Even when a client is financially eligible for a home loan modification and the lender is willing to extend affordable terms, preserving a home from foreclosure may require legal assistance. Nassau Suffolk Law Services' Foreclosure Unit recently worked with pro bono matrimonial counsel from the Safe Center to secure a loan modification for a survivor of domestic violence.
In 2011, Ms. L and her children fled their home as a result of domestic violence. When her ex-husband started divorce proceedings, retired Nassau County Judge Elaine "Jackie" Stack stepped in to represent Ms. L as pro bono counsel through the Safe Center LI. After trial, Ms. L's ex-husband was ordered to sell the property and split the proceeds with Ms. L. Instead, he rented the property out and pocketed the proceeds without paying either the mortgage or his child support obligations. As a result, Ms. L was granted exclusive possession of the family home in 2019. However, she returned to find her home in foreclosure due to her ex-husband’s failure to pay the mortgage.
Ms. L sought the assistance of a HOPP-funded housing counselor and submitted an application for a modification. NSLS Foreclosure prevention staff attorney Kathleen Maher represented Ms. L during the mandatory foreclosure settlement conference process. Ms. L was ultimately granted a trial loan modification over her ex-husband's objection and without consideration of his income or assets. She made three monthly trial payments, with the expectation that she would then be offered a loan modification, preserving her family's housing. Indeed most servicing guidelines allow a loan modification without the signature of both borrowers in cases of death or divorce, particularly if domestic violence is involved.
Instead, the mortgage servicer demanded that Ms. L's ex-husband sign the modification agreement. He refused. Moreover, he repeatedly attempted to interfere with Ms. L's modification application.
Maher moved the court handling the foreclosure proceedings for an order directing the foreclosure plaintiff to honor the loan modification with Ms. L. Maher coordinated with Judge Stack to seek an order in the divorce proceedings granting Ms. L exclusive title to the property. Notably, Judge Stack continued working on Ms. L's case up until the day of Judge Stack's death from Covid-19.
Ms. L's ex-husband objected to both motions, arguing that the house should be sold. Maher demonstrated to the court that the loan modification would not be prejudicial to Ms. L's ex-husband: There was no equity in the property, and he had discharged his debt on the note securing the mortgage through bankruptcy years earlier. Ms. L obtained two court orders, one extending and confirming her exclusive use of the property, and the other directing the foreclosing plaintiff to honor the loan modification with Ms. L. The foreclosure court further enjoined Ms. L's ex-husband from attempting to interfere with the modification process.
With this authority, Ms. L was finally able to obtain her loan modification, preserving a home for her three minor children.
The New York State Homeownership Protection Program (HOPP) funds our Foreclosure Prevention Unit along with a network of housing counselors and legal service providers across the state. HOPP funding is scheduled to expire in July 2021 unless the current version of the NY budget is approved.
