Friday, October 29, 2010

Sample Distressed Property Agreement

As promised at the Lieb at Law, P.C. Foreclosure Filibuster class last night in Bethpage, please find below a sample distressed property agreement. This sample is intended for use by individuals, corporations, partnerships, LLCs or other business entities that, directly or indirectly, solicit or undertake employment to provide consulting services to a homeowner for compensation or promise of compensation with respect to a distressed home loan or a potential loss of the home for nonpayment of taxes. It is not necessary that attorneys and other persons/entities use the same (please see N.Y.RPP.LAW § 265-b: NY Code - Section 265-B: Distressed property consulting contracts). Please be aware that the two (2) "Notice of Cancellation" provisions contained below are there by design. It is necessary, under the above law, to attach two (2) copies of the Notice of Cancellation provision to any sample distressed property agreement. Therefore, we've provided the same for your use. Here it is:

WHEREAS, “Homeowner” and Distressed Property Consulting Firm, who’s primary place of business is located at _____________________and telephone number is ________and fax number is________, are parties to a Consulting Agreement dated as of _____,__,201_; and;

WHEREAS, the Consulting Agreement provides the Services to be delivered by Distressed Property Consulting Firm (‘Consultant”) or such other persons as Consulting Firm may designate.

WHEREAS, the scope of this agreement entails that the Consultant provide services to help to achieve any of the following for homeowner:

(i) stop, enjoin, delay, void, set aside, annul, stay or postpone a

foreclosure filing, a foreclosure sale or the loss of a home for

nonpayment of taxes;

(ii) obtain forbearance from any servicer, beneficiary or mortgagee or

relief with respect to the potential loss of the home for nonpayment of

taxes;

(iii) assist the homeowner to exercise a right of reinstatement or

similar right provided in the mortgage documents or any law or to

refinance a distressed home loan;

(iv) obtain any extension of the period within which the homeowner may

reinstate or otherwise restore his or her rights with respect to the

property;

(v) obtain a waiver of an acceleration clause contained in any

promissory note or contract secured by a mortgage on a property in

foreclosure;

(vi) assist the homeowner to obtain a loan or advance of funds;

(vii) assist the homeowner in answering or responding to a summons and

complaint, or otherwise providing information regarding the foreclosure

complaint and process;

(viii) avoid or ameliorate the impairment of the homeowner's credit

resulting from the commencement of a foreclosure proceeding or tax sale;

or

(ix) save the homeowner's property from foreclosure or loss for

non-payment of taxes.

NOW, THEREFORE, in consideration of the foregoing premises and the covenants and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto intending to be legally bound, hereby agree as follows:

(a) As consideration for Consulting Firm’s agreement to enter into this agreement and rendering the Services, homeowner shall pay to Consulting Firm at the conclusion of the Consulting Firm’s services a fee of $_______; with no payments being charged or accepted at any time prior to the completion of consultants services. Terms of payment shall be ____________.

(b) Except as specifically amended hereby, the Consulting Agreement shall continue in full force and effect unmodified and the parties hereby reaffirm the same.

IN WITNESS WHEREOF, this agreement has been executed by and on behalf of the parties hereto to become effective as of the day and year first above written.

HOMEOWNER.




By:


_______________________ Dated:___________

Homeowner’s name typed

Homeowner







Distressed Property Consulting Firm.




By:


_______________________ Dated:____________

Consultant’s name typed
Consultant

Sworn to and subscribed before me this _____day of ____2010





Sworn to and subscribed

before me this _____day of ____2010

Notary Public

NOTICE REQUIRED BY NEW YORK LAW

You may cancel this contract, without any penalty or obligation, at

Any time before midnight of _____ (fifth business day after

execution).

(the "Consultant") or anyone working for the Consultant may not take any

money from you or ask you for money until the Consultant has

completely finished doing everything this Contract says the Consultant will

do.

You should consider consulting an attorney or a government-approved

housing counselor before signing any legal document concerning your

home. It is advisable that you find your own attorney, and not consult

with an attorney recommended or provided to you by the Consultant. A

list of housing counselors may be found on the website of the New York

State Banking Department, www.banking.state.ny.us or by calling the

Banking Department toll-free at 1-877-BANK-NYS (1-877-226-5697). The

law requires that this contract contain the entire agreement between you and

the Consultant. You should not rely upon any other written or oral

agreement or promise."

NOTICE OF CANCELLATION

Note: You may cancel this contract, without any penalty or obligation,

at any time before midnight of ______. (Enter date)

To cancel this contract, sign and date both copies of this cancellation

notice and personally deliver one copy or send it by facsimile, United

States mail, or an established commercial letter delivery service,

indicating cancellation to the Distressed Property Consultant at one of

the following:

Name of Contractor_________________________

Street Address_____________________________

City, State, Zip___________________________

Facsimile:_________________________________

I hereby cancel this transaction.

Name of Homeowner:_________________________

Signature of Homeowner:____________________

Date:______________________________________

NOTICE OF CANCELLATION

Note: You may cancel this contract, without any penalty or obligation,

at any time before midnight of ______. (Enter date)

To cancel this contract, sign and date both copies of this cancellation

notice and personally deliver one copy or send it by facsimile, United

States mail, or an established commercial letter delivery service,

indicating cancellation to the Distressed Property Consultant at one of

the following:

Name of Contractor_________________________

Street Address_____________________________

City, State, Zip___________________________

Facsimile:_________________________________

I hereby cancel this transaction.

Name of Homeowner:_________________________

Signature of Homeowner:____________________

Date:______________________________________

Tuesday, October 26, 2010

New Seats Available for 10/28 Foreclosure Filibuster Class in Bethpage!

New Seat Openings - Because of last minute cancellations - Registration is now Available for this Thursday's Foreclosure Filibusters Class at Bethpage Federal Credit Union! (Brand new class - 3 credits)

Register now!

http://www.liebatlaw.com/realestateschool/register/6

Friday, October 22, 2010

Welcome to the world of the foreclosure defendant

The tide has turned. The homeowner is right. The home is paramount. We will protect the disadvantaged.


Law is like a seesaw and today is the homeowner's day. Just this week, New York became the first state to require lenders to vouch for the accuracy of their mortgage documents. In fact, the assurance must come in the form of an attorney certification by way of affirmation. The affirmation must state that counsel has taken reasonable steps to verify the accuracy of documents filed in support of residential foreclosures. Such residential foreclosures appear to include condos, 1-4 family homes, private homes, but no owner-occupied requirement appears, which is broader than the other requirements to date in this field.

According to a Press Release Issued by the Unified Court System:
Plaintiff's counsel in foreclosure matters must submit the affirmation at one of several stages. In new cases, the affirmation must accompany the Request for Judicial Intervention. In pending cases, the affirmation must be submitted with either the proposed order of reference or the proposed judgment of foreclosure. In cases where a foreclosure judgment has been entered but the property has not yet been sold at auction, the affirmation must be submitted to the court referee, and a copy filed with the court. five business days before the scheduled auction. Counsel is also obligated to file amended version of the affidavit if new facts emerge after the initial filing.

It seems no foreclosure auctions will be happening this week in the wake of the 5 day rule.

To see a copy of the required affirmation, click here. To view the law, click here. Fore more generalized info about residential foreclosures, click here.

Yet, this is not all, it gets better: A new law allows homeowners to recoup legal fees in foreclosure cases proclaims the New York Times in an article on October 21, 2010. To read the article, click here.
The law - Access to Justice in Lending Act - which can be found by clicking here, provides attorneys fees to defendants who are successful in a foreclosure action.

The stated purspose of the law is as follows:
The purpose of this bill is to allow borrowers in a foreclosure proceeding access to legal representation by providing that mortgage agreements which allow a prevailing lender to recover attorneys fees in a foreclosure proceeding shall be read to allow prevailing borrowers to recover attorneys fees as well, thereby enabling borrowers with meritorious defenses to foreclosure to obtain the legal representation necessary to assert those defenses.

So, mortgagors its time to get your ducks in a row. Lets clean out the cannons. Gather your troops. Its time for war.

Thursday, October 14, 2010

NEW CE Class: FORECLOSURE FILIBUSTERS (Southold and Bethpage Openings)

http://myemail.constantcontact.com/NEW-CE-Class--FORECLOSURE-FILIBUSTERS--Southold-and-Bethpage-Openings-.html?soid=1103454891678&aid=uHHMY5d46Io

NEW CE Class: FORECLOSURE FILIBUSTERS (Southold and Bethpage Openings)

http://myemail.constantcontact.com/NEW-CE-Class--FORECLOSURE-FILIBUSTERS--Southold-and-Bethpage-Openings-.html?soid=1103454891678&aid=uHHMY5d46Io

Wednesday, October 13, 2010

CLASS OPENINGS: SOUTHOLD AND SOUTHAMPTON

Attention Hamptons & North Fork Real Estate Professionals: Registration NOW available for Continuing Education Courses in Southold and Southampton. Classes are 3 Credits Each and Free! (Thanks to our sponsors HANFRA, SEA TOW INTERNATIONAL, and SOUTHAMPTON INN)

November 4th - (Southold)** NEW COURSE ** FORECLOSURE FILIBUSTERS

November 11th - (Southampton) ** COMMERCIAL REAL ESTATE

- To register go to http://liebatlaw.com/lal/RealEstateSchool/Register


About The Courses:

Foreclosure Filibusters
Credits: 3 Hours

Instructor(s): Andrew M. Lieb, Esq., MPH

Summary: We are pleased to offer this advanced seminar on delaying the foreclosure process. This course is a modified version of a course first taught by Mr. Lieb to hundreds of attorneys through First American Title Insurance Company of New York's CLE program. Yet, we tailored the content to help Real Estate Professionals understand the Federal Programs available (such as HAFA’s Proactive Short Sale Agreement requirements) and how they can best utilize the programs to close deals before the auction.

After taking this course, a Real Estate Professional should feel at ease with the Making Homes Affordable Program, be knowledgeable about Restraining Orders through Motion Practice and become familiar with Chapter 7 and 13 Bankruptcies.
Real Estate Professionals will become empowered to educate their clients on techniques to avoid a deficiency judgment while prolonging the foreclosure process and saving face while avoiding the foreclosure auction.



Commercial Real Estate Course
Credits: 3 Hours

Instructor(s): Andrew M. Lieb, Esq., MPH; Jennifer Pendzick

Summary: For both residential agents looking to expand their know-how and commercial professionals looking to hone their skills. This survey course discusses the commercial value add, land use (zoning), property management, commercial valuation, the 1031 exchange, and the tenants in common ownership structure.