Tag Archives: foreclosure defense

Can the Bank Evict me from my Foreclosed Home without any Legal Process?

Question: We have been working with our bank on a loan modification for over a year. When we recently came home, all of our belongings were in the garage and workers were in the house painting. We were given no notice of a foreclosure sale nor were we given eviction papers. The workers also changed the locks, although we still have access to the property. We filed papers with the Attorney General to stop any foreclosure action. We are missing some of our valuable personal belongings and some of our property was damaged. We did not abandon the property. We were considering changing the locks back and making them evict us as the Sheriff was not notified. What can we do to stop the foreclosure action right now and get the workers out who are using the services we pay for?

Response: Were you in foreclosure? Foreclosure is a long, legal process and even while you are trying to modify the loan, foreclosure process can still occur unless the loan is in a trial plan or permanently modified. However, the court must first grant the Judgment of Foreclosure and Sale, the bank then has to advertise the foreclosure sale in the newspaper for the next month and afterward, the sale property is sold off at an auction and goes to the highest bidder (most often to the bank itself). If someone is still occupying the property, the bank cannot just come in, change the locks but would rather have to evict the holdover tenant through Landlord/Tenant court. Unless the property was vacant, I can’t imagine someone getting so confused as to assume the property is not occupied. Being that the process takes quite some time, it is possible that it is not the contractors from the bank who are occupying the property but someone who noticed that the property has been vacant for some time and is taking advantage of the situation. Also, if the foreclosure sale did indeed take place, you would need to do a Motion to Vacate Judgment of Foreclosure and Sale. It can be rather complicated and I would suggest finding a professional attorney for help.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2016 Law Office of Svetlana Kaplun, P.C.

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Foreclosure after Bank’s Refusal to Honor an Executed Loan Modification

Question: My bank refused to honor a signed loan modification offer that was presented about two years ago. We fulfilled all obligations, returned all paperwork and made payment via cashier’s check. We have not heard from the bank and now they claim the loan modification offer did not receive final approval and are threatening to start the foreclosure proceedings. We have made all payments on time. Do we need to retain an attorney and will we need to sue them?

Response: It is very likely that when you received a loan modification, it was given prior to stringent requirements that are taking place now. Banks used to give out loan modifications like candy and then deny everyone. Most people then had to reapply for a loan modification once the bank was able to verify all the necessary documents. Have you tried reapplying for a loan modification? It is likely that they could review you again and grant a loan modification this time around. If not, even if the bank commences a foreclosure action, you have good arguments for the court, which will most likely take your side and will exert pressure on the bank to enforce the loan modification or grant another one since the bank is not acting in “good faith.”

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2016 Law Office of Svetlana Kaplun, P.C.

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Can I File an Answer to Foreclosure Complaint Myself?

Question: I received a summons about foreclosure on my house. As of beginning of this year we were accepted into a Home Modification program (HAMP) and have already made a couple of payments. The servicer of our loan is telling us that this just crossed in the mail and is a matter of formality since we are in the trial payment period. I searched for a date and have just realized that the motion or the answer needs to be filed this week. I just want to file the motion. If anything additional should occur I would hire an attorney to handle this. Is this something I can do myself? I have contacted a number of attorneys to get more information on this.

Response: If you are in a HAMP trial period, the loan will convert into a permanent loan modification and the foreclosure will be discontinued by the bank’s attorneys. To be on the safe side, you should do a simple answer that would allow you to preserve defenses in case the loan modification option does not work out. You don’t need to do a motion especially since you are on the path of modifying your loan. Just keep making timely trial payments and the loan will be modified and the case will be discontinued.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2016 Law Office of Svetlana Kaplun, P.C.

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HAMP Loan Modification and Credit Report

Question: Will getting a HAMP loan modification be reflected on my credit report?

Response: Yes, if the loan is permanently modified under HAMP, the bank will report that to the credit bureaus and your credit report will state loan modified under HAMP or under a government program. Initially, the credit score will drop but once you begin making timely payments again, the credit score will start increasing.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2016 Law Office of Svetlana Kaplun, P.C.

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What’s Less Costly: Foreclosure or Short Sale?

Question: I have a mortgage with one bank and an equity line of credit with another bank. If I let my home go into foreclosure, can the bank sue me for the equity amount? How does this work? My mortgage balance is slightly lower than the value of my house. With the real estate prices down, if I put my home on the market for its market value, with all the additional fees and closing costs, I would have to make an investment into having it sold via a foreclosure.

Response: You are better off doing a short sale than letting it go into foreclosure. Foreclosure should always be the last alternative as it will most adversely affect your credit. Based on your description, both loans are secured by equity in your home, i.e., if the house sells for its market value or even less, both lenders will be able to obtain what is due and owing to them. However, if you are concerned about putting money out-of-pocket, then consider a short sale since the bank will pay for all sale-related expenses and even offer you money to do a short sale, if the house is your primary residence. However, to answer your question specifically, the lender that gave you an equity line is unlikely to go after you because based on the description you provided, they will likely get their money (ex: if the house sells for its market value, the first lender will get what is owed to them, the balance will go to the second lender, and if anything is remaining, you can even claim the rest).

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2016 Law Office of Svetlana Kaplun, P.C.

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Negotiating Time with a Bank to Move from Foreclosed Property

Question: My house is supposed to be authorized for foreclosure by the court tomorrow. How much time do I have to get my things out? I have tried HARP in the past and failed as I was unemployed for some time.

Response: After foreclosure takes place, the bank or whoever purchases the property will become the new owner and you will become a holdover tenant if you remain on the property. Oftentimes, the bank will offer money to a holdover tenant to leave or will have to bring an eviction proceeding in the landlord/tenant court to get you out. It is likely that you would be able to negotiate with the bank that you need a certain amount of time to leave and they will let you to avoid additional legal expenses.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2016 Law Office of Svetlana Kaplun, P.C.

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Stopping Foreclosure by Reinstating the Mortgage

Question: We were served with foreclosure papers last week, is there any way to stop the foreclosure? We have a way to obtain the past due amount. We thought the payments were getting automatically withdrawn and did not receive the notifications due to the wrong email address the bank had for us. We tried to call the mortgage company, but instead were told to contact the attorney that filed the papers.

Response: Request the reinstatement amount from the bank’s attorneys, reinstate the loan, and they will discontinue the foreclosure action. Foreclosure is a lengthy process and before the bank can even proceed with a residential foreclosure, you will attend a mandatory settlement conference, where you too will have an opportunity to try to work out an option to save your home, i.e., loan modification, reinstatement, short sale, etc.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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Considering Foreclosure for my Underwater Home

Question: I am considering letting my underwater house go into foreclosure after not being able to reach an agreement with my mortgage holder. How long do I have before I have to leave my house and will they be able to put a lien on another home I just purchased? I have tried contacting the bank that originally underwrote my mortgage, but they refused to help me and sold my mortgage to another bank. I tried to unsuccessfully refinance my mortgage with that bank. My current bank says it will modify my loan, but never calls me back with the information.

Response: If your objective was to get a loan modification, try to modify it first. The banks are so overwhelmed with all the borrowers who defaulted on their mortgage payments, their response time can be quite slow. Be as aggressive as you can in reaching the bank at your own initiative if that is what you are interested in or hire a professional attorney who can help you with preparing the documents. Do not let the house go into foreclosure as it will affect you negatively in many different ways, from affecting your credit to a deficiency judgment. It is much better for borrowers and the bank alike if you do a short sale. With a properly negotiated short sale, you will not be responsible for the difference in the amount of debt owed to the bank and the short sale price (although there may be consequences with the IRS).

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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Mortgage on my Foreclosed Home Remained Active in Error

Question: My investment property was foreclosed on ten years ago. The house had a first and second mortgages on it. The house was foreclosed on and sold, but the lender for the second mortgage was never notified that I no longer have the house and up to now, they were still reporting me with an active loan. The second mortgage company has now been informed and they are now reporting my loan as a charge off. How did the law office foreclose and sell my home with an active loan on it and not inform the second mortgage company? Do I have any recourse to go after the law firm that foreclosed on my investment property?

Response: A charge off is when the bank writes off a loan and usually ends up selling it to a collection agency. Loans generally get charged off when you haven’t paid in a while and there is no more equity in the home for the bank to go after. You can look at your foreclosure papers to notice if the 2nd mortgage holder was put on notice by checking if their address is mentioned there. If a mistake indeed occurred, then the first mortgagee would need to conduct a strict foreclosure, i.e., commencing another foreclosure action and serving only the unnamed defendant. Otherwise, the 1st bank does not have clear title to the property and would not be able to conduct a foreclosure sale. You should definitely write a letter to the three major credit bureaus, reporting a dispute of the reported information and sending them the supporting evidence.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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Can a Mortgage Become an Unsecured Instrument after a Bankruptcy Filing?

Question: I filed for bankruptcy a couple of years ago. Prior to that I asked for financial assistance on my home from my lender, who did not respond. When the bankruptcy was discharged, I again contacted my lender requesting to relinquish title in lieu of foreclosure. Still I got no response. I quit making payments on the property later that year. About a year later the lender contacted me. I asked again about title in lieu of payment and was told I would need to complete a financial statement. Since my financial health had improved since the bankruptcy, I declined. I have not heard from the lender in over a year except for delinquent payment notices. Can I be held liable for any property other than the secured property when the bank finally gets around to foreclosing?

Response: A mortgaged property is a secured property (mortgage itself is the security instrument). When you file for bankruptcy, a mortgage does not become unsecured unless there is not enough equity to preserve the bank’s interest. In that case, only that portion can become unsecured (ex: mortgage $300,000; fair market value=$240,000; unsecured amount=$60,000). By signing a mortgage document, you give the bank a right to go after your home if you default on your payments. When the property is unsecured, the creditor can still go after that amount but they cannot go after your property. So, if foreclosure takes place, the bank can essentially go after you for a deficiency judgment. Consider filling out that financial statement to do a deed-in-lieu of foreclosure or a short sale. What the bank looks for is affordability of mortgage payments. Just because your financial situation improved does not mean you can pay all of your arrears back and stay current on your payments. If the property is clear of any tenants, there is a chance that the bank would accept a deed-in-lieu of foreclosure.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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Mortgages Not Discharged by a Bankruptcy

Question: I have a question about bankruptcy. After filing for bankruptcy a few years ago, I thought my mortgages were discharged. I never heard from the bank except when they would inform me about how much I owe in order to catch up with my payments, but now I am in a desperate need to understand if and when the bank is going to proceed with a foreclosure. How long does it take for foreclosure to take affect?

Response: You should contact a bankruptcy attorney so he/she could answer your questions about whether your mortgages were or were not indeed discharged. If they were discharged, then the trustee will be the one to sell the properties to satisfy the mortgages (whether partially or fully). If they were not discharged, then you are responsible for the mortgage payments. Foreclosure these days takes a lot longer than it did in the past and can be a matter of months or years, depending on when you stopped making your mortgage payments, who the servicer is, as well as your intentions for the home. If you do not intend to keep the property and will not resist foreclosure, then it takes a shorter amount of time. However, waiting for foreclosure to take place is never advisable. If discharge of your mortgages did not take place, please consider looking into a short sale or a deed in lieu of foreclosure.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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Filing a “Pro Se” Motion to Have a Foreclosure Case Dismissed

Question: A foreclosure suit was filed against me in 2010. The home was sold through a short sale, with the involvement of the bank in late 2011. The price was within 90% of the mortgage amount and the bank waived any right to collect “shortages” in the suit they filed. When I checked with the court recently the suit is still active. Although there is nothing pending, no judge assigned, etc. What language would I use in a “pro se” motion to have the case dismissed?

Response: From your description, it appears that short sale took place approximately a year ago. At this point, the case is sitting in court without any activity. Because of the backlog of foreclosure cases, sometimes, it takes banks longer than generally anticipated to proceed with their action, or as is the case here, with the discontinuance. Once the property sells and the bank receives its proceeds (short sale cannot take place unless agreed by the bank), the foreclosure action must be discontinued and the bank will get to it sooner or later. If you wanted to bring a motion at your own initiative, you would have to be the one to file for the Request for Judicial Intervention (RJI), thus assigning a judge and then you could bring a motion. Alternatively, you could bring an Order to Show Cause to have the judge hear you out. Essentially, it would be a lot of time and effort on your part when the case is already closed.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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Can Loan Modification or Refinancing be Offered to the Estate of the Deceased?

Question: My husband is listed on the mortgage of our home only, he passed away a few years ago, the bank will not refinance or let me assume the responsibility for the mortgage. I am on the title, if I let the home go to foreclosure will I be responsible for any tax issues. My home is under water by a substantial amount. I tried refinancing with my current bank and other lenders, but was denied several times as the lenders said that I am not the original borrower on the loan.

Response: Situations like these are very tricky. Your deceased husband signed the contract (note and mortgage) with the bank, therefore, he was the one in privity of contract with the bank. You are not in privity of contract with the bank and you have no rights to sign a new agreement, whether it would be a refinancing or a loan modification. Only the borrower can sign the new contract. So far, I have only witnessed one bank offer a loan modification to the Estate of the Deceased. Generally, that is not the case. Some banks will consider an assumption where you take over the original terms of the loan but you have to show qualifying financials. This does not work if you have no income, i.e., your income has to support the mortgage and any arrears, if applicable. If you want to stay in the house, the best option is to continue making payments as before until the loan is paid off unless you are already in default and can no longer reinstate the mortgage. Finally, if the bank forecloses on the home, you, personally, would not be responsible for the deficiency. However, the bank may go after the estate and in a case like yours, it could affect you similarly. As of recently, many banks have stopped pursuing deficiency judgments because it is very hard to collect that money from people who don’t have much to begin with and lost their last assets. Whether they choose to pursue it or not, they do not waive that right.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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Should I still be Responsible for a Surrendered Property through Bankruptcy?

Question: I filed for bankruptcy over a year ago in New York State; all of my debts were discharged. I opted to surrender my home. I have not heard from my bank since before the bankruptcy filing. I was unaware that I still owned the property until earlier this year when I was cited by the city for code violations. I fixed the problems, but do not have the means to continue to care for this property. It is currently unlivable. I recently received a notice of tax sale from my county. Can I sell this property? Will the county take it at a later date and sell it for taxes owed? I have doubts that my bank will ever get around to taking claim of the house. I tried to do a short sale and received many offers which were all turned down by my bank. They repeatedly lost paperwork and misdirected my calls. Once the bankruptcy went through last year I stopped trying.

Response: If you surrendered the property through a bankruptcy, then maintenance is no longer your responsibility. Trustee is the one who disperses the assets and maybe there is a delay, but considering that you willingly surrendered the property, it should no longer be your concern.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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Stopping Foreclosure When Time is of the Essence

Question: My house has been foreclosed upon. At no point during the proceeding did the bank produce, in spite of legal demands made upon the bank, an original copy of the promissory note and Deed of Trust. It is my understanding, under New York law, that a foreclosure cannot go forward without the original instrument. Nevertheless, in my case, foreclosure was allowed to proceed. I now have to vacate the property within two weeks. Please let me know any winning strategies to stop the foreclosure.

Response: Time is of the essence in a case like this. If there are faults with the procedural aspects of the foreclosure process, you need to consult with a professional attorney who would be willing to bring a Motion to Vacate Judgment of Foreclosure and Sale. Of course, you need winning arguments to actually get the motion granted. It is very important to do this as soon as possible because the more time goes by, the more prejudicial the outcome becomes to the bank and the chances of a favorable resolution become less likely. Good luck!

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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Bringing Order to Show Cause with Temporary Restraining Order (TRO) vs. “Produce the Note” Suit to Postpone Foreclosure Sale

Question: My home has a pending foreclosure for next week. My lender is willing to modify my loan for a significant down payment, the full amount of which I will only have in two weeks. They are unwilling to extend my deadline for that long. Can I file a “Produce the Note” suit to buy me the extra time needed to complete the loan modification?

Response: Generally, when a foreclosure sale date is scheduled, the banks are unwilling to do a loan modification unless you can request to postpone the public foreclosure sale date. Whether they will consent or not is in the bank’s discretion but they will generally agree to it if your loan modification process is active and likely to happen. Also, if the bank is unwilling to do that, you can bring an Order to Show Cause with a Temporary Restraining Order (TRO) through the court and have the judge make a determination on an emergency basis. Most likely, judges will grant these petitions, especially if you can show them good faith on your part in trying to save your home.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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Negotiating with a Bank to Avoid a Deficiency Judgment

Question: What can I expect from a real estate short-sale as far as deficiency judgments? I am in the process of attempting a short sale, but am worried the bank will allow the short sale, but a judgment will remain that can come back and haunt me years later. I’ve been told that it may come down to me needing to just let it foreclose and go to auction for a better chance of eliminating a deficiency judgment.

Response: When you do a short sale, you can negotiate with the bank to avoid a deficiency judgment. In this economy, most banks agree. However, at the end of the year, you will receive notice from the IRS regarding the debt cancelled. The amount forgiven by the bank (difference between what you owed and what you sold the house for) will be regarded as income and you would have to pay capital gains taxes on that. Speak to your accountant about rules governing the cancelled debt. In 2012, that requirement was waived. I am not sure if it will be extended through 2013 and so on. However, if you do not short sell your home and the bank forecloses, then the bank can come back after you for the deficiency judgment in this case as well. Short sale is more favorable than foreclosure.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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How to Reverse an Unlawful Foreclosure?

Question: I have a problem with foreclosure/eviction. I am being evicted from my home that has been in the family for many generations. I was never served with a foreclosure sale notice and was not notified that the property was in foreclosure. When we found out, we have been trying for several years to get a payoff amount so we could refinance but no one would give it to us. Now we are being evicted. Can you help? We want to keep and buy our property but there is no one willing to work with us.

Response: You have to get a knowledgeable attorney who will bring a Motion to Vacate the Judgment of Foreclosure and Sale. If you can prove that you were never properly served and foreclosure took place unlawfully, the court can reverse the original decision. Generally, if that happens, the bank will then have to recommence the foreclosure procedure and start from scratch. You can win some time in trying to either reinstate the loan or try to modify the loan to save your home. The trick here, of course, is winning on reversal of the judgment (time is of the essence here).

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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Can the Bank Garnish a Senior Citizen’s Retirement Income in the Process of Recovering a Deficiency Judgment from a Foreclosure?

Question: I co-signed for a mortgage for one of my kids and they are now in a foreclosure. What can the bank do to me if foreclosure goes forward? I am a retired senior citizen and I have a mortgage with no equity. I have a military service retirement income and a social security income. Please let me know what I can do.

Response: Since you co-signed, you are financially obligated under the note and mortgage. You will be a named Defendant in the lawsuit and if foreclosure goes through and the bank tries to recover a deficiency judgment for the amount owed to the bank after the foreclosure sale takes place, the bank will be seeking how to actually recover that money. Your pension and retirement income cannot be touched. You have a home without equity but the bank can still record a lien against it in hope of recovering its money when you decide to sell your home. You can’t sell your home with a lien on it. If you keep living there, then the lien will just stay there but you can continue to live in your house. If your kids have assets, the bank may go after their assets instead. If your kids are not planning to fight to save their home, then they might as well do a short sale or a deed-in-lieu of foreclosure to avoid the deficiency judgment.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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Can Banks Foreclose Over Two Missed Mortgage Payments?

Question: My bank is threatening me with foreclosure over two missed payments. We have been in contact with them to try to work it out but we got nowhere. Can they start foreclosure over two missed payments? They told me that they would not accept any more payments unless we paid the full amount of missed payments.

Response: The bank likes to threaten a lot but their words are often empty threats. In order to start foreclosure, they first have to send a notice of missed payment(s) and the amount due and 90-day letter stating that if balance is not paid, they can start foreclosure. Until you get this letter(s), foreclosure process cannot begin and if it does, it is defective. Whether you can get a loan modification depends on the bank/servicer. You can go on MakingHomeAffordable website to see which servicers participate in HAMP. If you get a loan modification, your missed payments will be added to unpaid principal balance and you won’t even feel them in your payments over the years. It may be too soon though to discuss a loan modification since banks generally wait until three missed payments.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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The Bank is Enforcing a Deficiency Judgment Against Me, What Can I Do?

Question: I just went through a foreclosure and now the mortgage insurance company wants the difference of tens of thousands of dollars from me as this was the difference between what I owed and what my home was sold for at foreclosure auction. Can they access my bank account? I do not have a job right now and am attending school.

Response: Yes, but first the bank has to sue you to get a judgment against you and then try to either garnish your wages or your bank account or your tax refund or put a lien on your property if you own another home to satisfy that deficiency. If you know you are anticipating being sued, it is best to appear in court and try to work it out and maybe settle for a lesser sum than to wait until a default judgment is granted against you and the bank will look for a way to seize your account.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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Attempting a Short Sale After the Motion for Default Has Been Filed

Question: If a foreclosure process is in progress and owner has failed to file a pleading within the time required by law and a motion for default has been filed by the bank for the purpose of accelerating the foreclosure process, can the property owner attempt a short sale?

Response: Generally, until the foreclosure sale is scheduled or the property has already been sold, the borrower under the loan can attempt loss mitigation options to avoid foreclosure sale, including the short sale option. However, from the question, it is not clear at what stage the foreclosure process is in. If the borrower did not file an answer and the bank is proceeding with the borrower being in default, it may be possible for the borrower to file a motion for late answer. If you show a reasonable excuse for lateness, the court may grant it (ex: you were not properly served with summons and complaint, hence you did not know about answering the complaint). If it is too late for that, it is best to contact the bank’s attorneys‘ office to inquire if short sale option is still available. Since everyone benefits more from short sale than foreclosure, they will oftentimes work with you to do the short sale and not schedule the foreclosure sale.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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HAMP 2.0 for Homeowners, Who Defaulted on Their Loan Modifications

Question: I previously had a loan modification under HAMP. After my spouse lost her job, we could not afford even the modified payment. We are back on our feet now but the bank has refused to work with us again and constantly tells us we are in active foreclosure. Is there any way we can try to save our home? We don’t have the money to reinstate the loan.

Response: In June of 2012, HAMP 2.0 came out, a new federal program designated to help people like yourself who previously had a HAMP loan modification but then defaulted or people who defaulted during the 3-months trial period. If you have not submitted the documents after June 1, you should try to resubmit your paperwork now. The bank actually uses 25% of your gross monthly income (as opposed to 31% under HAMP) to determine if you are eligible for a loan modification.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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Undecided between Foreclosure and Short Sale

Question: I am facing foreclosure on my home. My spouse passed away a few years ago, my home has not sold and I have not been able to pay my mortgage for a number of years now. My mortgage company refused to allow me to do deed-in-lieu of foreclosure, and my realtor knows that I am trying to do a short sale. I know I can’t save my home, and I am wondering what I can do to make the foreclosure process any easier on myself. Do I need to hire a lawyer to get me through the foreclosure process?

Response: It depends on what you are trying to accomplish. If you want the bank to take away your home as soon as possible, then don’t fight foreclosure and the bank, in due time, will be allowed to foreclose on your home by the court. Alternatively, if you want to stay in your home as long as possible, then you should get an attorney who will attempt to fight foreclosure and thus prolong the process and maybe give you the necessary time to do a short sale.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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Foreclosure, Short Sale or Deed-in-Lieu on a Vacant Property

Question: My home was put up for sale multiple times in the last few years with no success. I have refinanced my mortgage in the past and I am current on my payments, however I have not lived in that home for many years because of work. I am paying a mortgage on a house I don’t live in. I need to know the best course of action to get out of this situation, so that I can buy a house closer to work. I am at the point of walking away from it, however I have a great credit history and I don’t want to take that big of a hit on my credit score. What is the best option for me: foreclosure, short sale or deed-in-lieu of foreclosure?

Response: Foreclosure is always the last alternative. You can either try to do a short sale or a deed-in-lieu of foreclosure if the property is vacant. Otherwise, under HAMP 2.0, you can try to get a loan modification on the mortgage, to make payments more affordable, rent it out and essentially use the rent money to pay for the mortgage. However, all these methods will negatively affect your credit score but not nearly as badly as foreclosure. Also, while you have good credit, it is better to purchase a new home now while you still can but you need to be able to show affordability for two mortgages in order to get another mortgage. You can show the listing agreement for this property in question so the bank at least knows that it is a matter of time until you sell this home.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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HAMP 2.0 Allows Loan Modifications on Up to Three Properties

Question: I own two properties, one that I use as my primary residence and another that I use as a rental property. I cannot afford to pay the mortgage on either, but would like to avoid foreclosure, keep both homes and modify each loan. Is that possible?

Response: Prior to June 1, 2012, only mortgages on primary residences could be modified. However, with HAMP 2.0 that became effective on June 1, 2012, you have an opportunity to modify loans and avoid foreclosure on up to three properties. With that in mind, you must be able to show affordability as the bank will count all your mortgages as expenses and add them to your debt. If you have two loans with the same bank, then you would have to submit two packages with different loan numbers in order for each property to be separately reviewed for a loan modification.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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Duration of Lis Pendens Filing

Question: How long is a lis pendens filing valid? Does the lender only have a certain amount of time to actually follow through with foreclosure in New York? If a lender initiates lis pendens, how long do they have to follow through – if the borrower is trying to work something out (i.e. get a loan modification) for example, and let’s just say it’s over a year since the original papers were filed with the court, can the lender still foreclose or is there an “expiration” to these documents?

Response: Lis pendens is valid for three years and after three years if foreclosure did not take place, the bank, through its attorneys, files for a renewal. In New York, there are mandatory settlement conferences, where you can try to resolve your case (i.e. by attempting loan modification, short sale, reinstatement, payoff, etc). Unless a foreclosure sale date has been scheduled, there is still a good chance you can try to work your case out. In New York, after over a year of foreclosure filing, the case is still in its preliminary stages.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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Funds Owed to the Bank on a Foreclosed “Under Water” Property

Question: Do I owe money to the bank after my home is foreclosed on when I have no equity in the property? I haven’t tried anything yet, but I am ready to give up the property. Following a divorce and without spousal support I can no longer afford this home and there is no equity in it.

Response: If foreclosure takes place, the bank might sue you for a deficiency judgment, which is determined based on the sale price minus your debt owed to the bank. Whatever the difference is the amount you will owe to the bank, which the bank must find a way to recover. Short sale or a deed-in-lieu of foreclosure are better options than foreclosure.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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When Does the Bank Stop Accepting Short Sale Offers?

Question: In State of New York: if a home is sent to foreclosure attorney by the lender, can the lender accept an offer of a short sale from a creditable buyer, if the short sale is offered within a day or two of the monthly deadline for the mortgage payment? For example: December 31 is the deadline for mortgage payment. If not made, lender says property automatically goes to the foreclosure attorney and they cannot accept short sale offer, and the foreclosure attorney proceeds with foreclosure. Also, when does homeowner receive foreclosure notice from lender’s foreclosure attorney?

Response: The actual legal commencement of foreclosure can take anywhere from a few months to a few years, depending on the lender and the laws of the state. Short sale is one of the ways to avoid foreclosure. Once a foreclosure sale is scheduled, it is hard to go another route and do a short sale but until the sale is scheduled, you can list your property for sale and send the package to the bank for approval. The bank will always choose a short sale over foreclosure.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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Short Sale Always Better Than Foreclosure

Question: I have a modified loan and a second loan with the same bank in New York City, which are now current. I recently lost my job and am unable to continue making mortgage payments. I also have no possibility of sale as the combined mortgage principles and the home value may be the same at the present time. If I decided to go for a short sale or go into foreclosure, does the lender here in New York City have the right to go after me with a deficiency judgment, and if they do how long the foreclosure procedure will take before eviction?

Response: It is always better to do a short sale than to go into foreclosure. As a result of foreclosure, the bank can try to obtain a deficiency judgment against you but of course getting it satisfied is a matter of having assets. Short sale, on the other hand, if properly negotiated, does not result in a deficiency judgment but rather debt forgiveness, as it gets reported to the IRS. This year, you don’t have to pay taxes back on the amount of debt that gets forgiven and you basically walk away without liability. As a matter of fact, most banks will offer you money to do a short sale. Please note that foreclosure in New York City can take several years if you are trying to wait it out and see if you can get back on your feet and then reinstate your mortgage.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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How Soon is Foreclosure Process Started in New York?

Question: I walked away from my home several years ago, which was due to illness and financial distress. I mailed the keys to my home to my mortgage company and have not made any payments since. My home has not gone into foreclosure, and now there is a collection company calling me. How soon is the New York foreclosure process normally started?

Response: Foreclosure in New York can be quite a lengthy process. Many cases depend on the quality of the paper work that the bank has to process with foreclosure. If you are not resisting foreclosure and are in default, then generally, it should be quicker but a multi-year time span is not surprising. However, the fact that a collection agency is harassing you for payments most likely indicates that you are not in foreclosure. What probably happened is that bank could not move standing of your mortgage to foreclosure or the loan was so minimal that it was not economically beneficial for the bank to pursue foreclosure and charged your debt off, selling it to a collection agency for pennies. You should do some investigative work as to the status of your case because it is possible that you could have been living mortgage free all these years.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

modification, making home affordable, hamp, mortgage modification, harp refinance, making homes affordable, modifications, home affordable modification program, home affordable refinance program, hamp program, home loan modification, loan modification guidelines, foreclosures, foreclosure listings, foreclosure homes, mers, foreclosure settlement, foreclosure homes for sale, free foreclosure listings, foreclosure home, deed in lieu of foreclosure, foreclosure process, how foreclosure works, home foreclosure, foreclosure radar, bank foreclosure, home foreclosures, foreclosure listing, hud foreclosure, foreclosure laws, short sale vs foreclosure, stop foreclosure, totally free foreclosure home listings, foreclosure help, free government home foreclosure listing, free listing foreclosure home sale, free foreclosure listings with pictures, fannie mae foreclosure, independent foreclosure review, lawyers, power of attorney, personal injury attorney, attorneys, power of attorney form, durable power of attorney, power of attorney forms, criminal attorney, attorney search, medical power of attorney, free power of attorney, bankruptcy attorney, power of attorney template, power of attorney form download, durable power of attorney form, free power of attorney forms, general power of attorney, free printable power attorney form, lasting power of attorney, tax attorney, free power attorney forms, divorce attorney, ace attorney, disability attorney, attorney jobs, enduring power of attorney, attorney at law, patent attorney, free power of attorney forms to print, real estate attorney, injury lawyer, personal injury lawyer, defense lawyer, criminal defense lawyer, the lawyer, accident lawyer, a lawyer, criminal lawyer, motorcycle accident lawyer, rocket lawyer, bankruptcy lawyer, divorce lawyer, ask a lawyer, find a lawyer, lawyer referral, car accident lawyer, family lawyer, lawyer search, lawyer find, lawyer ratings, lawyer referral service, immigration lawyer, dui lawyer

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Procedure to Initiate Foreclosure

Question: I have first mortgage which is current, not past due, all payments made on time. I have a HELOC, which is delinquent by several months and the bank sent a foreclosure letter. Even though they are secondary can they foreclose?

Response: Procedurally, to begin foreclosure, the bank must first send a 90-Day Letter, giving you 90 days to get current on the loan. If foreclosure process is initiated sooner, it can be dismissed on the grounds of failing to send the 90-Day Letter. Having said that, most banks are so backed up that just because you have received that letter does not mean that foreclosure will begin exactly 90 days later. In some cases, it is months later, and in other cases, it may take a couple of years. It is trickier with the second mortgages. The bank must evaluate if it is economically feasible for them to pursue foreclosure, i.e., if the first mortgage takes up all the equity of the home and there is nothing left for the second, then, many times, the second position will charge off the loan. It is more likely to witness foreclosure of the second mortgage if there is equity left in the home once the first mortgage is subtracted (ex: fair market value=$300,000; 1st mortgage=$200,000; 2nd mortgage=$100,000–there is enough equity for both lenders to recover the amount of the debt). So, it is definitely possible for the second mortgagee to foreclose, hence you sign the mortgage at closing as security instrument for the lender, allowing the bank to take away your property if you default on payment.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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Negotiating a Settlement with a Bank to Extinguish Mortgage Debt

Question: We were facing foreclosure and we filed for Chapter 7 Bankruptcy, which was discharged earlier this year. At that time, we owed about half of our total mortgage debt on the first mortgage and half on the second and both mortgages were with the same bank. The value of the home at that time was listed in the bankruptcy at about as much as our first mortgage was worth and most of the second mortgage was unsecured. Presently we owe slightly more on our first mortgage than at the time of bankruptcy (we are current with our payments but with interest it has gone up since the bankruptcy) and have not been able to pay the second mortgage for three years now. I got a personal injury lawsuit settlement recently and we would like to approach the bank that holds the second mortgage with a settlement lump sum amount. I believe we had to reaffirm the first but if we approach the second and they do not go for a lump sum, will they be able to come after us for the payments like they did before the bankruptcy? Will we have to reaffirm the second and what exactly does that mean? How do we best go about approaching the bank?

Response: You should contact the attorney who filed bankruptcy for you and find out if bankruptcy already wiped out the second mortgage, or at least the unsecured portion of it. In any case, lenders in second position entertain settlement offers with much more enthusiasm than one would think since the main concern is to receive something than be wiped out completely. In your case, if you are still obligated under the second, you should definitely negotiate into a lump sum payment and there is a high probability that the bank will accept a lump sum (usually in proportion to the fair market value of the home minus first mortgage is what’s left for second to recover). Otherwise, find out if there is a possibility of a loan modification–that could be another way out or you will be back at square one where you were before you filed for bankruptcy.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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Steps for Qualifying for Loan Modification

Question: I have been given a run around by my bank regarding a loan modification. They put me in a foreclosure and then rescinded. They assigned multiple representatives to my account. Recently they sent me a letter stating that I am not eligible for a loan modification, because I did not provide them the documentation they requested, although they had this documentation from me on file for a while now, but according to them it now needs to be updated. Our biggest fear is that they can put us in foreclosure and take our home away whenever they want to. So far, I tried working with the bank directly with no third party assistance. We sent them all requested documents months ago, only to be asked to start all over. We thought we were going to be approved for a loan modification, so that we can move on with our lives. But now we are at square one again. We have sufficient income, so we can afford the mortgage.

Response: There are a lot of criteria that need to be satisfied to be approved for a loan modification. Banks are so overwhelmed by the number of homeowners who are in default and are seeking assistance that is it almost impossible to find a bank that completes its deadlines to review the documents timely. You have to be patient and annoying and call the bank at least once a week to find out the status of the review. If anything is missing, it needs to be supplemented immediately. Otherwise, documents have such a short life span that within 60 days, documents will go stale and will need to be updated again and again. It is always best to send everything at once. If something is missing or income cannot be verified immediately and you need two new bank statements, you will have to resubmit all documents again (including updating all the forms which sometimes change its format). That’s the first part of the puzzle. Second is actually qualifying for a loan modification. To get a loan modification, you must qualify, which means you have to be within specific income brackets to qualify in proportion to your total debt (including arrears). You can’t make too much and you can’t make too little since both of those reasons could disqualify you, among many others. Receiving a denial for missing documents is not the end of the road. Rather, it is the beginning for a new submission with all new documents. Before you submit, it is better to speak to a professional who has knowledge of this area so your financial situation could be properly assessed whether you qualify.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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Bank Attorney‘s Fees in Foreclosure Cases

Question: The bank I have my mortgage with is saying that I have been behind on my mortgage for several months. I acknowledge that I am behind on my mortgage but by much fewer months than my bank suggests. When I tried to make a payment, I was told that I had 48 hours to pay the outstanding balance. I got the money together, but then the bank representative told me that they would not accept my payment because my case had gone to foreclosure and I need to pay the foreclosure attorney‘s fees now as well. On the other hand, my account manager told me to send the payment in, so I did and now he says that my case will be taken out of foreclosure and the bank will inform them if I owe them anything with regards to the foreclosure attorney‘s fees. Who do I believe and what will happen next?

Response: Generally, if your loan was referred to a foreclosure attorney, the bank cannot accept the money anymore and it has to go through their attorney‘s office to reinstate it so all the fees could be properly evaluated. In your case, you are not behind by much and it seems that the bank referred your case into foreclosure at its first chance. Generally, what it means is that the attorneys for the bank have to draft a summons and complaint and serve you with the papers. So, if their attorneys just received a referral but they haven’t done anything that would have incurred fees yet, then it is very likely that the amount of arrears is still the same as you were told. You can also call the attorneys for the bank to double check but based on the short amount of time in default, the scenario you described could make sense.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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Is Mortgage Company Obligated to Stop Foreclosure Proceedings by Accepting my Past Due Payments?

Question: My mortgage company offered to accept the past due payments on my account in the foreclosure process in exchange for stopping the foreclosure proceedings. Is the mortgage company obligated to stop the foreclosure by accepting the payment? I am not the mortgage holder but I am in the house with a filed quit claim deed in my name. Since I am not the mortgage holder I can’t get anything in writing legally from the mortgage company stating their terms to me.  I have had a consultation with a real estate attorney, who answered some questions for me.

Response: That’s right. As long as the bank receives its payment, they will keep on taking it. They will reinstate the loan, the payments will go back to their original terms and the foreclosure proceedings will be stopped. You can’t get anything in writing because you are not the borrower. You would have to assume the loan to make it in your name and to have any new terms stated in writing. But if you are not trying to get a loan modification on your mortgage and just trying to resume to making payments, then you can just send the check to reinstate it and then continue making monthly mortgage payments. As long as you do, the bank will not bother you. As soon as you stop, again, the borrower, who is the person financially obligated under the note will end up in foreclosure, thus, risking losing the home that you own.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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Am I Responsible For 2nd Mortgage on My House (That Was Charged Off), If the Bank Forecloses On the 1st One?

Question: Our home is in foreclosure and we have been working with the lender to get a loan modification on it for over a year. There was a second loan on the house, with the same lender, that we thought was “settled” but when we called the lender about a year ago to confirm that it was “settled”, we were informed that it had been charged off about three years ago. If the first loan is foreclosed upon, will the bank come after us? If they don’t for the first, will they for the second loan? We contacted an organization called NACA, and they have been assisting us with trying to achieve an affordable monthly payment on our house, and to avoid foreclosure. I’m getting divorced and the Judge told me he would award me the house, but that I would have to sign a waiver claiming sole liability on the home. I don’t know yet if I will be able to get the loan modification and I don’t want to claim all liability if the house goes into foreclosure with the second loan being charged off and me still being responsible.

Response: Once the second loan is charged off, the lender generally sells it to a collection agency to try to recover some money from you (generally a percentage of what is owed). The fact that your loan was charged off to begin with indicates that the property had no equity and that it was not economically feasible for the 2nd lender to pursue foreclosure. Therefore, if foreclosure actually takes place, all or most of the money recovered will go to the 1st lender to satisfy the debt. By having charged the second loan off, the loan is no longer secured. It will be treated as any other unsecured debt, like a credit card debt. If you have no assets that the bank could take if the home is foreclosed upon in order to satisfy a deficiency judgment (if the bank chooses to pursue it), then it is very unlikely that you could be at risk. Worse comes to worst, you might be able to file for bankruptcy to discharge your unsecured debts. You should note, however, that you can’t get the loan modified if you divorce unless you assume financial obligation of the debt. In order for the loan to be modified, you need to be able to show financial affordability, or 31% of your gross monthly income should pay off your mortgage in 40 years at 2%. NACA is a 3rd party that works with the bank to help you get the loan modified. Generally, the bank cannot deal with you directly once NACA is involved unless that agreement is severed. Just stay on top of what’s going on to make sure your loan is reviewed for a loan modification. If the first is modified, then it is most likely you won’t have to worry about the second until you sell the home.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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What Can a Bank Do to Satisfy a Deficiency Judgment from a Foreclosure?

Question: We are being sued by our bank. Our property went into foreclosure about five years ago. Can our bank garnish our wages or reach into our personal bank accounts? What can we do to minimize our exposure? We agreed to a payment schedule but never heard anything back. Recently we received new communication from the bank, where they are asking for more documentation, such as personal bank accounts information, property ownership, etc. The first lien holder sold our mortgage to our bank, which retained an attorney to collect the difference between the amount that the property sold for at foreclosure sale and what we owed on our principal balance.

Response: Yes, the bank can go after the deficiency judgment, which in this case appears to be the difference between the amount the property sold for at foreclosure sale and your principal balance. The only way the bank can satisfy this debt is if you have assets, i.e., another property, bank accounts, W-2 job, tax refund from the IRS, etc. If you have no assets, then you are considered judgment proof, meaning that the creditor will not be able to recover anything from you. If you are employed, then up to 10% of your wages can be garnished. Perhaps, you can negotiate with the collection company or the attorney that is pursuing collection of this debt to settle for less. Oftentimes, they will take a lump sum that could be less than half the cost to make it go away.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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Qualifying for Loan Modification After Filing Chapter 7 Bankruptcy

Question: I recently had to file a Chapter 7 Bankruptcy to keep my property from foreclosure. Subsequent to the filing of Chapter 7 Bankruptcy, can I still manage to get a loan modification or sell my property through a regular listing?

Response: Yes, after you assume the loan through the Chapter 7 Bankruptcy and the stay is lifted or Chapter 7 Bankruptcy is discharged, you can still try to work out loan modification with the bank. Foreclosure or possibility of loan modification is not affected by Bankruptcy unless you surrender the property or the property is taken away. Now, you have the option to try to work out different loss mitigation options (i.e. loan modification) through the Bankruptcy court. Talk to an experienced attorney to determine the best option for you.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

modification, making home affordable, hamp, mortgage modification, harp refinance, making homes affordable, modifications, home affordable modification program, home affordable refinance program, hamp program, home loan modification, loan modification guidelines, foreclosures, foreclosure listings, foreclosure homes, mers, foreclosure settlement, foreclosure homes for sale, free foreclosure listings, foreclosure home, deed in lieu of foreclosure, foreclosure process, how foreclosure works, home foreclosure, foreclosure radar, bank foreclosure, home foreclosures, foreclosure listing, hud foreclosure, foreclosure laws, short sale vs foreclosure, stop foreclosure, totally free foreclosure home listings, foreclosure help, free government home foreclosure listing, free listing foreclosure home sale, free foreclosure listings with pictures, fannie mae foreclosure, independent foreclosure review, lawyers, power of attorney, personal injury attorney, attorneys, power of attorney form, durable power of attorney, power of attorney forms, criminal attorney, attorney search, medical power of attorney, free power of attorney, bankruptcy attorney, power of attorney template, power of attorney form download, durable power of attorney form, free power of attorney forms, general power of attorney, free printable power attorney form, lasting power of attorney, tax attorney, free power attorney forms, divorce attorney, ace attorney, disability attorney, attorney jobs, enduring power of attorney, attorney at law, patent attorney, free power of attorney forms to print, real estate attorney, injury lawyer, personal injury lawyer, defense lawyer, criminal defense lawyer, the lawyer, accident lawyer, a lawyer, criminal lawyer, motorcycle accident lawyer, rocket lawyer, bankruptcy lawyer, divorce lawyer, ask a lawyer, find a lawyer, lawyer referral, car accident lawyer, family lawyer, lawyer search, lawyer find, lawyer ratings, lawyer referral service, immigration lawyer, dui lawyer

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Retrieving your Equity from Foreclosure Sale and Filing a Motion for Surplus Money Proceeding

Question: Our home was recently foreclosed on by the mortgage company. There will be a sum of several hundreds of thousands of dollars in equity owed to us after the mortgage company takes the money that is owed to them. We have been contacted by individuals and lawyers stating that we should retain their services in securing our equity from the foreclosure sale. They want a substantial percentage of the proceeds that will be due to us to handle this procedure. The New York City rules seem to indicate that the money owed to us are simply dispersed as a matter of law in a timely manner. I can’t understand why we would need such an expensive representation for this as our case is not so complicated. Do I need to file anything along the way and do I need an attorney?

Response: You will likely need an attorney who can bring a motion to the court for the Surplus Money Proceeding. It takes time for the court to hear you on your motion, then decide it, and thus, for the money to be disbursed. You will need to go through the New York City Department of Finance to obtain the funds eventually. Paying a percentage of the recovered amount seems a bit excessive. Look for a professional who would agree to do it based on a fixed retainer fee.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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Homeowners Association’s (HOA‘s) precedence in claims on your property over the bank

Question: We recently got a loan modification on the mortgage on our primary residence with very attractive terms. We have two HOA‘s and we communicated to them that we would catch up on our dues when the loan modification became permanent. One of the HOA‘s put us in collection. What will happen if we stop paying anything to the HOA? Will they foreclose and get someone to pay the bank the amount due on the note. What risks do we take if we don’t pay one of the HOA‘s? Can the HOA foreclose and ignore the bank and the money owed to the bank? Who pays the money to the bank?

Response: You are better off not messing with the HOA. HOA can put your home/condo for sale, recover its fees, pay the rest to the bank. Oftentimes, the bank will itself pay the amount due to avoid any type of lien sale and then charge you for it. HOA fees are not even extinguished when you file for bankruptcy. So, they will not be extinguished in foreclosure. If you want to save your property, you should make an arrangement with HOA to catch up on arrears.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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Can the bank garnish my wages and go after my assets through a deficiency judgment?

Question: A few years ago, I took out a second mortgage from my primary residence and made a few unsuccessful investments with that money. Subsequently, I was forced into Chapter 13 Bankruptcy and I surrendered all of assets I had acquired as investments. Chapter 13 Bankruptcy did not take care of my second mortgage. Now I need to get a loan modification on both: my first and second mortgages to stay in my primary residence. So far the banks have not been cooperating. I will stop paying both mortgages as I can save that money to find another house to rent. The first mortgage will be covered in a foreclosure sale, but the second will not. Can the bank come after me for the difference and garnish my wages?

Response: Essentially, foreclosure should be your last resort. Mainly, it is because of the deficiency judgment. Yes, banks can obtain a deficiency judgment and go after your assets or garnish your wages to satisfy the debt although sometimes the bank can make an exception. If you know you are willing to surrender your property, then you are better off doing a short sale, especially because on your primary residence this year, any debt, that is forgiven is not subject to capital gains taxes. Consider doing a short sale or deed-in-lieu to avoid negative financial consequences.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2015 Law Office of Svetlana Kaplun, P.C.

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Does the Bank Have Claims to my Future Assets Because of a Short Sale of my Old Property?

Question: We just completed a short sale on a home financed by our bank. We are getting another home as a gift in a few months. Can the bank come after us because we now own a home debt-free? Our old home was purchased using a standard loan that we refinanced. We sold the home for about $60k less than what we owed to the bank. My wife is unemployed and cannot work due to a medical disability.

Response: No, that shouldn’t be an issue since at the moment you did a short sale on your home, you did not own another asset. Once you do a short sale, the amount that is forgiven gets reported to the IRS as a taxable income. But if you did a short sale this year on your primary residence, any debt that gets forgiven is not subject to capital gains and you won’t have to pay any taxes to the IRS in relation to the short sale.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2014 Law Office of Svetlana Kaplun, P.C.

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Is Strategic Default the Best Path to Loan Modification?

Question: We are looking for a strategic default because we got no help in adjusting our mortgage down to reflect the drop in value of our home. We have called the bank many times over several years. We can afford the payment, but our payment is scheduled to go up in the future and the house doesn’t justify the cost. We have inquired about merely getting our rate down to going rates and every time no matter what new so-called loan modification program exists have been told you have to initiate default by missing a payment for the bank to even start discussing it with you. Should we get legal assistance in the strategic default process?

Response: Numerous factors come in play here. It is true that most banks will not even consider you for a loan modification unless you missed three (3) payments. But if you miss three (3) payments, then you have to beware that you are at risk of foreclosure. If your current mortgage payments are affordable, then you may not even qualify for a loan modification. Loan modification is not automatically granted. You must submit documents; the bank reviews them; and if you qualify, you may get a loan modification. Certainly, you could be risking a lot more. If your credit history is good, then you should try to refinance and you can still get a good market rate today. If you decide to try for a loan modification, consult with a professional in advance to ensure that you qualify.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2014 Law Office of Svetlana Kaplun, P.C.

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Making Mortgage Payments During Short Sale Process

Question: We are considering a short sale on the home we owned for many years. We contacted a short sale agent but we did not contact our bank. I lost my job last year. The agent advised us that we are $10,000 under water on the property not including an additional home equity line. We are current on our mortgage payments but we are wondering if we should continue to make the payments during the short sale process?

Response: You should have no problems doing a short sale, especially if you are only $10,000 under water. You need to contact the bank to initiate the short sale process. They will absolutely have to verify your financials to ensure that there is no way to repay the entire debt. In your case, where the amount of debt that needs to be forgiven is $10,000 but if you have other assets, it may be a problem. Since every bank has its own process in place, you need to contact the bank to determine if they will agree to a short sale in your case. It doesn’t seem that there should be a problem with such a small amount being forgiven. As far as stopping payments goes, you need to know that when you stop making payments, you are always at risk of facing foreclosure. At the same time, if you stop making mortgage payments, by the time the short sale takes place, you will owe more money to the bank, and thus, a greater amount might or might not be forgiven. The amount that banks will generally accept at the short sale is roughly equivalent to the fair market value of your home.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2013 Law Office of Svetlana Kaplun, P.C.

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Bank’s Rights to Deficiency Judgment Following Acceptance of Deed-in-Lieu

Question: We have been approved for a Deed-in-Lieu of Foreclosure. My case is very straight forward (i.e. one mortgage, no liens, etc). The Estoppel Affidavit that we received mentions the cancellation of debt. Does the bank’s acceptance of Deed-In-Lieu of Foreclosure waive their right to a deficiency judgment?

Response: No, you avoid a deficiency judgment by opting for the Deed-in-Lieu of Foreclosure. However, when any portion of the debt is cancelled, the amount that is cancelled is then treated as part of your annual income, on which you would have to pay taxes at the end of the year. However, if the debt is cancelled on your primary residence, then you don’t have to pay taxes on that amount. Essentially, if the property is not an investment property, then you should have no monetary consequences.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2013 Law Office of Svetlana Kaplun, P.C.

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Deficiency Judgments in Foreclosure Cases

Question: I’m in foreclosure on my property. The auction date is set for next week. If there is a deficiency in the sale price, will I be liable for the deficiency? Should I file bankruptcy prior to the foreclosure? I’ve spoken to some mortgage brokers, but I’m getting mixed feedback.

Response: Yes, the bank can go after you for the deficiency. Generally, though, in order to be able to enforce the deficiency judgment, you must have some other valuable assets, like another property or sufficient sum of money in the bank account. It is generally more advisable to do a short sale or a deed-in-lieu of foreclosure. Then, if the property is your primary residence, you don’t have to pay taxes on the debt that was cancelled. Bankruptcy is always an option as an emergency backup to stop the foreclosure sale. Once you file for Bankruptcy, there is a 30-day stay of foreclosure proceedings. Within that time, if you can’t work out the way to keep your home, then the bank can move for a motion for relief from stay, thus, allowing it to proceed with the foreclosure, and hence, the foreclosure sale, once again.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2013 Law Office of Svetlana Kaplun, P.C.

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Starting the short sale process

Question: I would like to put my home up for a short sale. How do I start? If anything occurs in my home (i.e. it incurs internal damages), will the bank come after me? Will the bank come after me for the difference in their short sale price and the amount I owe?

Response: To start the short sale process, you need to contact the bank first. You will have to fill out a package of documents and the bank must determine that you qualify for short sale. The bank is not a purchaser of your home, so the bank cannot come after you for broken things. Since your are selling your home to a 3rd party buyer, once the short sale takes place, you are not responsible for any damages to the home if the purchase is “as is” unless you have intentionally concealed the truth about some material defects of your home. When the bank agrees to do a short sale, they agree to cancel part of the debt that is non-recoverable under current market conditions and they write off that amount as their loss for the year. IRS will send you a form with the amount that was cancelled to report on your taxes. However, if the property is your primary residence, then you won’t face any tax consequences.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2013 Law Office of Svetlana Kaplun, P.C.

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Loan modification for homeowners, who have just recently regained employment

Question: My mortgage was transferred from first bank to second bank in December 2011, I lost my job at the end of that month. My mortgage is current through January. I contacted HOPE in January to assist me while I looked for employment. I sent countless documents to HOPE, who in return sent them to the second bank. The second bank, however, has not been effective in trying to help me stay in my home. They have said I am ineligible because I am receiving unemployment benefits. I have asked about the Unemployment Program listed under the Making Home Affordable Act (HAMP) and I was told that I am ineligible even before the list of documents was sent from HOPE. I just recently landed a full-time position in public sector, which I am about to commence very soon. I told the second bank this, in hopes to stave off the foreclosure process, but I was told that the foreclosure process will begin shortly. I want to stay in my home. My new job will produce less income than my previous job, but with a lower interest rate, currently I am above 6%, I feel I just need a little time. I was never late nor missed a payment while I was employed and I feel that the second bank is just going to continue to regard me as ineligible for loan modification or any other assistance. Please, tell me what options I have to stay in my home.

Response: It is unclear if the second bank is about to set a foreclosure sale date or commence a foreclosure? Your home cannot be foreclosed upon until the bank exercises its legal right by suing you in court as a result of the default under the terms of the Note and Mortgage. If you have not gone through the lengthy court foreclosure process, then the second bank cannot be setting a meaningful foreclosure sale date any time soon. If, however, the bank initiated its foreclosure action a long time ago, then it is likely that a foreclosure sale could take place shortly. If that is the case, then you may want to consider filing for bankruptcy to stop foreclosure and you can even try to obtain a loan modification through the Bankruptcy Court. On a different note, if you just started your job this month, then you would not have enough financial documents to verify your income. You would have to wait 2 months, get 30 days of pay stubs and 2 months of bank statements, along with all the forms, and most recent tax returns and try to submit the documents again. It is very hard to get a permanent loan modification when you are unemployed because then you obviously show unaffordability of the monthly mortgage payment to the bank and the last thing the bank wants is another default. Unemployment program under Making Home Affordable Program (HAMP) is a temporary solution. To get the monthly amount reduced permanently, you need sufficient income. Now that you are employed again, there is a great chance of success to your story.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics. 

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.

Copyright © 2013 Law Office of Svetlana Kaplun, P.C.

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HARP qualification for homeowners, who are on the deed but are not the borrowers on the note

Question: My spouse has recently passed away. Our mortgage was in his name only. The bank says I am not eligible for HARP 2.0 because the loan was in his name only. My name is on the deed of trust. They have suggested short sale or foreclosure. I really want to keep my home and have my payments reduced. Is there a way to do this? I already tried calling the bank several times to try to find a solution to get my home in my name and apply for HARP 2.0 to refinance, but so far no luck.

Response: Unfortunately, even though you are on the deed, you are not the Borrower under the Note. Therefore, the bank cannot refinance or modify a loan, which you are not financially obligated to. The way to do this would be to first assume the loan but you would have to qualify for assumption, i.e., you must be current on your monthly mortgage payments and you should have sufficient income to qualify. Then, at some later point in time, if you are actually having financial difficulties, you can discuss the options of refinancing or loan modification with your bank.

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information.
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