About Me
“ Craig D. Robins, Esq., has been a practicing Long Island bankruptcy attorney for over twenty-four years ”
Foreclosure Defense
What will become of Steven J. Baum -- the reviled King of Foreclosures in New York
Written by Craig D. Robins, Esq.
Will Steven J. Baum, King of New York Foreclosures, Lose His Crown?
Foreclosure entrepreneur Steven J. Baum is somewhat of a curiosity here in New York.
I, for one, have my own fascination of the man and his law firm, as evidenced by having written three lengthy blog posts about his escapades, dealings and bungling in the New York court system.
Why? For starters, Baum has filed more foreclosure proceedings against New York homeowners than any other attorney in our state’s history. See my detailed post on him – Has Steven J. Baum, P.C. Served You with Foreclosure Papers?
As a foreclosure defense attorney, I regularly defend clients who were served with foreclosure pleadings that his firm prepared.
Secondly, Baum has developed a reputation for not being a good king, but rather, a wicked king. To me, taking illegal shortcuts to evict people from their homes is truly heinous.
Constantly criticized by the courts for sloppy and shoddy foreclosure practices, he does not enjoy a stellar reputation. He has been sanctioned, criticized and lambasted by the courts. A Long Island judge recently described his conduct as “out of the Twilight Zone.”
But if Baum is King of Foreclosure here in New York, he should take heed of the fate of David J. Stern, the King of Foreclosure of Florida, who is currently in a viscous free fall from grace, and in the process of losing his crown in the Sunshine State.
Before addressing Baum, lets look at his brethren King in Florida.
Florida King of Foreclosure – David J. Stern – Loses His Kingdom
David J. Stern, for a time, seemed to have it all. In 2009, his Florida firm handled an incredible 70,000 foreclosures – about five times more than Baum here in New York. The Stern firm brought in $260 million in revenue that year.
The firm had 1,200 employees which enabled Stern to enjoy a lifestyle that included grand mansions, flashy sports cars and a yacht named Misunderstood. Money was flowing big-time. It was reported that one of his 13 or so exotic luxury cars is a $1.85 million 2008 Bugatti Veyron.
Stern owns a $15 million mansion on an island in Fort Lauderdale, a $6 million beachfront condominium in the city, and another $6 million home.
But here’s some news most people did not know, as reported in this week’s New York Times. Stern actually took his foreclosure mill public by selling his foreclosure operations to a newly-formed, publicly-traded corporation, set up by investors just to securitize Stern’s business of providing foreclosure services. The company is listed on NASDAQ.
Stern pocketed about $60 million from this transaction and still retains a large percentage of stock in the newly-formed company, known as DJSP Enterprises. Stern became chairman of the new company and still receives a handsome salary. The company even has a fancy website: http://www.djspenterprises.com/.
Here’s the Working Relationship Between the Public Corporation, DJSP, and Stern’s Foreclosure Law Firm
The corporation now owns the law firm’s “back office operations.” The corporation then sells these services back to the law firm. The law firm’s clients, consisting of big banks with large mortgage portfolios, then pay fees to the law firm to bring foreclosure proceedings. Finally, the law firm shares these fees with the corporation. Investors who have invested in the corporation receive dividends on their stock, and the value of the stock can rise or fall.
If that sounds weird, it should. Imagine if I took my law firm’s paralegals, sold them to a company for a profit, and then bought back their services, this time from the company. What kind of investors would be foolish enough to fall for something like that, especially when one can argue that such an unconventional arrangement constitutes an illegal splitting of legal fees?
Incidentally, DJSP states that it out-sources a large part of its paperwork and document preparation services to the Philippines. So, many of those who were foreclosed upon in Florida were served with foreclosure pleadings that were prepared in Manilla.
Stern must feel that there’s nothing like enlisting help from foreigners abroad to assist in evicting our own citizens.
The Kingdom Comes Crashing Down
We are all aware that our country’s mortgage meltdown mess was created by the securitization of mortgages that were sold and traded like stocks on the secondary mortgage market. Now we have one of the country’s largest mortgage foreclosure law firms going public by securitizing itself into publicly-traded stock.
However, in the past few months, there have been revelations that the Stern foreclosure mill had engaged in what appeared to be a massive, wholesale robo-signing foreclosure enterprise involving documents that were falsified to speed up the foreclosure process. Not exactly good news for the corporate investors or Stern. The business is now under major scrutiny.
The Florida Attorney General began an investigation into possible mortgage foreclosure fraud. Numerous homeowners began asserting various fraud and robo-signing defenses. Several foreclosure defense attorneys brought class actions against the firm. Embarrassing videos of depositions of foreclosure mill employees admitting to robo-signing went viral on Youtube.
To add to Stern’s woes, here’s some recent happenings:
● The Stern firm lost its biggest clients – Citibank and Fannie Mae
● Many of the firms’s executives left
● The firm laid off 80% of its employees (that’s 800 people)
● Shares in the company went from $14 to 50 cents
● The company is facing lawsuits from its investors alleging they were defrauded and misled
● Employees who were laid off have sued, arguing the company broke federal laws
● There may be issues as to whether the scheme to sell the company is really an illegal scheme to split profits, which attorneys are prohibited from doing
● It has been revealed that some of the ”consultants” and investment bankers who developed this deal have a history of run-ins with regulators and the S.E.C., and previously settled charges of engaging in fraudulent transactions in other deals.
● Many of the firms’s executives left
● The firm laid off 80% of its employees (that’s 800 people)
● Shares in the company went from $14 to 50 cents
● The company is facing lawsuits from its investors alleging they were defrauded and misled
● Employees who were laid off have sued, arguing the company broke federal laws
● There may be issues as to whether the scheme to sell the company is really an illegal scheme to split profits, which attorneys are prohibited from doing
● It has been revealed that some of the ”consultants” and investment bankers who developed this deal have a history of run-ins with regulators and the S.E.C., and previously settled charges of engaging in fraudulent transactions in other deals.
Will Baum Lose His Crown Too? How Much Is At Stake?
First, let’s put a value on Baum. If Stern received $60 million for his law firm and still retained a substantial interest, not to mention an impressive salary, and also knowing that he made many, many millions before that time, then by my most unscientific measure, Steven J. Baum has got to be worth at least $50 million or more – money that he made by evicting New Yorkers from their homes.
Now, let’s ponder if Baum could be headed into similar trouble.
Baum, too, has a production-line foreclosure mill, more similar to a factory than a law firm.
The Baum Firm Has Placed Some of Its Back-Office Operations into a Separate Legal Entity – Pillar Processing, LLC
Like Stern, Baum, too, appears to have turned a large part of his back-office operation into a separate, but private company – Pillar Processing, LLC. However, no one seems to know how many millions of dollars Baum received for selling it.
Since Pillar Processing is not a publicly-traded corporation, there is little info about this company. What we do know is who purchased it – Manhattan heavy-hitter private-equity firm Tailwind Capital LLC. This is an independant private equity firm, which, according to its website, is focused on controled investments in middle-market healthcare, media/communications, and business services companies.
The firm, which was founded in 2003, manages about $2 billion.
As a bicycle racer, I’ve heard of the firm before. A former partner of Tailwind Capital, Thomas Weisel, started Tailwind Sports, which was one of the sponsors of the United States Postal Service Bicycle Team – the world-famous team of Lance Armstrong who won the Tour de France seven times, several of which he was wearing a jersey that listed Tailwind Sports as one of the sponsors.
Like Stern’s corporation, DJSP Enterprises, Pillar Processing has its own website – http://www.pillarproc.com/. The website states: Pillar Processing LLC is a leading provider of business process outsourcing services to the default management sector of the residential mortgage industry.
Also, doing a quick WHOIS internet domain search reveals that Pillar Processing is the registrant of the Baum Law Firm website.
The Baum relationship with Tailwind is not necessarily good for homeowners, as it means that there is now $2 billion of muscle behind the drive to evict New York homeowners from their homes.
Baum, Pillar Processing and Chase Mortgage Get in Trouble
In a 2007 bankruptcy case pending in New York City (SDNY) before Judge Cecelia G. Morris, Baum’s firm brought a motion for relief from the stay. After the court raised some issues with the mortgage and scheduled an evidentiary hearing, Pillar Processing filed a letter with the court advising the court that the lift-stay motion “has been withdrawn.”
Judge Morris was understandably quite upset as Pillar Processing was a total stranger to the court. The letter did not identify or explain its relationship with the Baum firm, nor was it a part of any court record for any case. The letter was filed by a Baum attorney.
Judge Morris refused to recognize the letter and instead denied the pending lift-stay motion. She also issued a decision as a warning that the conduct here amounted to an abuse of process and she sanctioned the mortgagee (Chase) for the debtor’s actual expenses incurred in response to the motion. (In re: Schuessler, SDNY 07-35608).
What Will Be the Fate of the Baum Firm and Pillar Processing?
Will Baum suffer the same fate as the fiendish Florida Foreclosure King?
Stay tuned. At the rate his firm is going, with class action suits, ongoing criticisms from the courts, new revelations about possible robo-signing conduct, and more, the answer is possibly yes.
Read More About the Steven J. Baum and his Foreclosure Mill
I discussed many of these issues in my prior post: Has Steven J. Baum, P.C. Served You with Foreclosure Papers?
In that post I discussed the numbers of foreclosure cases he filed, the concept that his firm is really a factory, and some of the questionable conduct that he has engaged in including filing botched papers and failing to divulge information.
Also see my continuation of this article — Steven J. Baum Foreclosure Firm Pursued with Same Laws Used to Go After Organized Crime.
In this other post, I reviewed many of the court decisions that have criticized Baum’s practices including the now famous Judge Schack Twilight Zone case.
Written by Craig D. Robins, Esq.Forcing lenders to work out settlements with homeowners in bankruptcy is the subject of a bill that Senator Sheldon Whitehouse (D., R.I.) introduced last week. Today there were hearings on the bill before the Senate Judiciary Committee.
The ideas under the proposed law, which would permit homeowners to modify their mortgages through bankruptcy proceedings, have been tossed around before and at times have been quite controversial.
Mortgage Cram-Down in Bankruptcy is the Bill’s Objective, But In a Voluntary Manner
Previous bills would have given debtors the ability to cram-down first mortgages in bankruptcy cases. However, these bills never made it into law.
Cramming down a mortgage in bankruptcy is not the essence of Senator Whitehouse’s bill; getting the lender to voluntarily agree to it, however, is.
The current bill would give bankruptcy judges the power to require foreclosure mediation between banks and homeowners.
The bill creates a mechanism for judges to supervise talks between homeowners and their lenders. This could address the problem where a homeowner makes a reasonable settlement proposal to the mortgage lender, but the lender or its servicer rejects it — a rather common occurrence.
The Proposed Bill Permitting Bankruptcy Modification Would Help Cut Through the Bureaucratic Red Tape
One of the biggest obstacles in seeking a mortgage modification is the difficulty in getting though to individuals at the lender who have the authority to negotiate terms. Take it from me, this can be a fruitless exercise in frustration.
The proposed bankruptcy modification bill would require that an individual with full settlement authority for the bank must show up for the mediation proceeding. In addition, the bill requires the lender to be open to good-faith negotiations.
Senator Whitehouse believes that court-ordered talks could pressure mortgage servicers to modify mortgages that they wouldn’t otherwise agree to modify.
During the hearings, Senator Whitehouse also criticized the HAMP program which has not succeeded as intended — Something I’ve written about extensively. See Problems with HAMP — Too Many to Count?
Legislative Action is Needed to Curb the Number of Foreclosures
This is now more important than ever as foreclosures are expected to climb to 12 million by the end of 2012 and Long Island will certainly have its fair share of that number..
I’ve also written extensively before about the frustrations in persuading lenders to modify a mortgage. See Why I Won’t Negotiate Loan Modifications and Loan Modification Industry is a “Sham” Says Attorney General Cuomo !
New York Bankruptcy Judge Drain Testifies at Hearing
The New York Bankruptcy Courts in the Southern District have a pilot loss-mitigation program that enables debtors to confer with their mortgagees.
Judge Robert Drain, sitting in the Southern District of New York, testified that half of the mediations that take place in his court end in an agreement which is often a modification. He said that the other half at least give the homeowner a clear understanding for why they are losing their home.
Judge Drain said that such programs are vital to sorting out the foreclosure issue.
Seeking Mortgage Modification in Long Island Bankruptcy Cases
There is currently an underutilized loss-mitigation pilot program here in the Eastern District of New York that has been in existence for just over a year.
I will discuss this program in a future blog post.
Craig D. Robins, Esq. quoted in Boston Globe on Foreclosure Defense Issues
Written by Craig D. Robins, Esq.
Because I’ve been so busy representing clients these past few months, I’ve been a little slow in commenting on some national-level periodicals that have quoted me on various bankruptcy and foreclosure issues.
On November 12, 2010, Rachel Beck, writing for AP in an article that appeared in the Boston Globe and several other newspapers, discussed the recent revelation that many foreclosure cases across the nation were based on robo-signed mortgage documents.
As New York has become a hotbed of cases in which judges have expressed their frustration with mortgage lenders who are reckless with their litigation, she asked for my comments.
Here is the article as it appeared:
By Rachel Beck
AP Business Writer / November 12, 2010
Boston Globe
NEW YORK—It isn’t just Justin Bieber videos or stunning plays in a middle-school football game that are getting attention on YouTube these days. Add to the list a former hotel maid explaining how she signs thousands of mortgage documents a year without a clue to what she’s putting her name on.
“I don’t usually read the docs when I sign,” says Dhurata Doko, an employee of Nationwide Title Clearing, a mortgage services company.
“So it is not part of your job to review the document? Your job is just to sign it?” asks Florida foreclosure defense attorney Christopher Forrest during a videotaped deposition of Doko earlier this month.
“I just look for my name and then sign,” she says.
Robo-signing mortgage document handlers have found their way to YouTube, giving a rare live view into the latest mess to rock the troubled housing industry.
The nation’s foreclosure crisis took a turn six weeks ago when it became clear that banks and processing firms had employees sign court documents that had information that was unverified or even false. The reason — or at least the reason lenders give for the sloppy work — is that they are drowning in foreclosures.
Banks have seized more than 909,000 homes through the first 10 months of the year and are on pace to take back more than 1 million homes this year. Now, foreclosures are being challenged in court because of the allegations of fraudulent documents.
Lenders say that this mess has been overblown. Some paperwork might be flawed, the banks acknowledge, but delinquent borrowers still deserve to lose their homes. The depositions say otherwise.
Doko worked as a maid and assembled electronics before joining Nationwide Title Clearing six years ago. She is one of three NTC employees whose video depositions were posted on YouTube by Forrest as part of a foreclosure case he is handling in Florida.
She and her colleagues tell of signing thousands of mortgage documents a day. One worker estimates signing 5,000 documents a day on average, another says she signs her name every 2 seconds. They acknowledge their signatures differ on certain documents.
The videos show that employees didn’t even know the most basic mortgage terminology. For instance, they don’t know what an “assignment of mortgage” is, even though that is crucial in a foreclosure case because it establishes who the final holder of the loan is.
Doko says she only signs documents as a witness. She says she never signs under the title of vice president. Forrest then shows her a document with her name on it. “Beneath your name it says vice president?” Forrest asks.
“I don’t pay attention to that,” responds Doko, looking uncomfortable as she answers.”
But you do agree with me, beneath your name it says vice president … and above your name it says Financial Freedom Senior Funding Corp. So when you sign this document, do you know whether you are signing as vice president of this company or as a witness?” asks Forrest.
“I just sign my name,” Doko says.
Courts, state financial regulators and attorneys general nationwide are investigating whether lenders violated the law by submitting fraudulent documents, often prepared by robo-signers.
The fact that delinquent borrowers face foreclosure is not the issue, but whether the documents used to get them out of their homes are signed by compromised witnesses, says Kendall Coffey, a former U.S. attorney in Miami and author of the book “Foreclosures in Florida.”
“You still need truthful witnesses. Robo-signers aren’t. They are impostors,” Coffey says.
NTC said in a statement to The Associated Press that its employees had been deposed but criticized the placement of the depositions on the Internet.
“It is unethical to imply that long-standing industry practices, which have been found in court to be legal methods of preparing common mortgage related documents, are somehow harmful to consumers,” NTC said.
The big mortgage lenders have been doing their own investigations regarding the entire foreclosure process. Some, including Bank of America and Ally Financial Inc.’s GMAC Mortgage, have started processing foreclosures again, after calling a temporary halt while they reviewed documents.
The courts will have the ultimate say over what happens next. If judges feel that borrowers have been wronged, they can halt the foreclosure process. An Ohio judge ruled on Tuesday that a state challenge to the validity of lender foreclosure documents will be heard in court early next year in Cleveland.
Attorney Craig Robins of Woodbury, N.Y., says he is already seeing some judges taking a stand.
“Many judges have seen so much sloppy and careless paperwork (from lenders) that they are saying ‘enough is enough’,” says Robins, a foreclosure defense attorney who writes the Long Island Bankruptcy Blog. “They won’t rubber-stamp the foreclosure proceedings.”
As the YouTube videos show, there already has been enough rubber-stamping.
This is what shredded mortgage files look like
Written by Craig D. Robins, Esq.
In the news this week was an interesting convergence between the need to investigate mortgage fraud and the desire to maximize the distribution to creditors of a defunct mortgagee.
I first wrote about American Home Loan Mortgage Company in 2007, which was based on Long Island. At the time they were one of the country’s largest mortgage lenders and they quickly and utterly collapsed as one of the earliest victims of the sub-prime mortgage meltdown. (see: The Sub-Prime Mortgage Meltdown ).
In 2009, I wrote how the CEO of the company had engaged in fraud — Ex-CEO Of American Home Mortgage Settles SEC Fraud Charges .
Now we have an issue of what will happen to the many thousands of sub-prime mortgage files sitting in a storage room of the now-abandoned company’s Melville, Long Island headquarters — a five-minute drive from my Woodbury office.
What Happens to Mortgage Files When a Mortgagee Goes Out of Business?
American Home Loan, which hasn’t operated since it collapsed in 2007, has been in a Chapter 7 bankruptcy liquidation proceeding for several years now. Earlier this week, the operating trustee asked the bankruptcy court for permission to destroy 4,100 boxes of loan documents.
The trustee is arguing that the local fire marshal wants the boxes of mortgage files removed as it is posing a fire hazard. The trustee is also complaining that it will cost too much to move them and that they should instead be destroyed.
Paying to remove the file boxes to a storage facility costs money — money that would have gone to the creditors of American Home Mortgage who filed claims in the bankruptcy proceeding. The cost of having maintained storage of the files was approximately $15,000 a month.
Two years ago, the trustee had made a similar request which was approved, and several thousand boxes were destroyed at that time after banks and other loan servicers had been given a chance to pick up the files but neglected to do so.
Now there are 4,100 boxes left. My guess is that each box contains 20 files, meaning that the boxes contain the records of nearly 80,000 sub-prime mortgages.
Is Evidence of Mortgage Fraud Being Destroyed by Destroying the Mortgage Files?
Since the earlier batch of files was destroyed, the subject of mortgage fraud has risen to become major headline news.
The robo-signing scandal only became national news this past October when it was revealed that incredible numbers of original mortgage documents were missing and new documents were created for the purpose of bringing foreclosure proceedings. See: New Forelosure Law in New York Requires Attorneys to Verify Foreclosure Papers .
That led the attorneys general in all 50 states to immediately begin investigations into foreclosure procedures, improper mortgage assignments, and all sorts of other mortgage document deficiencies.
Also in the past few months, we have seen massive amounts of evidence turning up all around the country showing that original mortgage loan documents were never transferred as required when the mortgages were securitized and sold to investors.
Now, these ever-so important mortgage files are about to be destroyed. Yesterday the Delaware Bankruptcy Court approved the trustee’s document destruction request.
However, a Legal Aid Society attorney, who also appeared in the proceeding, was successful in requiring the trustee to set aside several hundred of the storage boxes which may contain records still relevant to some pending foreclosures.
She argued that many low income homeowners were victims of deception about how much their mortgage loans would cost, and that the original mortgage files could contain evidence that they had been defrauded. This is another concept I previously wrote about in The Sub-Prime Mortgage Meltdown .
Who Benefits When Mortgage Files Are Destroyed?
As I mentioned, the creditors of the defunct mortgage company stand to receive a (very slightly) larger distribution.
But what about the hapless homeowners who are defending foreclosure proceedings? Perhaps this could be good news for them. Judges are becoming more and more willing to toss out foreclosure suits when the mortgagee is unable to produce various original mortgage documents.
The defense du jour is “show me the note!” A series of recent decisions in foreclosure cases emphasizes the importance of producing original loan documents, holding that they are essential for investors to prove ownership of the mortgages and that the have the right, known as “standing'” to pursue foreclosure. This is something I wrote about a year ago: Mortgage Companies Entitlement to Bring Foreclosure Proceedings: Prove It or Lose It .
If a mortgage which was originated by American Home Mortgage is foreclosed upon (and many tens of thousands are in the foreclosure process now), then it may become easier for the homeowner to defend if the current mortgagee is unable to adequately produce sufficient paperwork.
On the other hand, such document destruction can be the equivalent of a get-out-of-jail card for those business executives in the mortgage industry who took illegal shortcuts. Destroying thousands of files means that valuable evidence that can be used in criminal investigations will be forever gone.
The wholesale destruction of mortgage files has become big news in several other areas of the country this week. A Bankruptcy Judge temporarily blocked the trustee of sub-prime lender Mortgage Lenders Network USA from destroying 18,000 boxes of original loan files after federal prosecutors pleaded that they may be needed as evidence in more than 50 criminal investigations.
Written by Craig D. Robins, Esq.Being in Foreclosure is Bad Enough but Don’t Compound Problems by Damaging House in Retaliation
Public sentiment these days is that mortgage banks are evil for bringing so many foreclosure proceedings against suffering homeowners in a difficult economic climate, especially when there are frequent headlines about lenders engaging in shoddy and improper foreclosure tactics.
So whether justified or not, many homeowners are angry that the big banks are seeking to foreclose on their homes when times are tough. Some of these angry homeowners want to “get back” at the bank. However, if you are a homeowner in a foreclosure situation, be careful how you vent that anger.
Foreclosure Rage Becoming More Prevalent
There are numerous stories of homeowners in foreclosure who have intentionally damaged their homes upon moving in an effort to punish the bank — something we can call “foreclosure rage.”
Some homeowners are taking out their frustration on the lender in an effort to get even by vandalizing their own home.
While it is usually acceptable to take items of reasonable value, such as appliances, others, in an act of foreclosure rage, totally gut the home, strip it of almost everything, including flooring and plumbing, and then maliciously inflict serious damage by destroying walls, pouring cement down the toilet, creating floods by leaving the water on, and exposing the house to the elements and vermin by removing windows and doors.
However, as one recent case shows, the immediate emotional relief that damaging the house brought was certainly not worth it.
One Homeowner Goes on the Foreclosure Rage Rampage
A homeowner who went on the war path against the mortgagee in a fit of foreclosure rage recently paid the price.
Michael Zahniser of Illinois had just been served with foreclosure papers. The next day he removed the back door of his house and stripped the interior. He also removed cabinets, countertops, doors, light fixtures, gutters, pieces of siding, and tile floors. He left the house with no door and a gaping hole in the wall.
He subsequently filed a Chapter 7 bankruptcy to eliminate any obligation on the mortgage deficiency, and presumably to eliminate other obligations like credit card debt.
The mortgage lender, Byron Bank, was not amused and brought an adversary proceeding in bankruptcy court arguing that Mr. Zahniser should not be able to discharge his obligation to the bank under Bankruptcy Code section 523(a)(6). That section provides that debtors who willfully and maliciously injure someone’s property cannot escape liability for doing so.
Last month, the bankruptcy court found that the bank proved that the debtor intended to cause injury to the bank’s interest in the house and that the debtor acted willfully and maliciously.
The bankruptcy court also determined that the items that the debtor took and the state that he left the house in demonstrated that he was not merely trying to collect what would have been valuable for himself, but rather, that he was trying to deny value to the mortgage bank.
In determining what part of the bank’s deficiency claim should be non-dischargeable, the court ascertained the amount necessary to rehabilitate the house, and that amount was $50,000. The court also added $19,000 in attorney’s fees to that. The case is Byron Bank v. Zahniser, 2010 Bankr. LEXIS 4623 (Bankr. N.D.Ill, December 13, 2010).
In some ways the homeowner here was lucky. The bank sought to have the entire deficiency held non-dischargeable. However, the court only permitted that part which was caused by the malicious injury to be non-dischargeable.
Almost all mortgages have boiler plate language that prevents a homeowner from engaging in this type of conduct. If you are a homeowner in foreclosure, think twice as to how you should vent your frustration and anger against the bank.
Today's NY Times Cover. The story is the first article on the upper left.
One of the biggest news stories of the past three months has centered around the flood of foreclosure cases which have exposed the shoddy practices of foreclosing lenders and the attorneys who represent them.
Today, in a New York Times front-page story, “Judges Berate Bank Lawyers in Foreclosures,” reporter James Schwartz wrote about how judges are looking ever more critically at home foreclosures, especially here in New York.
This is an issue that I’ve covered repeatedly in my blog over the past year. For example, see: Judge Cancels Mortgage Due to Mortgagee’s Shocking Behavior in Long Island Foreclosure Action and my post Has Steven J. Baum, P.C. Served You with Foreclosure Papers?
Also, in today’s New York Times article, it was reported how judges have accused lenders’ attorneys of processing shoddy or even fabricated paperwork in foreclosure actions.
Here in New York, the mortgage litigation mess grew so severe that our Chief Judge adopted new court rules requiring attorneys to verify the information in foreclosure cases, which I addressed in New Forelosure Law in New York Requires Attorneys to Verify Foreclosure Papers .
The article mentioned one of my foreclosure defense clients, Sunny D. Eng, who we successfully defended in a Suffolk County Supreme Court foreclosure case brought by Wells Fargo. In that case, which I will discuss in greater detail in a follow-up post, we were able to persuade the court to dismiss the entire foreclosure action.
Written by Craig D. Robins, Esq.We’ve all seen the news inundated with stories these past two weeks about the widespread problems with the foreclosure process, not only here in New York, but across the country.
Now, New York’s Chief Judge, Jonathan Lippman, essentially said “enough is enough” with the sloppy and often incorrect papers that many foreclosure attorneys are filing on behalf of their mortgage and banking industry clients.
This week he imposed a new court rule directing attorneys for mortgage lenders to take certain steps to make sure the papers they file are accurate. Effective immediately, foreclosure attorneys must engage in due diligence to verify the information contained in the documents that they file in foreclosure cases in New York.
This new verification requirement is a court rule as opposed to a law promulgated by the legislature, and lawyers can be severely sanctioned for non-compliance.
The National Crisis of Robo-Signed Foreclosure Papers Has Led to New Court Rule
Apparently Judge Lippman has become appalled at the number of banks who have employees signing thousands of mortgage foreclosure documents a day — a feat that is physically impossible to do without reviewing them for accuracy.
Articles about the robo-signers have been front-page news lately as we have learned that a great number of homeowners have lost their homes because the banks submitted incorrect, backdated, or downright fraudulent documents to the courts.
New Foreclosure Verification Law May Have Profound Impact On Foreclosure Process
For years, many foreclosure attorneys and their mortgagee clients have been playing fast and loose with foreclosure paperwork. In my Long Island foreclosure defense practice, we have routinely come across backdated assignments and related mortgage documents. In the past, when we brought these irregularities to the attention of the court as a foreclosure defense, the court would, at most, dismiss the case.
Now, however, under this new law, bank attorneys will be much more hesitant to submit clearly erroneous or improper papers as they will now face serious sanctions for being a party to a fraud.
What Does the New Foreclosure Verification Rule Mean to the Homeowner Facing Foreclosure?
The new law will force foreclosure attorneys to think twice before blindly submitting foreclosure documents to the court. As a result, the entire foreclosure process in New York will be slowed down until the bank’s attorneys become more equipped to fulfill their due diligence requirements.
This will be a win for the homeowner in several respects:
1. The new law will delay the inevitable foreclosure proceeding by a period that could be weeks or months, giving homeowners in foreclosure more time before they have to eventually leave their homes.
2. Innocent homeowners will be safeguarded, at least to a certain degree, from banks who previously abused the foreclosure system by taking illegal shortcuts.
3. Foreclosure defense attorneys such as myself, may have an easier time resolving some contested issues with bank’s attorneys as the new law will give us leverage in personally calling the bank’s attorneys to task when irregularities are found. This is because the foreclosure verification requirement imposes a continuing duty on counsel. Thus, if they later learn that a previously-submitted document is false or inaccurate, they must then immediately take corrective action.
4. Thousands of homeowners who are in default will be in a better position to have their rights safeguarded, now that the court is looking after their interests as well.
It’s About Time Steps Are Imposed Against Mortgage Banks and Their Attorneys for Playing Fast and Loose
I personally think it’s about time the court system imposed some reasonable standards on attorneys for banks and lenders.
The practice of robo-signing documents is certainly unfair to homeowners. Now bank attorneys will not be able to so easily submit robo-signed documents to the court, as they will be required to verify the information they contain.
Homeowners In Foreclosure Will Not Be Protected Automatically
Consumers who have defaulted on their mortgages and find themselves in foreclosure should not assume for one minute that the this rule, by itself, will stop the foreclosure or enable them to assert their rights.
Homeowners should continue to consult with a foreclosure defense attorney to discuss their rights and learn about steps that can be taken to protect their home. Click here to see a number of other posts on my blog about New York foreclosure defense information.
Written by Craig D. Robins, Esq.The Rosicki Law Firm is another foreclosure law factory and becoming quite a giant here in New York
Rosicki, Rosicki and Associates is another “Foreclosure Factory” on Long Island that brings foreclosure law suits against many thousands of homeowners each year.
I recently wrote about New York’s largest foreclosure law firm, Steven J. Baum, P.C. that brought an incredible 12,000 foreclosure lawsuits last year. I will now talk about the firm that is number two: Rosicki, Rosicki and Associates. They are located in Plainview, which is fairly close to my Woodbury bankruptcy law office.
I know them fairly well, having dealt with them regularly in the course of my consumer bankruptcy practice and also in various matters where my firm engages in foreclosure defense. I also regularly see their attorneys in court and at continuing legal education seminars.
I don’t have the actual filing figures for the Rosicki Law Firm, but they claim to be the leading mortgage banking law firm in New York. They also claim to be the largest single law firm in New York State in the combined areas of foreclosure, bankruptcy, evictions, closings and outsourcing.
Is Rosicki, Rosicki and Associates a Reputable Foreclosure Law Firm?
A major part of my detailed review of the Steven J. Baum law firm was the fact that there were a multitude of complaints against them and that this law firm did not seem to enjoy the best reputation.
However, my opinion of the Rosicki Law Firm is much different. Although from my perspective — which is to protect consumers and homeowners — they are considered the “evil bad guys,” because they bring foreclosure proceedings — the fact remains that someone has to do the job of representing mortgagees in foreclosure suits, and I think they do a fairly respectable job of that.
Many other foreclosure firms seem shrouded in a cloud of negative publicity, and there are a great many foreclosure firms that have been sanctioned for engaging in frivolous or improper litigation. However, there appears to be a dearth of negative information and cases about the Rosicki firm. For that reason, and based on my personal dealings on my firm’s cases with their firm’s attorneys, I can only conclude that they are a respectable and reputable foreclosure law office.
My Biggest Victory Against a Mortgagee for Frivolous Litigation Was Against a Mortgagee Represented by the Rosicki Firm
Several years ago the Rosicki Firm represented a mortgagee, Bayview Financial, whose prior counsel filed a grossly improper motion for relief from the stay in a Chapter 13 Bankruptcy case in which I represented the debtor.
That motion for relief indicated that the debtor had failed to pay his real estate taxes, which was not true. After I brought a counter-motion for sanctions, Rosicki immediately withdrew the motion for relief. Thereafter I negotiated a settlement in which Rosicki’s client, Bayview Financial, paid an award to my client worth in excess of $30,000. I reported this situation at length in my post: Litigating Against Abusive Mortgagees. Your Columnist Scores Big Win Against Mortgagee Who Filed Frivolous Motion .
I should note that the Rosicki firm was not the firm that filed the frivolous motion, but that they took over representing the mortgagee after prior counsel filed it. I litigated this case for a number of months with several attorneys in the Rosicki firm and found all of them to be very courteous, civil and professional
Rosicki Firm Gets Into Trouble Over Wells Fargo Mortgage Foreclosure Brought Without Standing
In 2008, the Rosicki firm brought a typical mortgage foreclosure action against a Brooklyn homeowner who had a Wells Fargo mortgage (Wells Fargo Bank, N.A. v. John Reyes).
In that case, Kings County Supreme Court Judge Arthur M. Schack conducted his own search of New York City real estate records (ACRIS) and discovered that Wells Fargo never owned the mortgage.
Here’s the law: If a mortgagee does not officially own the mortgage, then they do not have standing to bring a foreclosure proceeding. Lack of standing is a major mortgage foreclosure defense that I frequently use in my Long Island foreclosure defense practice. For more info see: Mortgage Companies Entitlement to Bring Foreclosure Proceedings: Prove It or Lose It .
Consequently, Judge Schack, in what can be considered a blistering opinion, denied the foreclosure and even set a hearing as to why Rosicki attorney Mary McLoughlin shouldn’t be sanctioned for filing a frivolous foreclosure case.
History of Rosicki, Rosicki & AssociatesThe Rosicki firm is driven by the husband and wife team of Cynthia Rosicki and Thomas Rosicki who, to me, do not seem to be your typical foreclosure lawyers. They are a very ambitious “power house” couple extremely involved in public service. They are also vintners who own a Long Island winery.
What is unusual about the Rosickis is their zealous dedication to be so active in community-based public service and participate in many community organizations, fund-raisers and not-for-profit organizations. They seem to regularly win service awards and be honored for their humanitarian efforts.
The Rosickis met at a debutante ball in 1987. Tom proposed to Cynthia just two months later.
At the time, Cynthia had a small Brooklyn practice and Tom was not even an attorney. That led him to enroll in Yeshiva University’s Benjamin Cardozo School of Law, although he subsequently transferred to Touro University School of Law.
The firm initially emphasized mortgagee representation and apparently grew and grew to point where the firm now has about 500 employees.
The Rosickis make it a policy to employ those with handicaps and disabilities and approximately 10 percent of their law firm employees are disabled.
The Rosicki Firm has Five Partners
In addition to Cynthia and Tom Rosicki, there is Kelly Ann Poole, Cynthia Nierer and Craig Wolfson.
Rosicki Law Firm Contact Information
The firm’s main office is at 51 East Bethpage Road, Plainview, NY 11803. Phone (516) 741-2585. They also have additional offices in Fishkill and Batavia New York.
Some Interesting Info About the People Who Are Suing You: Bio of Tom Rosicki
Tom is a graduate of Chaminade High School, here in Mineola; Duke University, where he majored in management science and accounting; and Touro Law School. Right after college, Tom owned a fast-food Chick-Fil-A store in Cherry Hill, New Jersey.
Then, from 1982 to 1989, he became an FBI special agent concentrating in their organized crime division. Mayor Koch noticed his investigation of corruption at the South Street Seaport and then offered him a job as Deputy Commissioner of the New York City Taxi and Limosine Commission.
From there he took a position as vice president director of security for Macy’s where he was in charge of security for 59 stores as well as the Thanksgiving Day Parade.
Tom has been president of the Board of the Association for the Help of Retarded Children for a number of years. He is also involved in a number of other community-minded charitable organizations.
The Other Half: Cynthia Rosicki
Cynthia attended Adelphi University, graduating in 1982 with a degree in drama and political science (maiden name — Cythia Senko). There she acted as a theatre manager in the Calderon Theatre and acted in performances as well.
Cynthia Rosicki then went on to New York Law School, graduating in 1986.
In the late 1980s, Cynthis Rosicki got her start with mortgage law working for a mortgage foreclosure firm. She then went out on her own, opening a small law office in Williamsburg, Brooklyn, in the front office of her parent’s funeral home.
Cynthia is on the Board of Directors of the Kosciuszko Foundation and the Association for the Help of Retarded Children (AHRC). She is also active in the organization’s “Gift of Life” and “Help the Homeless.”
The Rosickis reside in Nassau County in Muttontown.
Political Affiliation
One can wonder if they are Republican or Democrat. Cynthia was previously named New York State Businesswoman of the Year by the National Republican Congressional Committee. Tom was hired by the very Democratic Mayor Koch.
I previously wrote a column about how creditors and mortgagees tend to be pro-Republican, and those in favor of bankruptcy and consumer rights tend to be Democrat: Being Haunted by the Vampire Bankruptcy Bill: It’s Just Politics .
Are You Getting Drunk by the People Who Are Trying to Foreclose Your Home?
The Rosickis have done very well financially, enabling them to purchase an 12 acre summer home and vineyard in Southold, Long Island. With a vineyard in the backyard, they founded Sparkling Pointe Winery in 2003. They have since tripled its size.
What kind of wine do these foreclosing attorneys make? Champagne, of course. Technically, Champagne is the sparkling wine made in the Champagne region of France. In New York and elsewhere it is called sparkling wine.
The wine actually won a top honors award. Their 2000 Brut Seduction received top prize in its category at the world-class 2009 San Francisco Chronicle Wine Competition.
One can only wonder if Tom and Cynthia break open a bottle of the bubbly and toast each successful foreclosure. Perhaps they should send a bottle of bubbly to the poor, foreclosed-upon homeowner as a consolation.
What Can You Do If You Are In Foreclosure?
In assisting clients with Long Island mortgage foreclosure defense, we routinely come across situations where the paperwork submitted by the foreclosing bank is not in order.
However homeowners have rights afforded by the law. A bank cannot foreclose unless they do it the right way and all of their papers were prepared properly. If they are not, then the homeowner has a meritorious defense to the foreclosure action.
Even if the bank eventually corrects the problems, a homeowner can usually add many additional months or years to the time that they can stay in their home. It therefore pays to meet with an experienced Long Island foreclosure defense attorney.
Dozens of Articles About Foreclosure Defense Are On This Blog
I have written many, many articles and posts about foreclosure defense on my blog.
Just click here Information About Foreclosure Defense to see them. For example, Many New York Foreclosure Suits Are Dismissed Because They Are Defective .
Written by Craig D. Robins, Esq.A person’s house is usually their most valuable asset. Understandably, one of the first questions my homeowner-clients ask me is “How will filing bankruptcy affect my home?”
Foreclosures and Collections Are Stopped Cold
The first thing you should know is that as soon as your petition is filed, the automatic bankruptcy stay kicks in.
This means that if you were behind with your mortgage, it now becomes against federal law for the mortgagee to continue any foreclosure proceeding.
If the House is Exempt, There Is No Problem Keeping It
Every state has a homestead exemption statute that sets forth how much equity you can keep in your home, while eliminating debts in a Chapter 7 bankruptcy case. In some states, the homestead exemption is based on federal law.
In New York, the homestead exemption is $50,000 per person. This is based on New York State law. See: Bankruptcy Exemptions in New York .
A husband and wife who file jointly can pool that homestead exemption and protect a total of $100,000 worth of equity. Sometimes Bankruptcy Exemptions Can Be Doubled .
If the House Has a Great Deal of Equity, You Can Still Keep It
Even if there is more than $50,000 of equity per person, then you can still keep you house if you file a Chapter 13 payment plan bankruptcy.
In such cases, the total amount you will have to pay back to your creditors through the plan, which is usually over a period of 60 months, must be at least equal to the amount of unprotected equity.
Sometimes deciding whether to keep a home or not can be a difficult decision.
If You Can’t Afford Your Mortgage or You Do Not Want to Continue Paying Your Mortgage You Can Walk Away (Eventually)
If you can no longer afford to keep your home and you have little or no equity in the home, then you may want to file for Chapter 7 bankruptcy in which case you can walk away from your obligation without any financial recourse from the lender. See: Strategic Mortgage Defaults Increasing .
In such cases, the lender still has the right to eventually foreclose on the home and take it back, but that can take an extended period of time during which you can continue to reside in the house without making any payments. Bankruptcy Can Provide Way Out of Bad, Highly-Leveraged Real Estate.
When the lender eventually does take the property back, it cannot pursue you for any deficiency amount. This is because the bankruptcy had the effect of discharging that debt. One-Fourth of All U.S. Homeowners Are Underwater. What Should These Homeowners Do?
Filing for Chapter 7 When There Is Substantial Unprotected Equity in the House
It is extremely rare that we recommend to a bankruptcy client that they file for Chapter 7 bankruptcy if they have a great deal of unprotected equity in their home. Usually we recommend that they try to sell their home first.
However, we do see situations in bankruptcy court where a homeowner with substantial equity files for bankruptcy. In such cases, the Chapter 7 trustee will seek to sell the home. However, the trustee must pay the debtor the amount of the homestead exemption from the proceeds, which would be $50,000 per person.
If You Have Real Estate and Need Bankruptcy Relief, You Should Consult With Experienced Bankruptcy Counsel
Protecting real estate in bankruptcy can be tricky and must be done the right way. When it comes to houses and homes, there are often many options when dealing with problematic debt situations.
It therefore makes sense to consult with a qualified and experienced Long Island bankruptcy attorney.
Written by Craig D. Robins, Esq.
I am currently in San Francisco where I just attended the annual convention of the National Association of Consumer Bankruptcy Attorneys (NACBA). I write this report from there on May 1, 2010.
[Note: this article was previously published in the May 2010 edition of the Suffolk Lawyer].
[I will soon post a number of photos that I took at the NACBA convention}
Many years ago I discovered how exciting it is to travel across the country to interact with fellow bankruptcy practitioners and learn the latest about strategies for protecting consumer bankruptcy debtors, and tips for running a bankruptcy law office.
Over the course of three days, some of the country’s leading bankruptcy attorneys as well as a number of bankruptcy judges, provide valuable insight at daily programs and seminars.
What I find just as important is trading notes and war stories with other bankruptcy attorneys from across the country and learning about new products and services at the accompanying trade show.
Here Are Some Highlights of the Bankruptcy Convention
New Trend in Interpreting the Means Test
In a half-day program which addressed the means test, the speakers concluded that both the United States Trustee and our country’s bankruptcy judges have become more lenient in interpreting the means test in Chapter 7 cases. There are three reasons for this trend.
Apparently, the current recessionary climate and sentiment against large banking institutions is resulting in the U.S. Trustee bringing fewer Section 707 motions alleging that the debtor filed an abusive case.
In addition, more and more debtors are providing information to the U.S. Trustee’s office in cases where there are means test issues. This enables the U.S. Trustee to evaluate the issue of abuse and reach a conclusion that the U.S. Trustee should not object.
Finally, there seems to be a greater number of experienced bankruptcy attorneys who know what red flags to look out for and consequently these experienced attorneys refrain from filing abusive cases.
Wide-Spread Concern Over Bankruptcy Judge Salaries
Judicial salaries are relatively low. It appears that we are losing a large number of bankruptcy judges because the level of judicial pay is so low. When there is a vacancy on the bench, this causes the bankruptcy court’s entire case load to slow down, which means unhappiness and dissatisfaction to litigants and all others involved.
This was indeed the case just two three years ago here, in the Eastern District of New York. Our Chief Bankruptcy Judge for the district, Hon. Melanie L. Cyganowski, left the bench to pursue a much more profitable position as a partner in a leading bankruptcy firm.
I interviewed Judge Cyganowski at that time and she clearly indicated that her reason for leaving the bench was because of her unreasonably low judicial salary. See: Chief Bankruptcy Judge Melanie Cyganowski Stepping Down.
HAMP Bankruptcy Update
There was ample discussion about President Obama’s Home Affordable Modification Program (HAMP) which seems to be rife with problems as an unusually small percentage of homeowners actually get permanent relief.
Here’s why:
a) there is a major lack of communication on the part of the lender;
b) lenders are continuing to threaten homeowners with foreclosure even as the lender is evaluating the homeowner for a modification, and even if the homeowner has been approved for a trial term; and
c) lenders are arbitrary in granting relief.
On a positive note, however, a new law is going into effect on June 1, 2010 that, among other things, makes it illegal for a lender to discriminate against a bankruptcy debtor because he or she is in the HAMP program.
The new law will also provide certain protections to Chapter 13 debtors as mortgagees will be precluded from objecting to discharge.
Lower Prices for Credit Counseling
When the 2005 Bankruptcy Amendment Act first went into effect in 2005, there were only four approved credit counseling agencies in our jurisdiction (E.D.N.Y.), and they all charged the same rate – $50 per credit counseling session.
There must have been about 20 credit counseling companies exhibiting at the trade show and many now charge fees as low as $15 per session.
In addition, they gave out so much shwag that my ten-year-old son, Max, will be delighted to receive from me upon my return a large number of squeeze toys, flashlights, keychains, fancy chocolates, playing cards, puzzles, T-shirts and what-not that I picked up from these exhibitors.
My hard-working office staff will also be the recipient of a good deal of this booty.
Emerging Technologies for Consumer Bankruptcy Practices
One of the most crowded exhibitor booths belonged to a OTB, an company that created BK Express, a comprehensive practice management system which is designed for consumer bankruptcy attorneys.
I actually just set up my office to use this software which is basically a special shell designed to work on top of LexisNexis’s Time Matters system.
Problems with MERS Mortgages and Foreclosure Defenses
In a very dynamic session, we were told that 50% of all residential mortgages in this country are nominally owned by MERS, which is Mortgage Electronic Registration Systems, a privately held company that operates an electronic registry designed to track servicing rights and ownership of mortgage loans in the United States.
The problem with MERS-recorded mortgages is that MERS really does not own the mortgage, thereby creating an interesting argument that MERS does not have any standing in bankruptcy court.
I previously wrote about special defenses that a homeowner can assert to defend a foreclosure action involving a MERS mortgage. See: A New Powerful Mortgage Foreclosure Defense — Compliments of MERS.
If your client has a MERS mortgage, consider looking at the pooling and service agreement to make sure that there was a true and valid assignment at every link of the chain, including delivery and acceptance of assignment documents. If there was not, you may have a good objection to a MERS proof of claim or motion to lift the stay.
Few Bankruptcy Attorneys From New York
I was rather surprised the very small turn-out from our state. Out of about 1,600 bankruptcy attorneys who attended the convention, there must have been fewer than 20 from New York, and only one other member, I believe, from the Suffolk County Bar Association. That was Allison Shields, who was actually one of the speakers – she spoke on managing a successful bankruptcy practice.