New York Real Estate Lawyer Blog

Have you been sued for foreclosure in New York State, are you ignoring the certified mail or the papers taped to your door. Well, that's not the best response to a foreclosure action, where they want to take your home away. Increasingly, as this mortgage foreclosure debacle ripens, courts, litigants, and attorneys are learning that foreclosure is not always the slam dunk, lock the door, win/win case that it might have been when there were fewer foreclosures. Stand up for yourself, ask an attorney about your rights, read the papers and and fight back if the facts warrant. See my prior New York State Real Estate Lawyer Blog Entry.

In past decades, bankers gave millions of mortgages to entice new homeowners to leverage their dreams, and then repackaged that leverage (loans) to sell to investors, taking their cut, nary a worry for the borrowers or the lenders. As a result of the frenzied repackaging of such loans, it turns out that many of these banks and lenders lost papers, misplaced paperwork, forged signatures, and inaccurately dated documents, creating a messy jumble of paperwork, and making it sometimes impossible to decide who owns the right to commence the foreclosure, which bank owns which mortgage. This is where you might have a chance.

As the wave of the foreclosure crisis deepens, courts are increasingly challenged because homeowners rarely show up to court to fight the process, rarely have the money to hire competent lawyers to sort out the problems. So, increasingly, judges end up examining the banks’ papers, and ruling on the affidavits before them.

Enter Judge M. Schack, 64, of New York City. Increasingly gaining respect for his no-nonsense approach to dealing with foreclosure motions, he has arguably become an exemplar of holding banks to the simple rule, “If you cannot prove ownership, you cannot foreclose.” Schack has tossed out 46 out of 102 foreclosure suits that have come before him in the past two years chastising banks for their sloppy and mistake ridden paperwork. Although a few protests from bank officials who assert Schack is unfairly acting as judge and jury are acknowledged, positive reactions from the legal community for his activism may prove to ring more loudly in the long run if more federal and state judges follow his example.

Bottom Line-- Just because the bank says it wants your house, doesn't mean it is entitled to it. You should hire competent New York legal assistance to sort out the complex and tangled web of ownership. For more on Judge Schack, read here.

The "suburbs" mean "sub-divisions," but do you understand what a "sub-division" is? When you purchase real estate in New York State, you should be sure you understand what it means to be purchasing in a sub-division.

Take the typical scenario-- Developer buys a large tract of land with the idea to break it into smaller portions of land, to build houses. Often, the sub-division of that land requires zoning and planning approval from the local village or town. During the process, the planning agencies and the Developer may draft different agreements or requirements into the "sub-division map" where you are buying your house. Generally, in addition to the local laws, you, as the owner of the smaller parcel are going to be required to abide by the terms of those "declarations of restriction," those "easements," those statements on the "filed sub-division map." They could be as mundane as not permitting chickens in the sub-division, to being as complex as requiring specific types of architecture. Regardless of their content, you, as the owner are responsible to live by them.

A declaration of restrictions is a set of limitations placed on the property rights of an owner. A homeowner in a subdivision, for example, agrees to comply with the declaration of restrictions in a signed agreement with a subdivision or condominium developer. These agreements run with the land and bind your future vendees, heirs and assigns.

Common provisions may include a minimum house size or that a minimum percentage of housing exterior must be brick, or that no home business or occupation be operated out of the house (especially noise producing occupations). If applicable, the owners within the sub-division have legal standing to bring a complaint against you if you fail to comply with any provision of the agreement.

To avoid violating your declaration of restrictions, it’s in your best interest to understand the meaning and scope of the terms by reading all the hard to read attachments to the title inspection provided by your attorney. As a buyer, demand to read the nuances of the title policy, read the "notes" on the map, read the declarations of restriction, understand the easements. Ask your attorney to review them and discuss them with you if you’re unclear or confused.

The Bottom Line-- If you are not careful, you may be buying a house that requires you to fix the road, stop a leak in a dam, or trim your trees. Read the agreements that impact your life in a sub-division.