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Mortgage Foreclosure Defense
Mortgage Foreclosure Defense
Garvey Cushner & Associates PLLC understands homeowners facing foreclosure and recognizes the need to educate the consumer in order to put up the best defense available to them. Our foreclosure defense lawyers go further than the average foreclosure defense firm, which typically jumps to the loan modification process without verifying the debt or the party claiming you owe money.
Before our team of foreclosure attorneys works on loan modifications and short sales, they investigate and verify the identity of the owner of your mortgage loan. We confirm the authority of the mortgage servicer who is claiming a right to payment on your loan. Taking it a step further, we verify the accuracy of the bank’s numbers, the necessity and legitimacy of the add-on fees tacked on to your loan and go through the loan account history with our own trusted accountants to further investigate the loan transaction history.
Our team of foreclosure defense attorneys assists a client’s right from the start by answering the initial Summons and Complaint. It is imperative to file a timely response considering that 20-30 days from the date of service an answer and/or motion to dismiss is due. Calling the attorney on the phone who served the foreclosure papers against you is not a valid reply. You must file a Formal Answer responding to each allegation in the complaint against you and it must be acknowledged before a Notary Public. Thus, hiring an experienced foreclosure lawyer will protect your rights and extend the time necessary for the mortgage holder to proceed with its foreclosure case.
A mortgage is an interest in real property (your home) that a homeowner gives to a lender as security for a loan. When you go to the bank to get a loan for your house, you give the bank a mortgage, or an interest in your property. They keep the loan as collateral in case you are unable to pay it back. If you default on the loan, the bank may force the sale of your home via a foreclosure action in order to recover the principal and interest remaining due on the loan.
Foreclosure is a process by which the mortgagor’s (the homeowner’s) interest in the property is terminated because they failed to make timely mortgage payments. Usually, it’s because they can’t make the payments due to hardships such as unemployment, divorce, death or medical challenges. The mortgagee, or bank in most cases, applies to the court for a judicial sale and the property is sold to satisfy the loan.
Chapter 11 is normally used to reorganize a business, which may be a corporation, sole proprietorship, or partnership. The Chapter 11 bankruptcy case of a corporation does not put the personal assets of the stockholders at risk; however it does put the value of their investment in the company’s stock at risk. A bankruptcy case involving a sole proprietorship includes both the business and personal assets of the owner. In a partnership bankruptcy case the partners’ personal assets may, in some cases, be used to pay creditors in the bankruptcy case.
Corporations, partnerships, and limited liability companies (LLCs) are not allowed to file for relief under Chapter 13, therefore a Chapter 11 bankruptcy would be the only option for these entities.
This is the 64 thousand dollar question for homeowners. The answer is as follows: you have the right to force the bank to prove that they are able to sell your home right out from under you. This may seem like a simple question and an overly simple answer; however, asking the bank to prove that they can sell your home has the potential to create an extraordinarily complicated legal battle that homeowners can leverage to their benefit.
Many homeowners think that just because they took out a loan and signed a mortgage that is the end of the analysis. They feel that “I borrowed the money, so they can take my house.” There is much more to the situation than this. What most people don’t know is that there was a systematic and broad based fraud committed against the homeowners by mortgage brokers and lenders alike. In many cases, lenders authorized illegal fees on behalf of brokers. In other cases, lenders encouraged brokers to falsify documents and otherwise put homeowners into loan products that were entirely unsuitable for them. The existence of any of these circumstances in conjunction with your loan may dramatically change your foreclosure case.
By pressing your rights against the bank, it may be possible for you to recapture equity in your home. If your lender violated the law when closing your transaction, you may have the right to rescind the transaction. If you are able to rescind, the bank will be forced to tear up the mortgage and the bank will have to sue you outside of foreclosure to recover the loan proceeds. In some cases, if the bank’s violations were egregious enough, the court will tear up the note as well as the mortgage. Otherwise, the court may award damages to you that may be used as a set-off against the amount of money you owe on the note. Last, and certainly not least, if you are able to prevail on a counterclaim against your lender, the court may require the lender to pay you and your attorney’s fees.
Depending on the mortgage servicing violations present in your foreclosure file, you may be able to secure tremendous leverage against your lender that you can use to your benefit to negotiate a new loan with the lender. Garvey Cushner & Associates PLLC has a proven track record for successfully fighting foreclosure in the state courts and federal bankruptcy court. Our foreclosure defense attorneys are fully versed in the laws, procedures, and legal actions required in a foreclosure matter. The team of sophisticated litigators uses their legal experience to develop strategies and solutions designed to aggressively meet each client’s individual needs.
Foreclosure Defense Specialists
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We at Garvey & Associates know that finding the right attorney to represent you is a choice not to be taken lightly. That’s why we offer free consultations for most cases to walk you through your needs, the scope of your goals, and your budget. Call our law office at (914) 946-2200 or kindly complete the form on our Contact page to schedule a free consultation.