Capital Region housing cost for both rental and mortgages are higher than New York City. When considering the cost of housing verses the median income, 51.4% of households in Albany devote more than 35% of their income to housing as opposed to 42.2% devoted to housing in New York City. This is according to the Times Union Article on Monday, January 10, 2011, “Rent eats a bigger slice of the tenants’ pie.” The average Capital Region rent from 2007 to 2009 went from $779.00 to $833.00, the article reports that are according to the census. It is possible that rent has increased because of the housing meltdown and that there is more demand for rent, and less people are able to qualify for mortgages after mortgage underwriting has gotten tighter since the economic down term.

 

http://www.nationalmortgagesettlement.com/

 

Recently in the news, the federal government along with 49 state attorneys general have negotiated a joint state-federal settlement with loan servicers such as Ally/GMAC, Bank of America, JPMorgan Chase, Citi Bank, and Wells Fargo.  The settlement is providing relief to borrowers who were affected by the banks wrongdoing on robo-signing and mortgage servicing.  There are certain requirements that must be met to receive your compensation.  Please visit the link above for more information.

 

 

There are indications seen by some companies that track real estate data that foreclosures may accelerate in the year 2012.  For various reasons, foreclosures have slowed, particularly in 2011, despite the ever increasing time during which mortgage payments have not been made.

For home owners who have not been making their mortgage payments, the passage of time may ultimately make it difficult if not impossible for them to save their homes.  The ever increasing mortgage arrearage may climb to a point where neither a chapter 13 bankruptcy nor a mortgage modification may solve the issue.  In a chapter 13 bankruptcy, mortgage arrearage can be repaid to the bank throughout a five year bankruptcy plan, and the regular mortgage payments would resume during that time.  While it is understandable that a home owner would try to modify their mortgage, the longer the modification process continues, the arrearage continues to grow.  If after many months the bank refuses the modification, or proposes a modification that does not really help, the chapter 13 bankruptcy can be much more expensive because there would be higher arrearage number to repay.  It should also be noted that people with a second mortgage, that depending on the value of their home, a second mortgage can be completely eliminated in a chapter 13 bankruptcy.

The important thing is for a home owner who is behind on their mortgage to get good advice early on so that the home owner can fully assess their options.  Merely waiting it out while the bank takes no action can lead to an unsolvable problem regarding saving your home.

 

 

Northern District of New York institutes model chapter 13 plan.  The model chapter 13 plan has been instituted by all three judges in the Northern District of New York, Chief Judge Robert Littlefield, Bankruptcy Judge in Utica Diane Davis, and Bankruptcy Judge in Syracuse Margaret Cangilos-Ruiz.  The model plan is nine pages long and is meant to address certain specific issues such as classification of claims, treatment of secured claims, assumption and rejection of leases and affecting creditor’s rights as well as clearly denoted the intention of the debtor and filing cases.  The plan was years in the making but is now uniform district wide.

 

 

 

 

Cited: Holder of Note & Mortgage Had Standing to Seek Relief

Consumer Bankruptcy News Dec 22, 2011 vol. 22, issue 4

The holder of a note and mortgage has standing to bring a motion to lift stay.  Capital One Bank received an assignment from Mortgage Electronic registration system (MERS) was able to overcome an objection to the lift stay motion by a chapter 7 trustee.  The court in essence determined that whether Capital One Bank would ultimately prevail in a state court foreclosure, is an issue for state court determination.  However in 11 usc 362(d) the MERS possession of the note and mortgage in the assignment is enough to establish standing for Capital One to pursue a lift stay motion.

 

 

 

 

cited: US Foreclosure Filings Hit 4-Year Low in 2011

As reported in a cnbc article, foreclosures are at a 4 year low in 2011.  However, this number is artificially depressed according to real estate experts.  Some states have such a dysfunctional foreclosure process that it is bogging down housing foreclosures.  At Rodriguez & Doern, we have noticed that in New York State specifically with the conference program and the NYS judge on the foreclosure progress, this has elongated the average foreclosure from six months to well over a year. Although foreclosure filings may be down there is still a large amount of shadow listings, which is more delinquent mortgages and houses that are in pre-foreclosure status that have flooded the market and continue to keep the foreclosure process depressed.  As the article indicates even though foreclosures are down there are still a ton of properties which are delinquent.  We believe these are record levels.

cited: US Foreclosure Filings Hit 4-Year Low in 2011

As reported in a cnbc article, foreclosures are at a 4 year low in 2011.  However, this number is artificially depressed according to real estate experts.  Some states have such a dysfunctional foreclosure process that it is bogging down housing foreclosures.  At Rodriguez & Doern, we have noticed that in New York State specifically with the conference program and the NYS judge on the foreclosure progress, this has elongated the average foreclosure from six months to well over a year. Although foreclosure filings may be down there is still a large amount of shadow listings, which is more delinquent mortgages and houses that are in pre-foreclosure status that have flooded the market and continue to keep the foreclosure process depressed.  As the article indicates even though foreclosures are down there are still a ton of properties which are delinquent.  We believe these are record levels.

 

• Low-income threshold is $45,000
• Housing and childcare costs absorb half of income
  
• Cutback states Arizona, New Mexico and South Carolina worst-hit

By REBECCA SEALES @ Daily Mail

Last updated at 5:18 PM on 15th December 2011

Read more: http://www.dailymail.co.uk/news/article-2074589/Half-Americans-poor-low-income.html#ixzz1hx5FqHKB

 

By ALEX VEIGA

Fewer U.S. homes entered the foreclosure process or were taken back by banks in November, reflecting a seasonal pullback in foreclosure activity by lenders and mortgage servicers.

But for some homeowners already behind on their mortgage payments, the end-of-year slowdown isn't likely to provide much of a reprieve.

The number of homes in foreclosure and scheduled to be auctioned hit a nine-month high last month, foreclosure listing firm RealtyTrac Inc. said Thursday.

The surge came about because of a spike three months earlier in homes entering the foreclosure process for the first time. And unless those borrowers find a way to get current on their mortgage payments, many of those homes will likely be sold at auction or end up being taken back by the lender.

"Despite a seasonal slowdown similar to what we've seen each of the past four years, November's numbers suggest a new set of incoming foreclosure waves," said RealtyTrac CEO James Saccacio.

All told, foreclosure auctions were scheduled on 96,540 U.S. homes last month, RealtyTrac said. That's up 13 percent from October, but still down 17 percent from November last year.

Some states posted far higher monthly increases in scheduled home auctions last month. In California, they were up 63 percent, while in Washington they climbed 56 percent.

Those homes could end up back on the market as foreclosures or short sales, when a homeowner sells their property for less than what they owe on their mortgage. And that means more pressure on home values, because foreclosures and short sales typically sell for a lot less than other homes.

U.S. foreclosure activity slowed sharply starting in October of last year, after problems surfaced with the way many lenders were handling foreclosures. Specifically, signing off on home foreclosures without first verifying documents — a practice referred to as "robo-signing."

Many of the nation's largest banks reacted by temporarily ceasing all foreclosures, re-filing previously filed foreclosure cases and revisiting pending cases to prevent errors.

The pace of foreclosure activity continued to slow much of this year as major lenders worked toward a possible settlement of government probes into the industry's mortgage-lending practices.

Those settlement talks, led by a group of state attorneys general, have suffered some setbacks in recent months after officials in California and Massachusetts broke with the rest of the states. There also has been disagreement among the states' prosecutors over what terms to offer the banks.

Still, there have been signals that foreclosure activity will be increasing in coming months.

Banks stepped up action in August against homeowners whose mortgage had gone unpaid. The number of homes receiving an initial notice of default that month jumped 33 percent from July. Default notices also rose between September and October.

That helped set the stage for the sharp increase in scheduled foreclosure auctions last month and will likely contribute to an anticipated bump in home repossessions early next year, Saccacio said.

Home repossessions hit their lowest level since March 2008 last month, according to RealtyTrac. In all, banks took back 56,124 homes last month, down 17 percent from October and from November a year ago.

Banks are now on track to repossess some 810,000 homes this year, down from more than 1 million last year, according to RealtyTrac. The firm had originally anticipated some 1.2 million homes would be repossessed by lenders this year.

High unemployment, a sluggish housing market and falling home values remain a major factor in homeowners falling behind on their mortgage payments. Many borrowers also have simply stopped paying their mortgage because they are underwater — a term for owing more on a mortgage than the home is worth.

At the end of September, 10.7 million, or 22.1 percent of all U.S. homes with a mortgage, were underwater, according to CoreLogic. And an additional 2.4 million borrowers had less than 5 percent equity in their homes, the firm said.

In all, 224,394 U.S. properties received a foreclosure-related notice last month, down 3 percent from October and down 14 percent from November last year, RealtyTrac said. That amounts to one in every 579 households.

Initial default notices declined 8 percent from October and were down 9 percent from November last year.

At the state level, Nevada had the nation's highest foreclosure rate last month with one in every 175 households receiving a foreclosure notice — more than three times the national average.

California, which alone accounted for 28 percent of all U.S. homes receiving a foreclosure notice last month, had the second-highest foreclosure rate. Arizona was third.

Rounding out the top 10 states with the highest foreclosure rate in November are Utah, Georgia, Michigan, Florida, Illinois, Ohio and South Carolina.

 

Bank of America is in agreement with a proposed settlement that was brought between investors and the bank, the country’s largest mortgage servicer. In order to deal with its many troubled mortgages, both parties have made an arrangement to engage many “sub servicers” which are small service companies that will expedite the process in determining whether people will qualify for home modifications. Although a very small percentage of modifications have been approved nationally through the HAMP program, Bank of America is in an attempt to expedite the qualifications who do qualify for modifications. In turn, this settlement will also expedite foreclosure for those who cannot afford to keep their homes. The basic litmus test for whether you qualify for a modification is that the home owner’s monthly mortgage payment does not exceed 31% of their monthly gross income and if the proposed modification is more than the 31% , the modification will not be approved. Bank of America along with other banks are experiencing a surge of defaults. The new proposals, the sub service role, are promising that they will provide an answer to modification applicants within 60 days of receiving the paperwork. These companies would receive a 1.5% unpaid principal balance fee for a successful permanent modification. So the days of many people remaining in their homes under the guides of getting a modification that will never happen are coming to an end. A lot of the loans that Bank of America has apparently were once acquired from the business takeover of Countrywide and many of those loans, according to the article, are doomed for failure.

Source: CNBC.com article reprinted by the New York Times on July 12th, 2011 Bank’s Deal Means More Will Lose Their Homes

An entity known as Mortgage Electronic Registration Systems (MERS) according to a New York Times Article from March 7, 2011, played a significant role in the collapse of the mortgage industry that occurred in 2008. Some courts have found that MERS is a fictional company that has clouded the true ownership of many mortgages. The model was established by Fannie Mae and Freddie Mac and soon followed by JP Morgan Chase, Bank of America and other large banks; it was seen as a high speed system to make the mortgage securitization easier and cheaper. It also was used to get around filing the appropriate legal documents in the county clerk’s offices, specifically a clerk’s office in Suffolk County New York even refused to accept documents from MERS. A bankruptcy court in New Jersey had refused to allow MERS to have standing to litigate the mortgage in its court. The article also discusses how inaccurate MERS is about denoting who truly owns the mortgages. The design of MERS was to make the transfer of mortgages more efficient but MERS itself is unable to even keep track of the mortgages they own.

Commentary on article by Attorney James E. D. Doern

Although some courts have stricken mortgages it is my legal opinion it’s going to be a very usual situation where a mortgage will be stricken simply because the ownership of it is confused. Most mortgages are dually filed and they are a lien against the property. Somebody owns the mortgage, finding out who may be difficult but just because it’s difficult to find out who owns it doesn’t necessarily mean that the lien will not survive and the court will strike the lien. So for most of our clients the mortgage lien will survive regardless of whether some outfit such as MERS is involved. However, this does not change that this is very difficult to deal with these servicing agents from a consumer standpoint in terms of paying your mortgage and getting any kind of servicing from them and the troubles that have occurred with the HAMP program is detailed in other blogs on this website points out the difficulty of modification of mortgages.

Reported in vol. 33, no. 10 criticizing an ALJ’s analysis and revealed an all too common misunderstanding of mental illness, “The very nature of bipolar disorder is that people with the disease experience fluctuations in their symptoms, so any single notation that a patient is feeling better or has had a ‘good day’ does not imply that the condition has been treated.”

 

cited: Scott v Astrue, 647 F.3d 734 (7^th Cir. 2011)

 

 

 

 

In the case Williams v Astrue the Northern District of Indiana reversed the administrative law judges hearing where the plaintiff had morbid obesity as a severe impairment and the district court considered the other impairments that the claimant had.  The claimant also suffered from a combination of bilateral knee impairments.  The court essentially said you have to take a combination of impairments as a whole in order to assess disability determination.

 

The Law Firm Rodriguez & Doern is now accessing Social Security Disability Claimant’s records online by electronic records express.  This is a secure online system where you can access the records that are being kept  in the Office of Disability Appeals for review electronically over the internet.  This should give more prompt information to the law firm to better assist our clients.

In the June issue of the NOSSCR Newsletter, Vol. 33 No. 6, It was reported that a claimant was allowed to reopen their appeal from 1978. The claimant showed “good cause” under social security ruling 91-5p and replied on “mental illness which prevented him or her from understanding the procedures to appeal and have good cause to file a late appeal.” This decision gives incredible hope to any claimant that has a mental illness or mental impairment; you can argue that good cause prevented you from filing an appeal within 60 days of your denial.

-James E. D. Doern

Weight of Medical Evidence
Mussi v Astrue, 744 F.Supp.2d 390 (W.D.Pa.2010)
NOSSCR Volume 33, No. 5 – May, 2011

Administrative law judge in a social security case cannot reject a treating physicians opinion without providing reason that are “as comprehensible and analytical as feasible, and must provide the factual foundation for his decision and the specific findings that were rejected.” In this particular case there were several opinions rendered from treating sources of the poor emotional health of the claimant. At Rodriguez & Doern it is our recommendation that the claimants get whatever possible opinion testimonials from their treating physicians supported by the medical records which should be given controlling weight at the hearing. It significantly improves the claimant’s chance of being successful at a hearing if the treating physician supports the disability claim.

-James E. D. Doern, Esq.

In the April 2011 NOSSCR Newsletter reports that the appeals counsel has ruled that the claimant has absolute right to decline a video hearing under the code of Federal Rules and Regulations. The request simply has to be made timely and at the earliest opportunity before the time is set for the hearing. The claimant also has to show good cause for the decline. It will be deemed sufficient enough for good cause, if you promptly object to the video conference hearing.

The Albany District Hearing Office of Region 2 has a National Ranking for the month of August through September placing 83rd in the nation with a delay of 398 working days.

cited: NOSCCR vol.32, no. 9 - September 2010

Cited: No. 1812 Fibromyalgia, NOSCCR, Vol. 32, No. 9 Sep. 2010.

The 11th circuit has ruled recently in a case reported in the National Organization of Social Security Claimants’ Representative (NOSSCR) newsletter. That administrative law judge in a social security case cannot reject a treating physician’s opinion in a Fibromyalgia case based upon on lack of clinical findings. In a Fibromyalgia case a claimants subjective complaints of pain “are often the only means of determining the severity of patient’s conditions and the functional limitations cause thereby.” The court apparently understood that Fibromyalgia is extremely debilitating and the pain is a subjective determination by the patient.

-James E. Doern

According to NOSSCR, Social Security Forum, Volume 32, Number 5: May 2010 Edition, Albany is ranked 64th in terms of national ranking by the Social Security Administration for their processing times of Social Security Claims. The approximate average processing time is 418 days, which means from the date of your claim of filing an appeal it takes 418 days to process the hearing date and ultimately a decision.