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Behind on your Mortgage and Threatened with Foreclosure What do you do?

Mortgage-and-Threatened-with-Foreclosure

Financial institutions generally do not move forward with foreclosure lawsuits until the homeowner is 3 months behind on their mortgage payments. So if you are only 1 or 2 months behind as long as you catch up and don’t fall the magic 3 months behind, generally speaking your financial institution will not put you into foreclosure. However, when you fall 3 months behind your financial institution can chose to reject all future mortgage payments and call in the entire balance of your mortgage. This is technically known as accelerating the mortgage. This means you no longer owe the monthly payments. You now owe the entire amount of your mortgage.

Options offered by Banks

Banks will initially send you a late notice. Thereafter they will send you letters involving potential options with regard to your mortgage. These options will include mortgage modifications, deeds in lieu of foreclosure, short sales and forbearance agreements. One of the mortgage modification options is the homeowner redoing the mortgage in a manner that the months you are behind are put at the end of your mortgage. Other options involve forgiving portions of your mortgage if you owe more than your home is worth. Another type of option is the bank redoing your mortgage and making it into a balloon mortgage. The balloon mortgage would reduce the amount of your monthly payments but have a large balloon payment down road.

Reasonable Income

One of the key factors banks look at when underwriting a mortgage modification is for you to be able to show the financial institution you are working and you have a reasonable income which will support a mortgage modification. One of the ways of maximizing your opportunity to obtain a mortgage modification is to retain an experienced foreclosure law firm that deals with submissions to financial institutions for mortgage modifications.

90 Day Notice of Foreclosure

Prior to your financial institution serving you with legal papers in a foreclosure lawsuit they will give you a 90 day notice. The 90 day notice of foreclosure will state the amount of money you owe on your mortgage as arrears and will give you an opportunity to pay all of the arrears to avoid foreclosure. Sometime after the 90 day period, if you do not pay all the arrears on your mortgage you will be served with a summons and complaint in a foreclosure lawsuit.

Chapter 13 Bankruptcy

If you cannot immediately bring your mortgage up to date another alternative is to file a Chapter 13 bankruptcy. This will stop the bank’s attorneys from suing you in a foreclosure lawsuit and give you 5 years to pay back the arrears owed related to the months you fell behind on your mortgage. While making those arrears payments to the bankruptcy trustee you will also have to make your monthly mortgage payments. Although bankruptcy may stop the house from going into foreclosure, it will usually cost you more on the monthly basis than you were previously paying for your mortgage payments.

Defending and Negotiating

Elliot Schlissel Experienced foreclosure attorneys usually both defend you from foreclosure lawsuits and simultaneously negotiate with the bank’s lawyers to help obtain homeowners mortgage modifications. The technique of fighting and negotiating at the same time it the best way to maximize the chances of the homeowners keeping their homes.

Elliot S. Schlissel is a partner in Schlissel DeCorpo LLP a law firm that defends foreclosure cases. He can be reached at 800-344-6431 or at Elliot@sdnylaw.com.

Order of Protection Extended!

City view from a rooftop

In the case of Matter of Molloy v. Molloy 204-0766, the Appellate Division of the Second Department, an Appeals Court, reversed a lower Family Court Order and held changes to the New York Family Act in 2010 allows litigants to come to court and seek orders of protection extensions upon making a presentation of “good cause.”

History of The Case

In the Molloy case Mr. And Mrs. Molloy married in 2002. They had one child from the marriage. In 2010 Mrs. Molloy brought a proceeding in the Family Court against her husband. She claimed he committed third degree menacing, second degree reckless endangerment and third degree assault upon her. As a result of these charges the Family Court Judge issued a two (2) year order of protection for both her and the parties’ child. The order of protection was a stay away order of protection except the father could come to pick up the daughter upon court ordered visitation dates.

Extension of the Order of Protection

Before the order of protection expired, Mrs. Molloy brought an application for an extension of the order of protection. She claimed there was “good cause” as it is defined under the Family Court Act § 842 for the court to extend her order of protection up until December 1, 2018. In her moving papers she claimed her husband had violated the order of protection. She alleged he would show up at her apartment and bang on her door. On one occasion he drove his vehicle too close to her while she was going to the police station with regard to a visitation date with the parties’ child. In addition, a girlfriend of Mr. Molloy warned Mrs. Molloy he had threatened to kill her when the order of protection had expired. As a result of these allegations Mrs. Molloy filed a complaint with the police for Mr. Molloy’s violation of the order of protection. The police arrested him and he eventually plead guilty to disorderly conduct.

The Lower Court Ruling

Mrs. Molloy had brought an application before Family Court Judge Dennis Lebwohl. She requested that her prior order of protection be extended. Judge Lebwohl ruled against her. In his decision he wrote there had previously been a ruling of the criminal court with regard to an order of protection and therefore the order of protection envisioned under Family Court Act Section 842 had been achieved. Therefore, Judge Lebwohl ruled Mrs. Molloy had not met the statutory requirement of showing good cause to have her order of protection extended.

The Appeal

Mrs. Molloy appealed. The Appellate Division, Second Department (an appeals court) reversed Judge Lebwohl’s decision. They made this ruling based on the fact Mrs. Molloy had met the good cause standard under Family Court Act Section 842. The Appellate Division held the showing of good cause should take into consideration the relationship between the parties involved and the circumstances related to the entry of the original order of protection. In addition, the court ruled issues such as the relationship between the parties at the time the application for an extension is requested and the frequency of interaction between the parties, in addition to prior incidences of domestic violence are violations of orders of protection that should be taken into consideration as good cause. The court also held if there is reasonable concern for the safety and well being of the party who had originally received the order of protection the court is empowered to extend it.

Attorney Elliot S. Schlissel

The appeals court took into consideration that the Molloys still had a child in common and there was visitation taking place where the child was handed off from one parent to another. The court stated “therefore it is clear from the record that the petitioner’s fear that the respondent may stalk, harass, or attack her is well founded, and that the unavoidable interactions between the parties may subject her to re occurrences of violence.” The court’s ruling was that the requirement under Section 842 of the New York Family Court Act had not been met.

Valley Stream, Lynbrook, Baldwin, Malverne, Freeport, Oceanside, Long Beach, Elmont, Lakeview, West Hempstead, Hempstead, Merrick, Bellmore

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