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Bankruptcy
As reported in the New York Law Journal dated April 2, 2012, Volume 247 Number 62, there is a proposed Rule Change to be instituted by the Office of Court Administration and Unified Court System to deal with the “shadow docket” of foreclosure. Apparently mortgage foreclosure law firms are filing foreclosures without filing either the required affidavit of service or affirmation executed by the attorney representing the mortgage lender. This requirement was imposed in October, 2010. Either of these filings would trigger a settlement conference in front of a judge or a judicial hearing officer. The shadow docket was created by the failure of the mortgage company to file either of these documents. If the affidavit of service is not filed within 20-days, or the judicial intervention form is not filed when the proof of service is filed, that will trigger the County Clerk to notify court officials to prepare either a motion to dismiss or schedule the required conference. The proposed rule is currently in the “comment” period.
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Thursday, 05 April 2012 13:53
Discharge may not be required to remove unsecured mortgage
Written by Kaitlin Russitano
Second Circuit case determines a discharge may not be required in order to remove a wholly unsecured mortgage. (In Re Herman F. Miller Jr., 22 CBN 308, 2011 WL 6257450 (Bankr. E.D. N.Y. 12/15/11). The court ruled a wholly unsecured mortgage could be removed even though the debtor was ineligible to receive a discharged based upon a prior filing.
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According to the Consumer Bankruptcy Report, Volume 22, Issue 7, bankruptcy filings were down 14-percent nationwide in January 2012 compared to January 2011. The downward trend in consumer bankruptcies is likely to continue until consumers increase their household spending.
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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.
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Bankruptcy
Friday, 20 January 2012 19:01
Foreclosure may accelerate in year 2012
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.
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Bankruptcy
Friday, 13 January 2012 20:03
New Chapter 13 Plan for Northern District of New York
Written by Kaitlin Russitano
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.
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Friday, 13 January 2012 18:58
Note & Mortgage Holder Seek Relief from Lift Stay Motion
Written by Kaitlin Russitano
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.
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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.
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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.
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Thursday, 29 December 2011 18:42
HALF of all Americans are struggling to get by on 'poor or on low income', figures reveal
Written by Kaitlin Russitano
- 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
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