Author Archives: Peter Roach

avatar

About Peter Roach

Peter Roach is a mortgage default attorney & owner of Peter T. Roach & Associates, P.C. in Syosset, New York.

EMAIL: peter.roach@roachlawfirm.com

BIO: About Peter

PHONE: (516) 938-3100 x318

What Actually Happens at a Real Estate Closing?
avatar


Authored by , re: REAL ESTATE ARTICLES, on .
What Actually Happens at a Real Estate Closing? | Peter Roach

A real estate “closing” is the event where parties meet in order to consummate a real estate transaction. At a typical real estate closing, where one party is selling real estate to another, the parties who will attend the closing consist of the sellers and their lawyer, the buyers and their lawyer, the bank's attorney, the title closer, and one or more real estate brokers

If the purchase is being financed, there are actually two transactions that occur simultaneously; the sales transaction between Seller and Purchaser and the mortgage transaction between Lender and Borrower (who is also the purchaser).

Click here to read Peter Roach's full article...

After Surrendering in Bankruptcy, Contesting Foreclosure is not Allowed
avatar


Authored by , re: REAL ESTATE ARTICLES, on .
After Surrendering in Bankruptcy, Contesting Foreclosure is not Allowed | Peter T. Roach

Oftentimes, a debtor files a bankruptcy petition that will stay a pending foreclosure. Should the debtor seek relief under Chapter 7, all property of the debtor becomes property of the bankruptcy estate and subject to disposition by the Chapter 7 trustee, with court approval. Should the Chapter 7 trustee determine that there is no equity in the mortgaged premises, he/she will “abandon” the property, and title will then revert back to the debtor. The debtor must then either pay the secured debt, or “surrender” the property to the secured creditor in satisfaction of, at least, the secured portion of the debt.

Click here to read Peter Roach's full article...

Should I Buy a Short Sale?
avatar


Authored by , re: REAL ESTATE ARTICLES, on .
Should I Buy a Short Sale? | Peter Roach

A “short sale” is a sale of real estate in which the proceeds from the sale will be “short” of the aggregate amount needed to pay, in full, the liens secured by the property being sold.

Typically, the property being sold is in foreclosure and the lender is willing to accept a lesser amount than the total amount owed—as full payment of its mortgage—in order to avoid the time and expense of completing the foreclosure.

Click here to read Peter Roach's full article...

Should I Buy a New Home Before I Sell My Own?
avatar


Authored by , re: REAL ESTATE ARTICLES, on .
Should I Buy a New Home Before I Sell My Own? | Peter Roach

Should I buy a new home before I sell my own? The short answer is: It depends. If you want to minimize your financial risk, then you should sell your current house first and then buy a new one. If on the other hand, you want to minimize your inconvenience, then you should buy your new house first and then sell your current one. If you value your convenience more, you should buy your new house first. It is much more convenient because you can take as long as you like to find your “perfect house” and then move into it whenever you want.

Click here to read Peter Roach's full article...

What It Means to Be “Judgement-Proof”
avatar


Authored by , re: REAL ESTATE ARTICLES, on .
What It Means to Be “Judgement-Proof” | Peter Roach

Prior to the establishment of the United States, people in England who did not pay their debts were sent to debtor's prison. Today, in the United States, there is no debtor’s prison and creditors can only enforce judgments if they can locate the assets of the judgement debtor, and have them sold to liquidate the debt or by garnishing their wages. If a debtor truly has no job or assets, he is said to be “judgement proof” because a judgment creditor has nothing to sell or garnish.

Click here to read Peter Roach's full article...

Why New York Mortgage Lenders May Actually Want To De-accelerate Their Loans
avatar


Authored by , re: REAL ESTATE ARTICLES, on .
Why New York Mortgage Lenders May Actually Want To De-accelerate Their Loans | Peter Roach

The foreclosure crisis of 2008 resulted in a multitude of new consumer protection statutes, regulations, procedures, and a complete change in attitude amongst court personnel, all of which has caused a tremendous delay in the foreclosure process. In New York, the commencement of many foreclosures are delayed while the banks and servicers satisfy the "pre-foreclosure requirements" (see article - New York Foreclosure Referrals - Get It right BEFORE you start); and once they are finally initiated, there is an inordinately long process until the foreclosure is dismissed.

Click here to read Peter Roach's full article...

How Is a Collection Agency Different From a Collection Law Firm?
avatar


Authored by , re: REAL ESTATE ARTICLES, on .
How Is a Collection Agency Different From a Collection Law Firm? | Peter Roach

If you are owed a debt that you have been unable to collect, you can hire a collection agency or retain a collection law firm to collect it for you. There are significant differences between the services the two provide, as well as the fee structure charged by each.

A collection agency is comprised of non-lawyers who make phone calls and write letters on your behalf. They contact the debtors, inform them of their delinquent obligations, and try to convince them to pay what is owed. But all they can do is request the debtor to voluntarily pay the debt. 

Click here to read Peter Roach's full article...

Payoff Letters: The Newest FDCPA Landmines
avatar


Authored by , re: REAL ESTATE ARTICLES, on .
Payoff Letters: The Newest FDCPA Landmines | Peter Roach

On December 3, 2015, the United States Court of Appeals, 11th Circuit, decided the case of Kevin Prescott v. Seterus, Inc., 635 Fed. Appx. 640, 2015 U.S. App. LEXIS 20934 (11th Cir. Fla. 2015) and held that the inclusion of estimates or anticipated costs that have not yet been incurred, in a payoff or reinstatement letter, is a violation of the FDCPA. In this case, the mortgagor, Kevin Prescott, defaulted and thereafter requested a reinstatement letter.

Click here to read Peter Roach's full article...

Types of Short Sales—Part Three: FHA
avatar


Authored by , re: REAL ESTATE ARTICLES, on .
Types of Short Sales—Part Three: FHA | Peter Roach

In the first two parts of this series of articles, we discussed the short sale programs offered by HAFA (Home Affordable Foreclosure Alternatives), Fannie Mae (Federal National Mortgage Association; FNMA) and Freddie Mac (Federal Home Loan Mortgage Corp; FHLMC). If the borrower’s mortgage has been insured by the Federal Housing Administration (FHA), however, the short sale must satisfy the requirements of the Department of Housing and Urban Development (HUD) guidelines, which include:

Click here to read Peter Roach's full article...

Types of Short Sales—Part Two: Freddie Mac and Fannie Mae
avatar


Authored by , re: Real Estate, on .
Types of Short Sales—Part Two: Freddie Mac and Fannie Mae

In our last article, we discussed the different types of short sales available and some of the details of the HAFA short sale program, in particular. In this article, we discuss some of the requirements and provisions of the Fannie Mae and Freddie Mac short sales. The Federal National Mortgage Association, often referred to as Fannie Mae or FNMA, offers a short sale program for any mortgages it owns where the "Borrower" is facing the following:

  • is facing a long-term hardship,
  • is behind on mortgage payments,

Click here to read Peter Roach's full article...

Types of Short Sales—Part One: HAFA
avatar


Authored by , re: REAL ESTATE ARTICLES, on .

In my previous article, “How Short Is the Short Sale Process?” I described the process of having a short sale approved. In this series of articles, I will be discussing the specific requirements that must be satisfied in order to be approved.

The most common program, Home Affordable Foreclosure Alternatives (HAFA), was designed for borrowers with a documented hardship who do not qualify for a loan modification under the Home Affordable Modification program (HAMP).

Click here to read Peter Roach's full article...

Foreclosure Actions – How Does Accelerating the Mortgage Affect the SOL?
avatar


Authored by , re: REAL ESTATE ARTICLES, on .

My previous article regarding New York's Statute of Limitations (CPLR 213) described how New York provides an affirmative defense to actions based upon contractual obligations that accrued more than six (6) years ago. In Wells Fargo Bank, N.A. vs. Burke 94 AD3d 980 Appellate Division, 2nd Department, my law firm, Peter T. Roach and Associates, P.C., successfully argued that the Statute of Limitations had expired not for the entire debt, but only for the individual payments that had accrued more than six (6) years prior to the commencement of the action.

Click here to read Peter Roach's full article...

Did You Know the 90-day Notice Requirement Extends the Statute of Limitations?
avatar


Authored by , re: REAL ESTATE ARTICLES, on .

New York’s RPAPL 1304 requires that prior to the commencement of a foreclosure action, a notice must be given to the borrower allowing 90 days to cure the default before the plaintiff is allowed to file the summons and complaint. However, it is often the case that the Statute of Limitations is about to expire during this 90-day period, and servicers are often concerned that if they wait the 90 days to comply with the 90-day notice requirement imposed by RPAPL 1304, the Statute of Limitations will expire.

Click here to read Peter Roach's full article...

RPAPL 1304 – Are Mortgagors “Borrowers”?
avatar


Authored by , re: REAL ESTATE ARTICLES, on .
RPAPL 1304 - Are Mortgagors

New York's pre-RPAPL Section 1304 requires lenders to serve a notice to each "borrower" at least 90 days prior to the commencement of a foreclosure. Failure to do so will cause the foreclosure to be dismissed, as the requirement is considered to be a condition precedent to the commencement of the foreclosure. New York’s statute, however, does not define a “borrower" or distinguish between the parties who execute the note and those who execute the mortgage.

Click here to read Peter Roach's full article...

Statute of Limitations and the FDCPA
avatar


Authored by , re: Real Estate, on .
Statute of Limitations and the FDCPA | Peter Roach

My previous article, New York’s Statute of Limitations – Another Pitfall to Avoid!, discussed New York’s Statute of Limitations, which is six (6) years for a foreclosure, pursuant to CPLR 213. While some  jurisdictions have statutes of limitations which, once expired, absolutely extinguish the right of the creditor to any recovery, New York does not extinguish the creditor’s right to collect but allows the debtor to assert the Statute of Limitations as a defense to any judicial proceeding brought to enforce it, which will result in the dismissal of the proceeding.  3

Click here to read Peter Roach's full article...

CEMA vs. HOA Liens Which Have Priority
avatar


Authored by , re: Real Estate, on .
CEMA vs. HOA Liens Which Have Priority | Peter Roach

A Consolidation, Extension & Modification Agreement (CEMA) is an agreement that, as its name implies, consolidates two or more mortgages, extends the term of the obligation secured by them, and modifies its terms. It is used to avoid mortgage tax, which is calculated based upon the amount of "fresh money" being loaned. Typically, the new lender acquires the existing mortgage and the loan secured thereby by assignment. The lender then makes a new loan for the difference between the original mortgage being assigned to

Click here to read Peter Roach's full article...

Protections Provided by the Servicemembers Civil Relief Act
avatar


Authored by , re: REAL ESTATE ARTICLES, on .
Protections Provided by the Servicemembers Civil Relief Act | Peter Roach

The Servicemembers Civil Relief Act (SCRA), originally called the Soldiers and Sailors Civil Relief Act (SCRA), was enacted in 1940 to provide protection for members of the armed forces while serving our country. It requires lenders to provide forbearance and the reduction of interest rates with respect to certain obligations of military members, as well as restricts the entry of default judgments or evictions against them and their dependents. The SCRA is a federal statute codified at 50 U.S.C. App. §§ 501—597b.

Click here to read Peter Roach's full article...

What Can a Seller Do When a Buyer Is Unable or Unwilling to Close as Scheduled?
avatar


Authored by , re: REAL ESTATE ARTICLES, on .

When real estate is sold, the contract typically specifies that the closing will take place “on or about” a specified date. These “words of art” mean that the specified date is merely a “target date” and that the parties intend to close sometime in its vicinity; furthermore, each party will be entitled to an adjournment for a “reasonable time,” if needed, which New York courts have consistently defined as thirty (30) days.

Click here to read Peter Roach's full article...

Residential Real Estate: Buying vs. Renting
avatar


Authored by , re: REAL ESTATE ARTICLES, Residential Real Estate, on .
Residential Real Estate: Buying vs. Renting | Peter Roach

Is it better to buy or to rent? Whether you choose to live in an apartment, a townhouse, or a house is a matter of personal taste. The decision to purchase or rent, however, is a financial matter. Calculating the “cost” of renting is simple - you sign a lease and agree to pay a fixed amount each month until the expiration of the lease.

Click here to read Peter Roach's full article...

Why I Love Teaching at St. John’s University School of Law
avatar


Authored by , re: LAW RELATED ARTICLES, Real Estate, on .
Why I Love Teaching at St. John’s University School of Law | Peter Roach

I have been teaching at St. John’s University School of Law as an adjunct professor since 1987. Adjunct law school professors teach part-time as opposed to full-time, and are typically lawyers who are brought in to lecture on their expertise. The primary course I teach is Real Estate Finance, which covers regulation of the mortgage industry and the foreclosure process, including all of the new consumer protection laws, the impact of bankruptcy, and post foreclosure proceedings.

Click here to read Peter Roach's full article...

Mortgages: Adjustable or Fixed Rate; Which Is Better for You?
avatar


Authored by , re: LAW RELATED ARTICLES, Real Estate, on .
Mortgages: Adjustable or Fixed Rate; Which Is Better for You | Peter Roach

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. An adjustable- or variable-rate mortgage is one where the interest rate changes periodically. Some of them have the interest rate change each year; others change every three (3) years, every five (5) years, or every seven (7) years.

Click here to read Peter Roach's full article...

Do We Still Need Assignments of Mortgages in New York?
avatar


Authored by , re: LAW RELATED ARTICLES, Real Estate, on .
Do We Still Need Assignments of Mortgages in New York | Peter Roach

{2:45 minutes to read} The Court of Appeals recently confirmed that “the note, and not the mortgage, is the dispositive instrument that conveys standing to foreclose under New York law,” and that “the validity of the … assignment of the mortgage" is "irrelevant!”

The case, Aurora Loan Services, LLC v. Taylor, just decided by the Court of Appeals on June 11th 2015, confirms that it is critical for lenders to have possession of the note before commencing a foreclosure, affirming the decision of the Appellate Division 2nd Dept case,Bank of N.Y. v. Silverberg, decided in 2011.

Click here to read Peter Roach's full article...

Stay Ahead of the Curve with New York’s Online Real Estate Databases
avatar


Authored by , re: LAW RELATED ARTICLES, Real Estate, on .
Stay Ahead of the Curve with New York’s Online Real Estate Databases | Peter Roach

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.

Click here to read Peter Roach's full article...

Loss Mitigation: The Bankruptcy Process
avatar


Authored by , re: LAW RELATED ARTICLES, Real Estate, on .
Loss Mitigation The Bankruptcy Process | Peter Roach

In our last article, we discussed the Loss Mitigation procedures that occur in the state court, as part of the foreclosure process. In addition, Servicers are required to participate in Loss Mitigation within the Bankruptcy Court, once a Borrower files a Bankruptcy Petition. Since the Bankruptcy Court is a part of the federal court system, the process begins anew, regardless of what occurred at the state court mediation. While a request for Loss Mitigation may be made at any time during which the case is pending in the Bankruptcy Court, Debtors

Click here to read Peter Roach's full article...

Loss Mitigation: The NY State Court Process
avatar


Authored by , re: LAW RELATED ARTICLES, Real Estate, on .
Loss Mitigation: The NY State Court Process | Peter Roach

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.

Click here to read Peter Roach's full article...

Enforceability (or lack thereof) of Due-on-Sale and Due-on-Encumbrance Clauses
avatar


Authored by , re: LAW RELATED ARTICLES, Real Estate, REAL ESTATE ARTICLES, Residential Real Estate, on .
Enforceability (or lack thereof) of Due-on-Sale and Due-on-Encumbrance Clauses | Peter Roach

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.

Click here to read Peter Roach's full article...

Recent Decisions Regarding New York’s Pre-Foreclosure Requirements
avatar


Authored by , re: Business Law, LAW RELATED ARTICLES, REAL ESTATE ARTICLES, Residential Real Estate, on .
Recent Decisions Regarding New York’s Pre-Foreclosure Requirements | Peter Roach

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.

Click here to read Peter Roach's full article...

What is a Deficiency Judgement?
avatar


Authored by , re: Business Law, LAW RELATED ARTICLES, on .
What is a Deficiency Judgement | Peter Roach

When borrowers obtain a mortgage loan, they sign a Note, promising to repay the loan, and a Mortgage, that provides for the property to be sold at a public auction if they default, so the loan may be repaid from the proceeds of the sale. Sometimes, however, the property is sold at the auction for less than the balance due to the lender, resulting in a deficiency. When this occurs, the Lender may obtain a Deficiency Judgment against the parties who signed the Note,

Click here to read Peter Roach's full article...

Loss Mitigation Prohibitions It Ain’t Just Loan Mods
avatar


Authored by , re: Business Law, LAW RELATED ARTICLES, on .
Loss Mitigation Prohibitions It Ain’t Just Loan Mods | Peter Roach

{2:28 minutes to read} Many loan servicers are under the misimpression that the prohibition against dual tracking only applies to loan modifications. This is incorrect; it also applies to forbearance agreements, deeds in lieu of foreclosures and short sales. Once a borrower has submitted a completed application for any of these loss mitigation resolutions, the foreclosing plaintiff is not permitted to submit a judgment or schedule a foreclosure sale. If the loss mitigation application is submitted 37 days or less, prior to the foreclosure sale, a servicer may proceed with the foreclosure sale; however,

Click here to read Peter Roach's full article...

Debt Collection Consumer Protection: It’s not just FDCPA!
avatar


Authored by , re: Business Law, LAW RELATED ARTICLES, on .
Debt Collection Consumer Protection It’s not just FDCPA | Peter Roach

{6:45 minutes to read} My previous article on Debt Collection Consumer Protection described the protections afforded by the Fair Debt Collection Practices Act. There are also numerous other federal, state and local laws which provide additional protections for consumers. Some of these are: Dodd Frank Wall Street Reform and Protection Act of 2010 The Consumer Financial Protection Bureau was established by the Dodd Frank Wall Street Reform and Protection Act of 2010. Its mission is to establish protections for American consumers regarding financial products and services.

Click here to read Peter Roach's full article...