Court Pre-Foreclosure Notices
Court Pre-Foreclosure NoticesTimothy Walker has one message for all the homeowners facing foreclosure in Western New York: If you get a letter inviting you to come to court, don’t be afraid. Just show up. Walker, acting Supreme Court justice, oversees the state-mandated settlement conferences locally that are designed to bring defaulting homeowners and lenders together one last time to find a solution before ordering a foreclosure sale. His job at these one-on-one meetings isn’t to take away someone’s house. Rather, his mission is to encourage both sides to sit down and make every effort to keep borrowers in their homes.

Since the process began, Walker and his staff have convened more than 341 meetings, with nearly 100 homes saved from foreclosure by getting lenders to modify loans to make them affordable. That’s about three times the success rate downstate.

“It’s communication,” he said. “If you can get the lines of communication open and flowing, most of these can work out. It makes more sense to keep people in their houses.”

But he and legal aid advocates are finding one big challenge: despite sending personal letters from the court to every homeowner whose home enters the foreclosure process, they can’t get most of the borrowers to even come for the court-mediated meetings.

In many cases, Walker and advocates say, the borrowers don’t understand the new process, and fear the court will take away their home.

Indeed, some borrowers who do attend even bring their house keys to hand over before they are reassured. Others call or arrive in tears until Walker’s secretary calms them.

“People are just still afraid,” said Marissa Villeda, an attorney with Western New York Law Center.

Many don’t even open the envelopes once they see it’s from the court. As a result, Walker and advocates say, homes that could be saved wind up on the block.

Walker’s task is part of the broader federal, state and even local attempts to address the rampant national foreclosure crisis caused by aggressive and inappropriate mortgage lending and lax controls.

The problems started with subprime loans — high-rate, high-cost loans traditionally reserved for borrowers with bad credit — and adjustable-rate loans with very low teaser rates that quickly surged after two or three years. But as the crisis morphed into a full-blown recession, with heavy job losses, the mortgage trouble spread to even prime borrowers with good credit.

According to a report by the nonprofit Center for Responsible Lending in North Carolina, more than 239,000 New Yorkers were late on mortgages as of June 2009, especially downstate, and a similar number of foreclosures are expected by 2012. Erie, Niagara and Monroe counties accounted for more than 10 percent of all foreclosure filings in the state.

Nationwide, nearly one in 10 homeowners with mortgages was late in payments in the third quarter — a record high — while 4.47 percent of loans were in foreclosure, according to the Mortgage Bankers Association.

The federal government and many states have responded with an array of programs designed to forestall further problems. Much of the focus has centered on encouraging lenders and servicers to modify rates, terms and principal to make loans more affordable. Most significant is the federal Home Affordable Modification Program, or HAMP, which was launched in March as part of President Obama’s “Making Home Affordable” initiative.

But consumer activists and other critics say the industry has been very slow to adopt such changes, even under heavy government pressure. More lenders are participating now in HAMP, but it has taken time for information and procedures to filter to the local level.

One report by the National Consumer Law Center in October claimed servicers have concluded that it’s cheaper to foreclose than to modify a loan, and called on lawmakers and regulators to mandate modifications.

In New York State, lawmakers last year passed subprime mortgage legislation that required a 90-day pre-foreclosure notice to delinquent borrowers of subprime loans, and mandated that courts hold a “settlement conference” between the borrower and lender before a foreclosure can proceed. The mandatory provisions took effect in September 2008, but the law applied only to subprime loans.

That just changed, however, as Gov. David A. Paterson this month signed new legislation extending those same provisions and protections to all mortgage borrowers — making New York the first state to do so.

The new law also requires lenders or servicers to maintain foreclosed property once they obtain a judgment and sale, and sets protections for tenants in foreclosed properties. It takes effect in mid-January.

“The new law will go a long way toward reducing foreclosures in New York state, by giving all homeowners a fair shake in the foreclosure process, and by directing all homeowners in default on their mortgages to nonprofit assistance early in the process,” Kirsten E. Keefe, senior staff attorney at Empire Justice Center in Albany and executive director of New Yorkers for Responsible Lending, said in a press release from the nonprofit coalition.

Not everyone is convinced. A separate report by NCLC in September criticized settlement conferences and similar mediation efforts in 14 states, including New York, saying they don’t have teeth to hold lenders accountable. “Servicers have all the discretion and homeowners have little or no power,” said staff attorney Geoffrey Walsh.

The 8th Judicial District, which encompasses Buffalo and the eight-county Western New York area, is unique in the state in that all pre-foreclosure settlement conferences are overseen by a single judge — Walker. Most other judicial districts have more than one judge handling cases, which spreads the workload but also means the effort is less centralized.

Walker’s office sends out informational brochures and letters scheduling an initial meeting between the borrower and the lender, or their attorneys, with Walker — or his law clerk, Darryl Colosi — as mediator. Mondays are reserved for initial conferences, with follow-ups scheduled on other days.

The conferences are held in Colosi’s office or Walker’s chambers, not in the court, so as to minimize discomfort. Borrowers who come without counsel about half of the total are usually referred to the Western New York Law Center, which now specializes in this area. The center has two attorney interns Villeda and Denetra Williams assigned to the court and present every Monday.

Similarly, most of the lenders use just a handful of attorneys locally, especially Steven J. Baum PC, which handles more than half of area foreclosure cases.

The conferences do not always work, and sometimes Walker must sign the foreclosure order. But he insists that banks must have their own paper trail in order, including having the loan properly assigned to the servicer or plaintiff. Otherwise, he’ll dismiss the case, as he’s done with 250 orders.

“They know the paperwork has to be right, even if the borrower defaulted,” he said.

Baum would not comment for this story, nor would Robert Gleichenhaus or lawyers at Rosicki, Rosicki & Associates, the other lender attorneys locally.

From the law’s effective date through Oct. 16, Walker’s office scheduled 925 conferences with borrowers facing foreclosure, with more letters going out each week. In all, the district has about 1,000 active cases, 60 percent in Erie County.

So far, the court has held 341 conferences, with more pending. Of the rest, 335 cases were resolved through private settlements, short-sales, deed-in-lieu-of-foreclosure transfers, bankruptcy filings or other means, such as the borrower catching up on his or her own.

But 235 were “no-shows,” despite Walker’s two-page letter to them urging them not to ignore the notice.

“That’s the biggest problem is getting people in the door,” Walker said. “If we can get them to meet with the bank, our percentages of modifications go up.”

The letter has even been revised at least five times to soften it, and Walker has considered using a different return address. “It’s like you’re inviting them, but it’s not a party you really want to go to,” he said. “Foreclosure is a cold process. I’m not saying we can be all Kumbaya, but we can make it easier.”

Walker and his staff have already overseen 97 settlements, which means 28 percent of the conferences they’ve actually held have been successful.

By contrast, Brooklyn and Queens have about 10,000 to 12,000 active cases each, and far fewer conferences, with less than

 

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