Falling behind on a mortgage payment is something that many Long Island families face at one time or another. But the looming threat of foreclosure does not have to write the end of the story for homeowners. Instead of being a foregone conclusion, foreclosures can be delayed or stopped completely with the right strategies and legal representation. Let’s look at what the foreclosure process looks like here in New York State, what the options are for homeowners, and how our Long Island foreclosure defense attorneys can help your family avoid foreclosure in the state of New York.
What is the Foreclosure Process in New York?
While the hearing that you might be forced into the foreclosure process for a mortgage and property you own, you will always be informed of the potential ahead of time by your lender. The first part of the process is for the lender to let you know that a foreclosure lawsuit is possible or impending. At this stage, the pre-foreclosure notice is required to be delivered to the homeowner at least 90 days prior to any legal proceedings. This notice will provide details regarding the mortgage including how many days payments are in default (unpaid), the amount of money owed to catch up, the phone number of the lender, among other things. Long Island omeowners can immediately use these resources or contact an attorney at this stage to work on the legal defense of the foreclosure process.
The next step in the process is the actual notice of foreclosure, which is the legal lawsuit that the lender or bank has filed against the homeowner. This legal document is called a Summons and Complaint and informs the defendant borrower (the mortgage holder) of the details of the case as well as provides the information to the court. At this point, the homeowner is still legally in possession of the property and does not need to move or change residences due to the notice of foreclosure.
After the notice, the mortgage holder must answer the notice by telling the Court about their side of the situation. While a homeowner can complete this process, legal representation can provide a strong defense to the foreclosure notice. At this stage, the homeowner has the opportunity, with the help of a legal team, to countersue the bank. This legal process is crucial for a mortgage holder who is in default and at risk of foreclosure of their property as each of these types of lawsuits has the possible outcome of slowing or stopping the process of losing the home. Our local Long Island legal counsel can discuss each kind in detail and provide the necessary information to help those at risk of foreclosure to file the most effective and appropriate lawsuit. The three most commonly filed suits are related to predatory lending practices, truth in lending laws, and fraud or misrepresentation by a bank.
Predatory Lending Practices Counter Lawsuit
One of the foreclosure defense options we offer Long Island homeowners is to file a lawsuit regarding predatory lending practices by the bank or lending institution. This suit focuses on the unfairness or misrepresentation by lending agencies that cause homeowners to agree to mortgages that they are not able to afford.
Counter Suit for Violating “Truth in Lending” Laws
Another countersuit that can be filed on behalf of a mortgage holder that is fighting foreclosure is one that addresses “truth in lending” laws surrounding mortgages. When a homeowner and legal counsel file for this type of suit, they are addressing unfair or inaccurate credit reporting.
Suing for Fraud or Misrepresentation
The third common type of countersuit that can be filed in foreclosure defense is connected to showing fraud or misrepresentation by the bank or lending agent. A suit alleging fraud or misrepresentation by the lending agent will typically attempt to prove that the contracts in question are fraudulent or not clearly stated to the homeowner.
Just like any other court proceeding, a foreclosure process will culminate in a trial unless an agreement to settle or withdraw the foreclosure action is made prior to the trial date at a pre-trial conference. This trial is in front of a judge, rather than a jury, and the Court will hear all of the evidence and rebuttals regarding the foreclosure process.
Possible Defenses for Foreclosure
Long Island homeowners that are facing foreclosure have more than simply filing countersuits against the bank or lending institution. One other possibility is for legal counsel to work through the court system to convince the lender to modify the mortgage agreement in favor of the homeowner. If this happens, then the foreclosure proceedings may be averted when the legal team and the bank come to a new agreement on what the financial commitment of the homeowner regarding the loan modifications are and will be going forward.
Additionally, another potential defense for foreclosure can involve a declaration of bankruptcy. When bankruptcy is legally filed for a homeowner, no debt collector may further call, write, or make any further attempt to legally collect a debt. The time period during the declaration of bankruptcy provides for the mortgage holder to remain in their home, assisting in the potential defenses of the foreclosure.
How Long Can I Stay in My Home?
A Long Island homeowner who receives a pre-foreclosure notice, a notice of foreclosure, or one who files for bankruptcy does not need to leave their home at that time. In fact, many foreclosure proceedings last between one and two years in length before resolution, with the longer times represented by the cases that have included legally filed lawsuits on behalf of the homeowner. If a mortgage modification is sought and confirmed, or the foreclosure process is withdrawn by the Court for any reason, then the homeowner will not face moving from their home. Regardless of the outcome, simply starting the process of foreclosure does not mean that a homeowner will necessarily have to leave their home.
How Long Can I Stay in My Home?
Depending on what is involved in the foreclosure process for a mortgage holder, the overall time it takes from start to completion is usually quite lengthy. When the courts are backed up, then court proceedings can be delayed and stretch the process out to up to two years. However, it is fairly common for the whole foreclosure process to move slower when the homeowner retains a lawyer.
Legal Representation During the Foreclosure Process
One of the common questions that homeowners ask us is if they need to secure legal counsel during the foreclosure process. While not required, doing so could mean the difference between losing or saving your home. The best time to contact an attorney is prior to any pre-notice of foreclosure occurring. In fact, anytime a mortgage holder has fallen behind on payments to their lender is the right time to contact legal representation and may result in being able to avoid the foreclosure proceedings altogether. An attorney can provide counsel to help the homeowner potentially avoid the process as well as guide them through an upcoming foreclosure process.
Additionally, our foreclosure legal counsel can help to ensure that the homeowner is meeting all court deadlines, files the correct legal documents to comply with the Court, as well as assist in deciding what, if any, countersuits should be taken. A lawyer will also be able to guide a mortgage holder through a potential plan to declare bankruptcy, as well, providing the legal counsel needed to make this type of decision. Anyone facing foreclosure needs an advocate that fights for the homeowner during the foreclosure process.
The prospect of losing your home is scary but facing foreclosure alone might mean missing out on legal strategies that could have stopped the process from happening altogether. Using the guidance and skill of a law firm that specializes in foreclosure cases is the best way to ensure that your situation doesn’t end up with you losing your home. Our attorneys can help decide the best and potentially most successful course of action to take no matter what stage of foreclosure a homeowner is in.