One of the most important decisions to make when purchasing a home is the type of mortgage to obtain.
A fixed rate mortgage is one where the interest rate remains the same throughout the entire life of the loan, until it is fully paid off.
Prior to the age of the internet, specific information about real estate, such as who owned the property, what mortgages were attached to it and what taxes were owed, could only be obtained by physically examining the County Clerk's records. While this could be done by an attorney or even a lay person, few had the requisite expertise or time to do so and typically a title insurance company would be paid a fee to conduct a search and prepare a report containing the information required.
Prior to 2008, a New York foreclosure would be completed in a year or less. While Loss Mitigation existed, it was not a formal process as it is today, it's something that Servicers did throughout the foreclosure process. This process, known as “Dual Tracking”, was intended to avoid delays in the foreclosure process should the Loss Mitigation efforts fail, but is now prohibited by the Dodd–Frank Wall Street Reform and Consumer Protection Act. Read about it by clicking into our previous article.
Due-on-Sale Clause
The Due-on-Sale clause contained in most mortgages provides that if the property secured by the mortgage is sold to a third party without the lender's consent, the lender has the right to demand full payment of the loan. Lenders require this so that any prospective purchaser will feel compelled to submit a complete application to them, in order to avoid the risk of a foreclosure based upon the default of failing to obtain the lender’s consent. The application will contain the purchaser’s employment, income and all other information the lender would obtain if the purchaser was applying for a new loan. If the bank is satisfied with the creditworthiness of the purchaser, they will consent to the sale.
Failure to strictly comply with two of New York’s recently enacted consumer protection statutes affecting residential foreclosures, RPAPL 1304 and RPAPL 1306, which require a 90-day notice to be sent to the borrower, and specific information contained therein to be filed with the New York State Department of Finance within three days thereafter, have recently been reviewed and interpreted by the New York courts.
Commencing a foreclosure in New York State is far different from commencing other types of litigation.
The Fair Debt Collection Practices Act (FDCPA), codified in 15 USC, section 1692, is a federal statute which was enacted to protect consumers from abusive, unfair or deceptive practices by debt collectors.
Prior to the “modern era” where mortgages were “securitized,” the original Note and Mortgage typically remained in the possession of the “local bank” that originated the loan, and the bank collected and retained the loan payments.
Adverse possession is a long-standing doctrine which can be used to acquire title or other property rights to a parcel of land regardless of record title to the premises.
When you finance the purchase of a house, Lenders will usually insist that you provide their attorney with a survey of the property to be purchased. A survey is simply a drawing to scale of the property's boundaries and the structures built on the land, including the house, garages, swimming pools, fences, etc. and will ensure, amongst other things, that your structure or fences do not encroach on a neighbor’s property, and that theirs do not encroach on yours.
