremely helpful in certain situations, such as if you have a meritorious legal defense to the foreclosure. An attorney is also often recommended in judicial foreclosure states, as it is extremely difficult to navigate the judicial process without the assistance of an attorney. If you are ready to move on from your home, however, and do not wish to extend the time in which you can stay there rent-free, a foreclosure attorney may not be necessary.

Oftentimes, homeowners are simply not aware of the options available to them. For example, homeowners that are severely underwater on their mortgages may not be aware that filing for bankruptcy can help delay the foreclosure proceedings. This means that they can extend the time in which they stay in their homes so that they can find a new job, find alternative living arrangements, and get their finances in order. A home foreclosure attorney can help you weigh all of your options. 

What Foreclosure Legal Advice Includes

Foreclosure attorneys can advise homeowners on a number of things. Typically, a foreclosure attorney will want to know how the homeowner plans on handling the foreclosure. If a homeowner seeks to simply delay the foreclosure process while they seek for alternative housing, there are many methods available to do so. On the other hand, homeowners wishing to keep their homes will find a foreclosure attorney helpful in fighting the lender in the courtroom and stopping the foreclosure all together. 

If you are seeking legal advice, foreclosure professionals at the Moshes Law, P.C. are here to help. Our attorneys have assisted hundreds of New York residents to successfully navigate the foreclosure processes and keep their homes or move on their own terms. If you are seeking foreclosure advice, contact an experienced and professional attorney at the Moshes Law Firm today.

What Does a Foreclosure Defense Lawyer Actually Do

In New York, a foreclosure attorney will spend much of his or her time discussing how you want to resolve the situation. The attorney will then attempt to reach an agreement with the lender on your behalf. In addition to these negotiations, however, the attorney must also tend to the judicial proceedings. Failure to adequately respond to all legal proceedings may result in a default against you, meaning that the foreclosure may take place much faster than otherwise allowed. Generally, a foreclosure attorney will tend to the following items during the judicial proceedings:

1. File a Notice of Appearance 
2. Answer the Summons and Complaint
3. Appear at the Settlement Conference or other Mediation 
4. Use Effective Foreclosure Defense Strategies 
5. Save You from a Deficiency Judgment 

File a Notice of Appearance

A notice of appearance can be two things in New York. First, a typical notice of appearance will indicate to the court that the attorney will be representing you going forward. This means that the lender can no longer contact you directly regarding the lawsuit, and must instead contact your attorney. This is helpful for individuals who are sensitive to the oftentimes harsh language and behavior of lenders.

A notice of appearance can also be utilized in a foreclosure action when the homeowner does not wish to file an answer at that time. Rather than answering the complaint, the homeowner or his or her attorney can file a notice of appearance. This will tell the court that you are aware of the pending proceedings and wish to be updated on any developments, but do not wish to formally contest it at this time. This can be useful for homeowners who simply want to engage in the settlement conference with the lender as soon as possible or who do not want to contest the foreclosure, but want to be informed of any legal developments in the case, such as when a judgment is entered. 

Answer the Summons and Complaint

In New York, a judicial foreclosure begins through the process of the lender filing a summons and complaint against the homeowner. This is the process by which any normal lawsuit is filed. The summons and complaint will spell out to the court, from the lender’s perspective, exactly why a foreclosure is necessary. It will typically indicate that you entered into a mortgage with the lender and failed to make numerous payments. Depending on how the summons and complaint are served upon you, you will have either twenty or thirty days to respond to the complaint. 

The response is where you indicate your defense to the foreclosure. This can be either a clear defense, such as the lender failing to follow the applicable state law for foreclosures, or a vague defense that you, along with your attorney, will develop at a later date as facts are determined in discovery. Failure to file a response may lead to a default judgment being issued against you.

Appear at Settlement Conferences or Mediation

Foreclosure mediation is an important part of the foreclosure process. New York requires, by law, that the lender engage in mediation with the homeowner. Other states do not have this protection. In New York, the mandated mediation will take place at a settlement conference, which must occur within 60 days after you were served with the summons and complaint. This is generally where most foreclosures are resolved. 

At the settlement conference, you, your attorney, the lender, and a third party will sit down at a time and date determined by the court. The third party will generally be a court employee, such as an attorney or referee. The third-party will then facilitate negotiations between you and the lender for settling the matter and avoiding foreclosure. These can include agreements such as a deed in lieu of foreclosure, a short sale, a mortgage modification, a refinance, a forbearance agreement, and more. If the parties fail to reach an agreement, they may request that the court schedule an additional settlement conference in the future. They can then take additional time to discuss the matter outside of the courtroom. Generally, however, the parties will have an idea of what to expect prior to the first settlement conference.

If you did not file an answer to the summons and complaint initially, because you filed only a notice of appearance, you will have an additional 30 days to file the answer after the completion of the first settlement conference. This is typically done if you were hoping to settle the matter at the settlement conference, but failed to do so, and intend to now litigate the foreclosure before the court. 

Use Effective Foreclosure Defense Strategies

A foreclosure attorney may also utilize some proven techniques for defending against foreclosure. These include strategies to delay the foreclosure and put the homeowner in a better position to negotiate with the ledner or mandating that the lender produce all of the necessary documents, which they may have lost overtime. One of the most simple and effective strategies is to make sure that the lender has complied with the numerous legal foreclosure requirements in New York. 

Save You from a Deficiency Judgment

A deficiency judgment occurs when your home is sold at auction, but the sales proceeds do not cover the outstanding amount. This can oftentimes be anticipated with the lender and negotiated before the sale. Additionally, New York State has laws protecting homeowners against deficiency judgments in most situations. 

Does Attorney Have to Handle the Entire Foreclosure

An attorney does not have to handle the entire foreclosure. Many of our clients simply hire an attorney to respond to the legal proceedings, so that they avoid a default or deficiency judgement against them. They then utilize a HUD counselor or negotiate with the lender by themselves. This is a more affordable option for many homeowners. 

If you are facing a foreclosure and need assistance responding to the legal proceedings, do not hesitate due to cost. Contact a legal professional at the Moshes Law, P.C. today. Whether you want an attorney to handle the entire foreclosure or simply respond to legal proceedings, we can work with you to ensure excellent and affordable representation. 

FAQ:

Get Foreclosure Legal Advice From an Expert Attorney

If you are facing foreclosure, you do not have to go at it alone. Many people are hesitant to contact an attorney because they are worried about cost. At the Moshes Law Firm, we never want people to skip adequate legal representation due to cost. That is why we offer free initial consultations over the phone. If you cannot afford an attorney, we can help connect you to legal counsel  and aid services that provide free legal advice for foreclosure over the phone. 

You have rights under New York law as a homeowner. If you hesitate to promptly act on those rights, you may lose them. If you are facing foreclosure and want help with where to turn, contact us today for a free consultation.