HOPP Webinar: Is it too Late? WHAT TO DO WITH HOMEOWNERS FACING FORECLOSURE WHO SEEK HELP AFTER IT S TOO LATE. DATE/TIME: TRAINERS: WEDNESDAY, FEBRUARY 14, 2018 12:00 PM-1:00 PM GAYLE E. HARTZ & DEBRA J. WILLSEY, THE LEGAL PROJECT
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Our Service: We have provided free civil legal services in the Capital Region since 1995 Counties Served Include: Albany, Schenectady, Rensselaer and Saratoga for all services Various programs and services for those who cannot access other help in adjacent counties: Warren/Wash, Fulton/Montgomery, Schoharie, Columbia and Greene.
I. EVALUATION OF CASE WHEN CLIENT S FIRST CONTACT IS EITHER UPON RECEIPT OF A JUDGMENT OF FORECLOSURE AND SALE, A NOTICE OF SALE OR A POST-SALE OF THE PROPERTY 1.). Agency s Resources a) Availability of attorneys and case load b) Homeowners financial circumstances i. income ii. employment iii. family iv. reason for default in payment v. any prior modifications
I. EVALUATION OF CASE WHEN CLIENT S FIRST CONTACT IS EITHER UPON RECEIPT OF A JUDGMENT OF FORECLOSURE AND SALE, A NOTICE OF SALE OR A POST-SALE OF THE PROPERTY, Cont d. c) What does Homeowner Want i. Residence? ii. Want to retain? iii. Equity Market Value and Amount owed iv. Non-retention options v. Retention options i.e., MAP d) Procedural History if homeowner wants to retain the home and it is financially feasible i. Default date on mortgage payments ii. Action commenced iii. If homeowner is not in default a. Answer-- b. Loss Mitigation efforts (housing counselors?) c. Attendance at settlement conferences iv. If homeowner is in default (no answer to complaint)
II. Motion for Order of Reference 1) No Answer Filed i. Plaintiff files ex parte motion for appointment of Referee ii. Cross-move to vacate the default and file a late answer, or if an answer to amend the answer (CPLR 5015) a). reasonable excuse -ineffective assistance of counsel -did not receive notice of the action in time to defend -failure to bring default action within one year of default b) meritorious defense: -Any 3408 claims failure to negotiate in good faith -1304 claim no 90 day preforeclosure notice
II. Motion for Order of Reference, Cont d. 2.) Answer Filed: i. Plaintiff files Motion for Summary Judgment to dismiss affirmative defenses and counterclaims, if any, and appoint referee ii. Any triable issues of fact iii. Does homeowner have valid, meritorious defenses and/or counterclaims iv. 3408 claims v. 1304 claims -is claim waived if not asserted in answer or pre-answer motion to dismiss 3.) To oppose the motion successfully must have excusable default and meritorious defense
III. Order of Reference Issued 1.) Objection to Referee Report (CPLR 4403) within 15 days
IV. Motion for Judgment of Foreclosure and Sale/Confirmation of Referee Report What did Order of Reference specifically direct Referee to do RPAPL 1321(1) Did Referee stay within limitations of Order? Are costs requested by Plaintiff correct per statute? CPLR 8302 Is attorney fees request specifically itemized? Reasonable in light of procedural history of case? Are there procedural grounds for objecting to interest and fees request?
IV. Motion for Judgment of Foreclosure and Sale/Confirmation of Referee Report, Cont d. Cross-move: 1. CPLR 5015: to vacate Order of Reference and/or default in answering due to excusable default and meritorious defense; 2. CPLR 2004 and 2005: for leave to serve and file late Answer; or CPLR 3025 amend answer; 3. CPLR 4403: to reject Referee report; (statutory costs, deny request for attorney s fees, direct waiver of interest and fees for the time period set by the Court due to Plaintiff s delay in prosecuting the action, or other improper behavior. See: Greenpoint Mtge. Corp. v. Lamberti, 155 AD3d 1004, (2nd Dept, 2017)
V. Judgment of Foreclosure and Sale A judgment of foreclosure and sale entered against a defendant is final as to all questions at issue between the parties, and concludes all matters of defense which were or might have been litigated in the foreclosure action. Signature Bank v Epstein, 95 AD3d 1199, 1200 [2nd Dept 2012], quoting Long Is. Sav Bank v Mihalios, 269 AD2d 502, 503 [2nd Dept 2000].
V. Judgment of Foreclosure and Sale, Cont d. Motion to vacate judgment or order: CPLR 5015 (a) 1. Newly discovered evidence that probably would have produced a different result 2. Fraud or misconduct by an adverse party 3. Lack of jurisdiction: from the beginning vacate all that came before; waived? 4. Reversal, modification, or vacatur of prior order upon which it is based. Also, a court may vacate its own judgment for sufficient reason and in the interests of substantial justice Hudson City Sav. Bank v. Cohen, (2014 NY Slip Op 06177, decided 9/17/2014, AD 2nd Dept.) citing Woodson v Mendon Leasing Corp., 100 NY2d 62, 68.
V. Judgment of Foreclosure and Sale, Cont d. CPLR Rule 2221: Motion affecting prior order. Motion for leave to renew, reargue, leave to appeal from, or to stay, vacate or modify on notice to judge who signed the order, except in certain circumstances. Specific time frames and requirements for making such motions. Assumes you responded to the original motion, want another chance to convince the court short of appeal.
VI. Sale is imminent: has been scheduled; advertised; Notice of sale to HO A. File complete application for Loan modification asap. See CFPB Mortgage Servicing Rules, 12 CFR 1024.41 B. Is Chapter 13 Bankruptcy an option: C. File Notice of Error: 12 CFR Part 1024.35 D. Order to Show Cause to stay the sale and related relief: CPLR R. 2214(d)
VII. Sale : RPAPL 231 Sale; Notice of Sale; when and how conducted
VIII. Sale has taken place CPLR 2003: Irregularity in judicial sale. Mirrored by: RPAPL 231 (6). At any time within one year after the sale, but not thereafter, the court, upon such terms as may be just, may set the sale aside for failure to comply with the provisions of this section as to the notice, time or manner of such sale if a substantial right of a party was prejudiced by the defect.
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