Foreclosure Timeline In New York

perplexing

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Oct 19, 2017
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To add to this, after reading through the thread more, we didn't answer *at all* (just showed up to court and spoke during the 2015-2016 settlement conferences, as each notice stated) until we involved a lawyer to oppose this July/August '17 motion to vacate the lender's previous dismissal.

What was there to answer? "Uh. Yeah. We've been waiting for this because we haven't paid in years... the lender was supposed to modify and hasn't but there's no recourse for us to hold them to it for that so... g'head." Nope. We weren't going to pay a lawyer for that.

We still even get monthly statements from the most-recent servicer. "Your account is 2333 days delinquent" and showing escrow at NEGATIVE $30K or so.
 

PatZZ

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sistergldnhair

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Mar 8, 2013
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Ok, just an update to the above. I ended up consulting a lawyer and filed bankruptcy two weeks before the sale date of June 12. Had my bankruptcy court appearance June 29. Heard nothing since then, until this past week, I got a copy of a motion sent to the Bankrupcty court, from the banks attorney, requesting that the court modify the stay on the foreclosure, so the bank may proceed. They requested a hearing on August 22, or somewhere within that time frame.

When I went to consult the attorney for the Ch7, he was very surprised that the auction was going to held in the Federal Court in Westchester. He said he'd never heard auctions in federal court only county. Then I found this article..

http://www.safeguardproperties.com/News/Industry_Updates/2017/03/Foreclosure_Process_in_NY_Expedited_by_Federal_Ruling.aspx
UPDATE: My bankruptcy was discharged September 5. I just received notice that my auction date is now December 6. Merry Christmas, I guess. :(

In any case, I've been reading about NACA and am thinking of filling out the forms for them to try for a modification, which I don't think I'll be approved for based on income, but if it will postpone the auction date, and I can stay a bit longer, I feel why not. Any thoughts or insight for me? I lost my son 2 years ago, and I am having a terrible emotional time breaking up with my home.
 

J Leigh

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Apr 4, 2017
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received a mortgage from BOA April, 2009. I defaulted on May 2011 due to a loss of income and had to file bankruptcy. My mortgage debt was discharged. I requested loan modifications for over 2 years. All of which were denied for some reason or another. Bank of America served me with a complaint in 2014. My attorney responded. The court date was scheduled July 15. One month before the court date BOA offered me a loan modification with my first payment Sept 1, 2015. I complied with the terms of this until May 2017. I had an awful accident and was out of work for 4 months. All the while I kept in touch with a rep at BOA. Once I was back to work I contacted her and she send me a loan modification packet and said due to this hardship we would consider a new loan modification application. November 1, 2017 I received notice from Bank of America saying they sold my mortgage to Carrington Mortgage. I received another letter from BOA saying thank you for participating in our loan modification program and that I no longer have a contact at BOA. I haven't received a thing from Carrington Mortgage.

What happens? How long does it take for a sold mortgage to be processed? Does BOA send over the loan modification paperwork I sent to them? Being that my mortgage was discharged with BOA what does that mean with Carrington?
 

Upstater

LoanSafe Member
Jun 6, 2012
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New York
To add to this, after reading through the thread more, we didn't answer *at all* (just showed up to court and spoke during the 2015-2016 settlement conferences, as each notice stated) until we involved a lawyer to oppose this July/August '17 motion to vacate the lender's previous dismissal.

What was there to answer? "Uh. Yeah. We've been waiting for this because we haven't paid in years... the lender was supposed to modify and hasn't but there's no recourse for us to hold them to it for that so... g'head." Nope. We weren't going to pay a lawyer for that.

We still even get monthly statements from the most-recent servicer. "Your account is 2333 days delinquent" and showing escrow at NEGATIVE $30K or so.
perplexing - I've been trying to educate myself on the NY SOL laws, and I thought the SOL was tolled for the time that the FC was stayed due to a bankruptcy filing. If that's true, that would make your SOL run out December '17 (assuming June '11 acceleration). Is that right or am I missing something? And thanks for your very thorough posts!
 

perplexing

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Oct 19, 2017
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perplexing - I've been trying to educate myself on the NY SOL laws, and I thought the SOL was tolled for the time that the FC was stayed due to a bankruptcy filing. If that's true, that would make your SOL run out December '17 (assuming June '11 acceleration). Is that right or am I missing something? And thanks for your very thorough posts!
I found the bank's original acceleration letter... it was accelerated on an earlier date than I'd thought but they're still not able to foreclose because the lis pendens was never extended before expiration. Indeed, they never even applied to extend it at any point, much less before it expired (which MUST happen.)

Filing a lis pendens is the first step - REQUIRED - in a foreclosure case. In NY, it may only be filed once, lasts for 3 years, and a 3-year extension can be filed for *before* its expiration or they lose it. They CAN file for a second lis pendens but you should answer it to the court, saying that the first lis pendens in this same matter has expired and a second may not be granted. In this way, while they *are* still within the SOL, they aren't able to move forward with it... you would simply wait out the SOL... and to be safe, also wait out the period during BK when it could be possible for the court to decide it should be stalled. Also, if the bank did not voluntarily dismiss the case, wait another 6 months because there is a savings provision in the NY RPAPL that extends that period by that much if it was dismissed in any other way besides voluntarily by the petitioner... and you cannot apply to discharge the mortgage and remove the lien until the full SOL has expired. You might as well wait and not fight until you're covered under every aspect: SOL, savings provision, and appeal period.

http://www.bhpp.com/documents/Alerts-2007/Alert-4-18-2007.pdf
http://www.rmfpc.com/no-second-chance-for-expired-notices-of-pendency/

To be safe (though there is case law to the contrary since the wording is that it be tolled IF the filing prevents them from filing a lis pendens/beginning the foreclosure, which it did not), assume that the SOL is always tolled during bankruptcy. For us, that's 90 days exactly. For us, they're fully past the SOL.


If you have more specific questions, just ask. :)
 

Upstater

LoanSafe Member
Jun 6, 2012
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New York
I found the bank's original acceleration letter... it was accelerated on an earlier date than I'd thought but they're still not able to foreclose because the lis pendens was never extended before expiration. Indeed, they never even applied to extend it at any point, much less before it expired (which MUST happen.)

Filing a lis pendens is the first step - REQUIRED - in a foreclosure case. In NY, it may only be filed once, lasts for 3 years, and a 3-year extension can be filed for *before* its expiration or they lose it. They CAN file for a second lis pendens but you should answer it to the court, saying that the first lis pendens in this same matter has expired and a second may not be granted. In this way, while they *are* still within the SOL, they aren't able to move forward with it... you would simply wait out the SOL... and to be safe, also wait out the period during BK when it could be possible for the court to decide it should be stalled. Also, if the bank did not voluntarily dismiss the case, wait another 6 months because there is a savings provision in the NY RPAPL that extends that period by that much if it was dismissed in any other way besides voluntarily by the petitioner... and you cannot apply to discharge the mortgage and remove the lien until the full SOL has expired. You might as well wait and not fight until you're covered under every aspect: SOL, savings provision, and appeal period.

http://www.bhpp.com/documents/Alerts-2007/Alert-4-18-2007.pdf
http://www.rmfpc.com/no-second-chance-for-expired-notices-of-pendency/

To be safe (though there is case law to the contrary since the wording is that it be tolled IF the filing prevents them from filing a lis pendens/beginning the foreclosure, which it did not), assume that the SOL is always tolled during bankruptcy. For us, that's 90 days exactly. For us, they're fully past the SOL.


If you have more specific questions, just ask. :)
This is so helpful, thank you! The house in question (which I do not own but am interested in buying) has been in pre-foreclosure since 2006. I originally contacted the owners about doing a short sale, but the information I've learned since then makes that seem impossible (Ocwen servicing, among other things). The little bit of research I initially did sent me down a rabbit hole and now I can't stop. Granted, the information I've dug up so far has all been online, and I need to make time to get to the county courthouse to pull the full file.

Four lis pendens were filed between 6/06 and 7/08; the first three by the original lender and the last by the newly assigned lender. The owners would normally be well past the SOL, but they moved out in early 2009 and the house has been vacant since. The mortgagee has had a property preservation company mowing and winterizing since, which I believe makes them a mortgagee in possession and therefore stops the clock on the SOL. As you likely know, NY makes it so easy for a lender to foreclose on a vacant property which is why this house is such a mystery. I can't figure out why the bank has left it sitting for so long, especially since it's probably costing them $20K+ per year to hold it. The last legal record on the house was in 8/15 when the lender voluntarily discontinued action. The owner said he hasn't done anything to fight the foreclosure. He just wants the matter to be over and doesn't know what's stopping the bank from completing it.

Regardless, knowing about the lis pendens 3-year limits is another helpful piece of info that may be beneficial should there be an opportunity to fight this. I know the owner has 10 years to reclaim the property, and that would resume the SOL clock (or restart it? I'm not sure). Other than that, I've been unaware of any other options.

So, I don't really have any other specific questions, but if there's anything you think may apply here, please let me know! Thanks again!
 

perplexing

LoanSafe Member
Oct 19, 2017
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Only the first lis pendens counts. They can try to hold up the others but only one is valid.

I don't know about the RPAPL says when the owners - they are STILL the owners - are not in possession... but since they are the owners, they can TAKE possession again by living there. They need to speak to an attorney because they're still the owners and the loan is not enforceable... that's the likely cause for delay. The bank's attorney's know they cannot file another... it's very possible that all the lis pendens after the first were filed but dismissed.

Have the homeowner look through this link for the basis and then find others from more recent cases. https://casetext.com/case/nelson-v-fantino-2
 

perplexing

LoanSafe Member
Oct 19, 2017
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I'd also like to point out that it doesn't matter how many different lenders try to foreclose on it, whether it's the first and the loan is sold several times and a new lis pendens is filed by the new owner of the loan (mortgagee)... it is still the same matter: the foreclosure of the same property on the same loan. The first lis pendens holds for subsequent mortgagees who hold the loan and want to foreclose... but investors (mainly the "trusts" that bundle and manage the loans) don't seem to research the properties in securities' bundles before they buy them and end up with homes they hold the note to but cannot enforce... because the lis pendens is often not just expired but LONG expired. And again, having a valid lis pendens is the very first step - a mandatory one - to foreclose.

This is a can being kicked down the road and it WILL come to a head at a certain point. I've made sure that our 401Ks do NOT invest in real estate bundles *at all.* The ratings are complete BS.
 
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Upstater

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Jun 6, 2012
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New York
January 2013 - lis pendens filed. We file for bankruptcy; it is the only loan past due.

June 2013 - BK is complete and discharged.
perplexing, you don't directly state it, but I assume you didn't reaffirm your mortgage after your bk was discharged. Have you looked into or considered the caselaw that rules that debtors who surrender a property in bankruptcy cannot oppose foreclosure? I wonder if this throws a wrench into things...

http://media.ca11.uscourts.gov/opinions/pub/files/201515626.pdf
 

perplexing

LoanSafe Member
Oct 19, 2017
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perplexing, you don't directly state it, but I assume you didn't reaffirm your mortgage after your bk was discharged. Have you looked into or considered the caselaw that rules that debtors who surrender a property in bankruptcy cannot oppose foreclosure? I wonder if this throws a wrench into things...

http://media.ca11.uscourts.gov/opinions/pub/files/201515626.pdf
My opposition would have nothing to do with it. They CAN NOT even begin foreclosure. They cannot file even a valid lis pendens, the very first step, to start one. Their lis pendens expired 3 years after they filed it. They *could have* filed for a 3-year extension of it (only allowed once) before the first one expired but they did not.
 

perplexing

LoanSafe Member
Oct 19, 2017
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To add to this, the mortgage and the title are separate in NY state. The property still belongs to the homeowner until the foreclosure sale, which is done after judgement is obtained. You don't surrender your property in bankruptcy; the debt is simply no longer owed by the homeowner and it is up to the lender to get a foreclosure judgement to obtain the collateral (the property), sell it, and satisfy the loan. If they fail to do that, the homeowner stays the homeowner.
 

I'll Spin the Wheel Pat!

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Mar 25, 2015
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:) Hello everyone!

I am smiling today because after all this time, it is finally all over and everything turned out so awesome! I am truly blessed and grateful. Here is what happened...

After nearly six years of not paying, the bank did indeed auction off my house. In that time, my significant other and I saved enough for large down payment on a beautiful home in a nice area, which we closed on and moved in to not long before the auction date. I shouldn't say "we closed", significant other did the actual purchase just to keep me out of things for the time being. Rates were down to record lows so we did good there too. All in the all, the timing was amazing.

I decided not to forward the mail, and did periodic drive-by's of the house to check the mailbox. Not long after the auction, I received a cash for keys offer taped to the front door. All I had to do was remove all personal property and rubbish from the home by a certain date and they'd give me $6,000. Yep, I did it. I had left a bunch of crap behind, too, so I had to rent a dumpster and get some help but it was worth it. After that, I had the post office hold my mail for a while. I did it online and was able to do it for longer than they tell you you can by just doing it again for 30 days at a time.

I called the loan servicer and obtained a 1099a today. They said the loan was charged off like the other day so I might get a 1099c next year. I'm not really sure, though, are the numbers on the 1099a the same as they would be on the 1099c? Because according to the numbers on the 1099a, the outstanding debt is totally covered by the market value. So, of course I'll speak with my accountant and we'll see what happens next tax season, but, I think we're done here! :D

Looking back, the hard part was waiting and not knowing but wow, that was so much easier than selling the house or short sale. It was just like, here you go, ok thank you, done!

I wish all the best to those out there still dealing with the situation. The best advise I can give is learn all you can, be prepared and have a plan.

Over and Out
 

I'll Spin the Wheel Pat!

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Mar 25, 2015
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I forgot to add an amusing detail. The bank had been paying the insurance, right, so after they foreclosed on the house, I called the insurance company and got a refund for the remainder of the policy for the year. hehe :p
 
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sistergldnhair

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Mar 8, 2013
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Well I think my house was up for auction yesterday. Try as I might I have not been able to find any records on my property online. I'm in Orange County. I'd like to keep an eye on when the deed goes over to the bank. I guess the only way I'll know for sure is if I get a visit this week from the realtor.
 

vondes

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May 28, 2017
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I did a search across all NY counties for foreclosure cases that were initiated in 2014. I searched under three plaintiffs and this is how many cases each one has just for 2014 alone: Chase (2265), Nationstar (2481) and Wells Fargo (4542). That's 9288 cases in a year's time for just three servicers/ note owners that randomly came to mind. So how many NY foreclosure cases were filed in the court in 2014 total? How about this, how many foreclosure cases have been filed across all servicers/ note owners for all years that are still active and ongoing? It's impossible to say because one needs to put in some search criteria, you can't do a search that broad. But if I had to guess, I think it would be in the hundreds of thousands.