Keep Home Your Own : New York Real Estate Lawyers & Attorneys : Rubin & Licatesi Law Firm : NY Loan Modification, Foreclosure : New Jersey, Long Island

More than 3 million friends, neighbors and families currently share similar messages among their intimate groups of friends, neighbors and family members.  Their common thread is one of homeownership fears, mortgage arrears and home equity loss.  These are the phone calls, e mails and texts we see in a regularly increasing tide of new clients calling our law firm.

Foreclosure worries and an apparent and readily foreseeable fallout most certainly blizzards our radar screen.   For many of the past several years, those on the sidelines watched with great interest and listened as they sat somewhat tucked away from the chaos and crisis.   Never having doubted the American struggle to keep home your own, the monthly payments were not just an “old fashioned” commitment.  

Now, many of these bench warmers are fully engaged after suffering a job loss, hardship or unseen economic downturn.   Process servers and bankruptcy petitions are leading edge indicators when business in those sectors are booming.  This is not a moral crisis faced during a short slump in family earning power. Essentially, many families are forced to recognize that their entire mortgage debt and repayment abilities need an overhaul. 

While most of the analysts continue to debate the reasons for the paucity of progress in loan modifications, a Suffolk County Supreme Court decision scrutinizes the lending practices of the past and sets the barrier in favor of a homeowner who seeks to keep home their own.  Justice Jeffrey Arlen Spinner was assigned an action entitled Emigrant Mortgage v Corcione and on April 16, 2010 published his findings in the foreclosure action. 

The facts are probably not much different for many of you who have visited our office or for those who are in the throes of a foreclosure action.   Perhaps it was a mortgage loan taken within the past several years with hope that shortly after, another refinance would be undertaken to bail out of a loan which had a high interest rate or adjusted or had other terms most unfavorable for long term borrowing.   Shortly thereafter, unexpected hardship, reduced income and real estate downturns create new and unfamiliar landscapes of non payment and credit score failings.   Visits and phone calls produced little, if any realistic hope of a restructure of homeownership debt. The loan modification process fails after scores and scores of faxes, e mails and submissions to your servicer. 

The homeowners in this action sought legal counsel and found refuge in the New York State Supreme Court.   Justice Spinner’s decision unfolds the process, revealing that the bank delayed modification to collect pre-action late charges, tax and escrow advances, lender legal fees and other foreclosure related fees from the defendants.  In a far reaching decision, projecting previously unfound protection for the homeowner, the Court ruled that these homeowners no longer are to be judged by the moral dilemmas attached to a foreclosure action.   Mortgage foreclosure actions are now litigated matters and procedural or substantive federal and state laws will be engaged to protect the rights of the homeowner. 

Our citizens in New York State have been provided with mandatory settlement conferences in foreclosure actions, and these very same laws “mandate that the parties to such an action act and negotiate in good faith……….In short, the conduct of Plaintiff in this matter has been over-reaching, shocking, willful and unconscionable, is wholly devoid of even so much as a scintilla of good faith and cannot be countenanced by this Court.”  

Justice Spinner’s “moral compass” found bad faith conduct on the part of the lender and awarded damages in favor of the homeowners to “serve as an appropriate deterrent to any future outrageous, improper and wrongful activities.”   This decision permeates the air in every foreclosure settlement part that I have attended. Lawyers, hearing officers and court personnel openly debate the long term reliance upon such a decision as the appeal process may ultimately determine the final outcome in this action.   However, the spin and the stir of this decision may have adjusted the compass to point to a plan of recovery. 

 As a result, homeowners and clients who now visit with our law firm or others focused on the protections of the home against foreclosure are encouraged that the failings of the loan modification process do not represent the end of the road.   The compass points to new ingredients of judicial enforcement and social change emanating from the Courtroom of Justice Spinner.   The emphasis on failing and foreclosure is no longer an option for those who choose to seek to keep home your own.

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The past several days have shown repeated sightings of pending Board approvals for chiefs at some of our major lending and banking institutions.  One such article stated that James Gorman, the chief executive at Morgan Stanley is in line for an $8.11 million dollar deferred stock bonus for his work and efforts in 2009.  Bonuses, it seems, are being taken for granted.  It is merely a question of how much. 

I would like take this moment to reflect upon the enormous devotion of time and analyses that must have been spent in order to present this bonus package to the Board for approval.  And maybe the time spent in such reflection allows a bit of a respite for us all, as my days are not ordinarily spent pondering such concerns. 

For most of us, the realities of the current economic crisis are quite a bit less pleasant than Mr. Gorman’s. Yesterday I met with a very humble client, a person who could so easily live right next door to any of us, a client who is responsible to her family and children and also responsible to a very large and respected corporation to show up for work every day, at exceptionally inglorious hours. 

 My client initially visited me the day before our country celebrated Independence Day, in the midst of an incredible summer rainstorm.  My impression was that she had a most serious issue to deal with. She most certainly must have been motivated to make such a drive, especially the night before a holiday weekend. She shared with me a notice she received earlier that week, stating, quite simply, that her house was going to be auctioned to the highest bidder in several weeks.  Her family had become an "endangered species".  

Our conversation explored the history of her ownership, and several interim departures and returns to the residence. But her family's commitment to stay in their house remained the consistent thread of our conversation.   We discussed short sales, refinancing, loan modification, considering all the possible solutions. Unfortunately, time was not on their side.  Now, some seven months later, the signs of her loss are once again apparent.  Cold trails of short sale contracts, mortgage loan applications, credit reports, mortgage consultants and court appearances may have held her hopes hostage for the last time. 

New clients also call with similar and dangerous experiences with process servers, foreclosure consultants and loan modification experts.  The reactions of these clients are quite typical.  Disbelief, anger and frustration head the list of emotions surrounding homeownership problems.  Each family that enters our doors has had their dreams of backyard barbecues, gatherings and holidays evaporate before their eyes. None expected it when they bought their homes.  I have yet to meet the borrower who entered the closing room planning foreclosure several years hence.   

This New Year provides the opportunity for relief.   Our state legislature has enacted stronger laws for our courts and judges which may hold off the foreclosure process and provide means of settlement and modification.  Changes can be immediate for those who find a foreclosure summons in their mail.  We know today that there are routes to travel and that the only shame is to do nothing. 

Monday morning I will be starting my day with a client who received a trial loan modification offer in the mail, after submitting reams of documents, pay stubs and bank statements over the past 5 months.  His unhappiness was capped by the suffering of his family and friends in Haiti.  Nevertheless, he will make his way to my office and when he leaves, more than likely, he will have one less problem on his plate, at least for the next several months. 

No one knows why he received a loan modification, although we can speculate on such success. For that matter, no one knows why the file next to his has been denied or not yet acted upon.   What we can definitely state is that there are sufficient and recognized methods that can be utilized to defer and perhaps overcome the foreclosure process.   It requires commitment on the part of the homeowner and a desire to change; a need to keep an open mind on the potential outcome; and a deep seated belief that reinstatement may be an achievable goal.  

True, I do not plan for million dollar bonus proposals and the lobster dinners this year were few and far between, but this is a time for resolutions and challenges to the silent majority of homeowners facing chaos and losing a little more sleep each night.  These are not illusions and the nervous worries are reality striking hard. 

These very same insecurities can become assets if turned into action.  Going to visit an attorney, bar association or foreclosure counseling center is no big deal.   This may seem obvious, but for so many, paralysis is the natural reaction.   If there is one thing that I can guarantee, it is that amazing results can happen with the synergy of programs and legislation now in place.   

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