LIEB BLOG

Legal Analysts

Tuesday, July 05, 2011

NY Courts Enforce Fed Modification Program

NY Courts Enforce Fed Modification Program
In one of the most important decisions of the year, the Appellate Division recognized the Making Home Affordable Handbook as binding on lenders (servicers) and precluded a foreclosure until its rules were followed.

The newest version of the Handbook can be found by clicking here.

To review the decision, click here.

While the decision was very narrow in that it only discussed how the lender participates in the program and must evaluate the borrower under the program prior to selling the house at foreclosure, the decision should be interpreted as a sounding horn to all foreclosure defense attorneys to study every word in the Handbook. Now, if a lender (servicer) makes a crazy decision, outside of the rules prescribed by the Federal Government, a borrower's attorney should attack that decision in the NY Courts.
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Monday, June 13, 2011

East Hampton Library is Getting Bigger

East Hampton Library is Getting Bigger
The East Hampton Village Zoning Board of Appeals was overturned as erroneous, arbitrary and irrational in denying a variance to increase the size of the library. The Supreme Court found that the library was an educational institution entitled to the same deferential treatment in zoning accorded to schools and religious institutions.

The takeaway is that Zoning Boards generally have a hard time restricting a public good. That is why it is always advisable to combine a public good with a zoning application when entering a municipality. Talk in terms that matter to the people who live there. Better schools, more parks, cleaner beaches as a result of the application. Sometimes you just can't do this, but to deny a library's goal of improving was too much for the Court in this matter.
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Foreclosures - MERS hit with Fatal Blow

Foreclosures - MERS hit with Fatal Blow
In a well anticipated decision the Appellate Division, Second Department (regulates all of Long Island) has saved many many homes as of June 7, 2011, a date that will be remembered in the real estate world for years to come.

The Court clearly stated as follows:

Issue:
"The issue presented on this appeal is whether a party has standing to commence a foreclosure action when that party's assignor - in this case, Mortgage Electronic Registration Systems, Inc. (hereinafter MERS)-was listed in the underlying mortgage instruments as a nominee and mortgagee for the purpose of recording, but was never the actual holder or assignee of the underlying notes."

Holding:
"We answer this question in the negative."

To read the entire decision, click here.

If one was to look back on the decision in In Re Agard where the Federal Bankruptcy Court held that splitting the note and mortgage was fatal or back to MERS v. Romaine where the dissent questioned the entire mortgage recording system invented by MERS, this decision was a long time coming.

The fact is this - Don't usurp the role of government and than ask government to help a misstep in your practices. MERS needs to play by the same rules as everyone else.

Interestingly, the Court notated that "MERS purportedly holds approximately 60 million mortgage loans" & makes this decision in the face of that.

If you are being foreclosed or know someone who is, you now have a lot more rights to potential keep your home for a long time. This will force many modifications!!!
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