Guidance for Lawyers & Homeowners at NY Foreclosure Settlement Conferences

Part of the publication materials for Queens County Bar Association Volunteer Lawyers Project March 9, 2013 seminar on ‘Representing Homeowner in Foreclosure Settlement Conferences’

a.Court Attorney-Referee Lance Evans and Chief Clerk Tracy Catapano-Fox preside over the foreclosure part in room 42A

i.Very large calendar call – come early as possible to allow for your case to get conferenced earlier

b.Familiarize yourself with Part Rules (available online)

i.Only residential actions subject to foreclosure legislation and/or CLPR 3408

ii.The part is strictly limited to settlement discussions on loan modification

a.Review Homeowner Intake Packet

i.Please review the homeowner’s information to understand the unique needs of the particular homeowner

ii.Meet with Homeowner Prior to Conference Date

1.Please call them and schedule an in person meeting with the homeowner. Understand that some of them may not be able to meet during regular business hours of 9-5pm so please try to accommodate them

Notice of Appearance and Demand for All Papers Served
i.Immediately serve (and if possible file) Notice of Appearance if none exists upon Lender’s attorneys

As Attorney of Record, this will allow you to access all the documents previously served upon the other party
Contact Lenders’ Attorneys
i.Law firms have a loss mitigation department that manages all the firm’s foreclosure cases represent most Lenders. Find the specific contact person that handles the file (most likely a specific paralegal) who then passes the information to the lenders underwriters. Specific fax and email address where documents have to be submitted

Attorneys who show up to court often times have information passed onto them from their loss mitigation departments
Don’t be surprised if you see a different attorney show up each time your case is conferenced
ii.Obtain the Lender’s specific loan modification packet

The “HAMP” packet is accepted but each lender has their specific workout packet they want the homeowner to complete
Have homeowner considered for both HAMP and traditional ‘in-house’ modifications
Obtaining the lender’s specific loan modification application allows you to understand all the different types of documents the homeowner will have to provide and you can instruct them to bring it to your first meeting.
d.First Meeting with Homeowner

i.Call to remind them of the meeting

1.Many homeowners are eager to come meet an attorney that is willing to help them

2.If you have gotten the lender’s specific loan mod packet, inform the homeowner of what documents they will have to bring prior to your meeting

ii.Discuss Financial Situation: Why did the homeowner fall behind their mortgage payments? Was it temporary or is it something long term? All this is necessary for hardship letter/affidavit that will eventually have to be prepared.

1.Are they self-employed or W2 employee? What is gross household income – anyone contributing to house expenses; any rental income; any money coming from child support obligations, social security or disability, etc?

2.Note: Please make sure these are homeowners who have this property as their primary residence. If you suspect otherwise, immediately discuss the basis for your belief with QVLP staff.

iii.General Financial Documents Required: all correspondence from the lender regarding defendant’s past due status; pay stubs for the past thirty (30) days; W2’s/tax returns for the past two years; proof of any other income such as alimony, child support and/or disability; lease(s) for tenant(s); 2 months bank statements of all accounts; monthly statements for bills/expenses currently being paid (i.e. credit cards or car payment); recent property tax statement; and a recent credit report. Scan all these documents for your records

iv.Begin completing Loan Modification Packet

1.Have as much of the loan modification packet completed and submitted (via fax or email) to the lender’s attorneys prior to the first conference

Pre-Conference
i.Immediately check with the Court attorney handling the part’s calendar and provide him/her with a copy of your Notice of Appearance if necessary

ii.Ask Court attorney with calendar whether lender’s attorneys have checked in and if possible can they point them out (remember the attorneys from the lender’s firm will change so don’t expect to see same face each time)

Pre-Conference Negotiations with Lender’s Attorney
i.Immediately ask them if they have received your faxed/emailed documents for the loan modification packet?

Have fax/email confirmation printouts showing you sent documents on certain date.
ii.Find out what additional documents are necessary or what documents need to be re-submitted

Expired/stale documents – pay stubs, bank statements, etc. need to be most recent and some documents need to a recent date on signature page
Conference with Presiding Referee or Court Attorney
i.Have the lender’s attorney acknowledge the date all documents previously received

ii.The Referee or Court Attorney will inquire as to what documents are still outstanding and how much time you need to submit them to the lender

iii.Remember the HAMP Guidelines require the lender acknowledging completeness of a submitted HAMP loan modification package

Ask Presiding Referee or Court Attorney that the opposing law firm inform you by a certain date that they have received all documents as part of the loan modification packet or need additional documents
iv.Post-Conference Negotiations with Lender’s Attorney

Actual conference will last only 5-10 minutes so after the conference, confirm with the opposition counsel all documents needed and the email/fax number to send the documents
Discuss any other complications or issues that need to be resolved (i.e. tenant not cooperating in giving lease agreement or child support payments not being paid)

Homeowners facing foreclosure: Understand their fears and concerns by listening to what they have to say
i.Many of all them have never dealt with a lawyer and for many, this may be the first time they are in a Courthouse

ii.Explain that the settlement conference part is about finding a workable solution to help them keep their house this keeps them invested in complying with the document requests

Please call them to inform them about progress on the case or what other documents you need from them

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