The New York
Office of Court Administration recently issued an annual report estimating that
there will be a total of 41,675 new foreclosure filings during 2015. This is a
slight decrease from 2014 (about 44,000 new filings) and an even greater
decrease from 2013 (approximately 47,000 filings). The report also states that,
as of October 2015, there were 89,365 foreclosure cases pending in the state
judicial system, an indication that there are a significant number of cases
from previous years that have not been resolved.
What You Can Do to Stop or
Delay the Foreclosure Process
Once
a foreclosure case is opened and the necessary legal documents filed by the
lender, it may seem as if the foreclosure process is an unstoppable (albeit
sometimes slow) juggernaut that ends with a court judgment against the
homeowner, an auction of the home, and the eviction of the homeowner. This is
not always the case, however. Because the lender initiates the foreclosure
process by filing an action in court, the lender always retains the discretion and ability to voluntarily dismiss
the foreclosure action. Not only this, there are other ways that can stop a foreclosure from proceeding further, giving the homeowner precious time to
formulate a plan to deal with the underlying issue.
Some methods by which the
foreclosure process can be stopped include:
·
Filing for bankruptcy (either Chapter 7
or Chapter 13): When you
file for bankruptcy under any chapter of the Bankruptcy Code, an “automatic
stay” goes into effect immediately upon the filing of your bankruptcy petition.
This automatic stay prohibits your creditors from taking any further collection action against you for any debt without
permission of the court – including proceeding with a foreclosure action. While
filing for bankruptcy under Chapter 7 usually delays the foreclosure action for
several weeks or months, a Chapter 13 bankruptcy plan may enable to you to make
up past due mortgage payments over time and allow you to keep your house
(assuming, of course, you continue to make your Chapter 13 bankruptcy
payments).
·
Approval of a workout/loan modification: In a loan modification or workout, the
lender is essentially agreeing to modify the terms of your mortgage on a
permanent or temporary basis to allow you to get back on track with your
payments. If you breach the terms of the modification or workout, foreclosure
proceedings may be resumed: however, successfully complying with and completing
a workout agreement can cause the lender to dismiss the foreclosure action.
Even if a lender has initiated a foreclosure proceeding, you may be able to
reach an agreement with the lender that will save your home.
·
Temporary deferment or forbearance: This is similar to a modification
agreement and essentially involves the lender agreeing to allow you to miss one
or two payments due to a temporary but serious financial hardship. The missed
payments are added onto the end of your loan, so you will have to pay the
missed payments back at some point. A forbearance or deferment may be an ideal
solution if you defaulted on your loan because of an unexpected crisis that has
since been resolved.
The
New York Sate Unified
Court System [1] also
provides several foreclosure defenses that may be appropriate to implement in
order to slow down the foreclosure action including:
- Lack
of Standing
- Improper
Service of Summons and Complaint
- Service of Summons without including
“Help for Homeowners in Foreclosure” Notice
-
Partial
or Full Payment
-
Homeowner’s
Mental Disability or Incompetence
-
Active
Service Member
Can a Foreclosure Lawyer
Really Help Me Avoid Foreclosure?
It
is easy and tempting to become depressed, complacent, and resigned when a
foreclosure proceeding has been initiated against you. But as the Office of the
Court Administration’s report shows, you will likely have a few months – perhaps
even longer – to explore ways to slow down and/or stop the foreclosure process.
The sooner you retain a New York foreclosure lawyer, the sooner he or she can
discuss with you the options available to you to help you keep your home and/or
avoid foreclosure.
Ronald D. Weiss and the legal team
at Law Office of Ronald D. Weiss, P.C. provide experienced and dedicated legal
representation and counsel to homeowners who are facing foreclosure. Call them
at (631) 296-0912 to discuss your case today.
References:
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