Fighting Your Lender In A Foreclosure Litigation Forum

I am often faced with the dilemma of clients who have been served with a foreclosure complaint by their lender - months ago!  Although the tendency to "bury your head in the sand" and hope the problem goes away may be understandable, such delay may be fatal to defending yourself in the foreclosure litigation.  But all hope is not lost.  In New Jersey, you may be able to open a default (or even a final judgment by default) provided you have a valid excuse to the court for the delay and a valid defense to the litigation action. 

Fortunately, however, if your time to interpose an answer to the foreclosure action has not yet expired, your first order of business is to contact an attorney to discuss your matter and obtain legal representation.  An attorney will be able to prepare and serve an answer on your behalf and raise various affirmative defenses and/or counterclaims against the lender for their actions during and before the foreclosure process, or even for improper actions in approving and issuing the loan in the first place.

At Schillberglaw, we have been successful in not only stopping the foreclosure process and allowing the default (or final judgment) to be opened so as to interpose an answer and raise such valid defenses and counterclaims as a way to stop the foreclosure process, but those actions have been a vital tool in compelling the lender to review and modify the loan to a more affordable payment plan and save the home.

In the future in this blog, we will discuss these various defenses and counterclaims available to protect your rights and discover how they might help YOU save YOUR HOME.

Don't just sit there; fight the good fight!

This blog post is not considered to be legal advice, and is intended for educational purposes only.  For more information regarding any of the foregoing issues discussed above, please contact Robert F. Schillberg, Jr. (rschillberg@schillberglaw.com).

Can I Renegotiate My Mortgage With My Lender?

     One of the questions I hear most often is whether a homeowner who is having trouble making payments on their mortgage can negotiate with the lender, even if the property is in foreclosure litigation. After all, the homeowner reasons, since they have not been making payments and their credit report has taken a major hit, no lender would want to have a risky mortgage on its hands.
     However, while it is not likely that a new lender would provide a refinance out of a troubled mortgage that is in foreclosure, all hope is not lost.  The fact is, most lenders will consider a mortgage modification, either in accordance with federal guidelines or under the lender's own modification guidelines, in an effort to keep a distressed property off their books. 
     Better yet, at Schillberglaw we have found that vigorously defending the foreclosure action in court while, at the same time, attempting to negotiate a mortgage modification, is often an effective strategy in obtaining a mortgage modification that is in the best interests of the client.  
     In our next post, we will discuss litigation strategies that might assist in obtaining a mortgage modification.

Don't just sit there; fight the good fight!

Consider All Of Your Options In Fighting Foreclosure

So you are behind on your mortgage payments, "underwater" (where the value of your home is less than the amount that you owe on your mortgage(s)), or even facing a foreclosure/sheriff's sale.  You dread opening your mail every day, fearful every time the phone rings, or afraid of strangers showing up on your doorstep.  You feel as if you have nowhere to turn.

Don't bury your head in the sand, and hope the whole thing will simply "go away"; there are alternatives if you keep your wits about you, resolve to fight back and consult with an attorney to discuss your options.

Some of these options may include negotiating with your lender; fighting to stop the foreclosure process, no matter at what stage the matter may be; filing for bankruptcy; or negotiating a "short sale" of the property (where the property is sold to a buyer in an "arm's length transaction") and the lender accepts less than the amount owed in full satisfaction of the debt.

In the future on this blog, we will discuss these legal options to protect your rights and discover how they might help YOU save YOUR HOME.

Don't just sit there; fight the good fight.       

Keeping a Watchful Eye on Your Credit Report



In response to the rapidly increasing growth of identity theft, the three major credit bureaus (Equifax, Experian and TransUnion) have recently allowed consumers the right to cut off all access to their credit files.  In theory, once your credit report has been “frozen” with each of the three credit reporting bureaus, it will be virtually impossible for anyone – including YOU -- to get access to your credit report and use that as a basis for obtaining credit fraudulently.  That certainly appears to be an excellent idea for most consumers, but is this right for you?  There are certain considerations you must take into account before taking this step to further protect your credit.

Generally speaking, all that is required is for you to send a written request, with proof of ID, to each of the three credit reporting bureaus in order for a “freeze” to be fully effective.  When one considers that the bureaus can charge up to $10 each to place a freeze in effect and that the freeze will stay in place permanently, that may be a cost-effective way to protect your credit, even less expensive than a monthly credit reporting service.  However, be aware that once your account is frozen, you, too, are unable to get credit approval, thereby requiring you to contact each of the bureaus to temporarily “unfreeze” your files when you want or need credit, which may take time and, moreover, may cost you another $10 to unfreeze each of your accounts.

There are other ways, however, to protect your credit report without having to take the drastic step of freezing your file.  You can arrange for a credit reporting service to contact you by e-mail to advise if there is any inquiry or negative activity on your file.  Alternatively, you can contact the credit bureaus and place a 90 day fraud alert on your file, which will tell lenders that they should take extra steps to verify the identification of the person seeking credit.  Unfortunately, these alerts only last 90 days and must be renewed every three months.  One should at least take the basic steps of reviewing your credit report regularly to check for any unauthorized activity.  Since federal law allows you to a request a free credit report from each of the three bureaus every year, you can stagger your request for a free credit report from one of the three credit bureaus every four months.

If, while reviewing your credit report, you do note a discrepancy or other error, you must write to each of the bureaus to request that they correct the error immediately.  Under the Fair CreditReporting Act, credit bureaus are required to correct inaccurate information once you make them aware of the error.  In order to request a correction or to dispute an error, send a letter to the credit reporting bureaus, which will trigger an investigation and the bureau will initiate an inquiry with the creditor.  If the creditor cannot confirm the disputed information as beingcorrect, the credit bureau is required to remove the information.

Since recent studies have shown that up to 25% of credit reports have such mistakes that are serious enough to cause a denial of credit, it is important for you to vigilantly confirm the accuracy of your credit bureau report on a regular basis.

ROBERT F. SCHILLBERG, JR., is an attorney licensed in New Jersey and New York, with an office in Red Bank, New Jersey, practicing primarily in the areas of business and corporate law, civil litigation, municipal court, and residential/commercial real estate.