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. We 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.
Sure, we will work on a loan modification and short sale for or clients, but not until we investigate and verify the identity of the owner of you mortgage loan . We also insist on confirming the authority of the mortgage servicer 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 to verify the amount owed on the debt.
The following is provided for informational purposes only. Everyone in foreclosure should hire an attorney to represent them in the proceeding.
What is a mortgage?
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, that they keep as collateral in case you are unable to pay the loan 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.
What is foreclosure?
Foreclosure is a process by which the mortgagor’s (the homeowner’s) interest in the property is terminated. The mortgagee, or bank in most cases, applies to the court for a judicial sale and the property is sold to satisfy the loan.
What rights do I have in foreclosure?
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 have the right 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.
Why should I fight the foreclosure if I owe the money? What do I have to gain?
Many homeowners think that just because they took out a loan and signed a mortgage and 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.
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We at Garvey Cushner & 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.