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Michael J. Catalfimo

Michael Catalfimo’s Answers

60 total


  • Foreclosure Action - Filing a Notice of Claim

    1. How do I do this in NY County? Is there a form? Is there a fee? 2. I only have a lawsuit at the moment against the bldg - not a judgment. Can I still file the notice?

    Michael’s Answer

    Your question is not detailed enough for a propr answer to be given. Try adding more facts about what you are trying to accomplish.

    DISCLAIMER: The foregoing is not intended to constitute legal advice, or to create an attorney-client relationship between us (See paragraph 8 of Avvo Terms and Conditions of Use). It is offered, instead, as general legal information relevant to the issue(s) raised in your question. Legal information is not the same as legal advice (i.e., the application of law to an individual's specific circumstances). If you desire to obtain legal advice, you should retain the services of an attorney to represent you. If you choose to act upon the information provided above without first retaining an attorney, you do so at your own risk.

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  • Summons received for a foreclosure after a bankruptcy has dischagred, must I reply?

    I received a summons complaint to forclose on the property, a house. I filed a chapter 7 and the bankruptcy has been discharged and approved. The lift of the automatic stay was done. The home was on the bankruptcy and in the letter from the federa...

    Michael’s Answer

    The bank must include you in its foreclosure action, but you are not legally obligated to respond to the summons or participate in the lawsuit. If, as you indicate, you have vacated the property and have no interest in trying to maintain your ownership of it, then there would be no reason for you to appear in the action.

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  • What will happen to my 2nd mortgage after 1st mortgage forclosure?

    I purchased my home for 400K march of 2005 with 80/20 loan. First mortgage was 320K - 2nd was 80k. The first was an interest only loand for two years. After that, i could no longer afford my home - long story short, I lost my home 3/08. I reci...

    Michael’s Answer

    The lien of the second mortgage was cancelled by the foreclosure of the first mortgage, but your obligation to pay the second mortgage debt was not. The holder of the second mortgage will likely communicate with you before long, and demand that you pay the debt. If you refuse, a collection action will be brought against you.
    As noted in the last answer, it is possible to discharge your liability for the second mortgage debt by filing for bankruptcy. Whether it is advisable for you to do so, however, is a question you should answer only after obtaining the advice of an experienced and reputable bankruptcy attorney.

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  • How would this proceed

    Can a foreclosure proceedings continue if Suntrust (plaintiff) had sold/transferred/assigned the mortgage and note to a new lender/servicer? in middle of proceedings? Didn't Suntrust pass those rights to the new party? Must the new assignee f...

    Michael’s Answer

    A party may only prosecute a mortgage foreclosure action if it has the "legal standing" to do so. Typically, this means that the plaintiff must either be the owner of the note and mortgage which are the subject of the foreclosure action, or a properly authorized agent of the owner.
    If Suntrust was the owner of the note and mortgage when it started the foreclosure, then it had proper legal standing to bring the action. If it sold the note and mortgage before the action was concluded, then it lost legal standing to prosecute the action when the salw was completed. At that point, the new owner would need to be substituted into the lawsuit in the place of Suntrust in order for the lawsuit to continue.

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  • Service by publication question.

    Hello! A few days ago I asked a few questions about service by publication but left out a few details.I currently live in another state and was told that several weeks ago my name appeared in the newspaper in the town/state (NE) that I used to liv...

    Michael’s Answer

    Being held in contempt of court for non-payment of child support is a serious thing, and can have many unpleasant consequences. You should contact an attorney experienced in matters of this nature who regularly appears before the Judge assigned to your case, and seek his or her advice on how to deal with the problem. If in fact you are delinquent in the payment of child support, the best course of action will probably be for you to appear before the Court and propose a payment plan to get caught up. Do not delay! The longer you let this go, the harder it will be to straighten it out.

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  • My brother is bi-polar and he recently made his nursing facility payee of his disability benefits. Is that legal?

    What if he also has some mental health issues? He has been struggling with multiple addiction issues and (we) the family are wondering (legally) if we could argue that he was not of sound mind when he made them payee. The facilty has cancelled h...

    Michael’s Answer

    When your brother made his nursing facility the payee of his disability benefits, he created a contract. In order for that contract to be legally enforceable, your brother must have been mentally competent at the time he made it. If he wasn't, the contract can be avoided.

    As a general rule, a party is presumed to be legally competent to make a contract and the party asserting incapacity bears the burden of proving incompetence (see, Matter of Gebauer, 79 Misc 2d 715, 719, affd 51 AD2d 643). Furthermore, it must be shown that, because of the affliction, the person was incompetent at the time of the transaction (see, Matter of Bush, 85 AD2d 887, 888). It has been stated that the inquiry is whether the person's mind was "so affected as to render him wholly and absolutely incompetent to comprehend and understand the nature of the transaction" (Aldrich v Bailey, 132 NY 85, 89; see, Ortelere v Teachers' Retirement Bd., 25 NY2d 196, 202).

    Proving or disproving an individual's mental capacity to make a contract generally requires the presentation of expert medical testimony. Without the cooperation and assistance of a qualified health care provider, you probably have little chance of successfully challenging your brother's beneficiary designation. If you feel strongly that it was not knowingly given, however, then you might consider asking an appropriate state or local government agency to conduct an investigation into the matter. In Illinois, the following hyperlink will take you to the website of the Illinois State Guardianship and Advocacy Commission, which may be able to assist you: http://gac.state.il.us/ The Illinois Department of Human Services may also be able to help you, and its website can be found at http://www.dhs.state.il.us/page.aspx?item=29728

    Good luck.

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  • In a foreclosure case where many letters are sent back and forth, how is the date of receipt determined?

    The attorney for the plaintiff sends the same letter via regular mail and certified mail. If I wait to pick up the certified letter at the latest possible date, will that be the date used for receipt of the document?

    Michael’s Answer

    You should first look at your loan documents to see if there is a clause related to how notices are to be given. In the absence of a contrary provision in the loan documents, a notice sent in a letter will usually be deemed to have been effectively given on the date that it is MAILED, rather than the date it is RECEIVED. As a result, it probably doesn't matter whether you claim the certified mail or not.

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  • Tenant attending foreclosure hearing??

    LL home in foreclosure, court date is coming. We the tenants have been trying to reach LL for 2 years, she refinanced and took off to Calif. Lawyers won't help us, they say they would work for the owner not tenant. We have made offers to buy befor...

    Michael’s Answer

    Foreclosure sales in New York are conducted at public auctions. These sales are advertised in the newspaper and anyone is permitted to attend the sale and bid on the property.
    You should carefully monitor the papers which are filed in the foreclosure action with the county clerk. When the Final Judgment of Foreclosure and Sale has been filed, review it to find the name and phone number of the Referee appointed to sell the property. Call the Referee and ask to be sent copies of the Notice of Sale and Terms of Sale. These documents will tell you the date, time and place of the sale, and the terms of the bidding. Attend the sale ready to bid, and have with you a sufficient deposit to give the Referee if you are the successful bidder.
    Good luck.
    DISCLAIMER: The foregoing is not intended to constitute legal advice, or to create an attorney-client relationship between us (See paragraph 8 of Avvo Terms and Conditions of Use). It is offered, instead, as general legal information relevant to the issue(s) raised in your question. Legal information is not the same as legal advice (i.e., the application of law to an individual's specific circumstances). If you desire to obtain legal advice, you should retain the services of an attorney to represent you. If you choose to act upon the information provided above without first retaining an attorney, you do so at your own risk.

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  • What happens if I refuse to pay defaulted 2nd mortgage

    I had a house in Florida, it was forclosed on 2 yrs ago and now Debt collection service is looking to recoup the money, I have no money what happens if I just let this go to collections my credit is not good anyway?

    Michael’s Answer

    Initially, you will likely receive telephone calls and letters from the owner of the debt, or from a collection agency acting on the owner's behalf. You can slow or stop these collection contacts by exercising certain rights you have under the Fair Debt Collection Practices Act (the "FDCPA"), but the collection effort will likely continue after the creditor has validated the debt in compliance with the FDCPA. At that point, a lawsuit will be commenced against you to recover a money judgment for the amount owed on the mortgage note.
    If you ignore the lawsuit, a judgment will eventually be entered against you for the amount sued for. The holder of the judgment is then entitled to use a variety of collection remedies to: (a) investigate your income, expenses, assets and liabilities; and (b) attempt to recover the judgment amount from any income or assets you have which are not exempt from collection under state law.
    Please note that the judgment remains valid for a long time. If you never have non-exempt income or assets while the judgment is valid, that won't present a problem for you beyond the damage to your credit. If your financial circumstances improve, however, the judgment could cause you to lose assets or income.
    DISCLAIMER: The foregoing is not intended to constitute legal advice, or to create an attorney-client relationship between us (See paragraph 8 of Avvo Terms and Conditions of Use). It is offered, instead, as general legal information relevant to the issue(s) raised in your question. Legal information is not the same as legal advice (i.e., the application of law to an individual's specific circumstances). If you desire to obtain legal advice, you should retain the services of an attorney to represent you. If you choose to act upon the information provided above without first retaining an attorney, you do so at your own risk.

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  • I am a tenant and just found out that the house I am renting went in to judgement of foreclosure and sale do i still pay rent

    i want to to know if the house still belongs to the landlord and do i still pay him rent.

    Michael’s Answer

    The foreclosure judgment does not end your landlord's ownership of the property. A foreclosure sale must be completed before the ownership of the property will change. Until then, your landlord is still entitled to the rent for your apartment.

    Determining what you should or should not be doing now as a tenant depends on many things, including:
    1. Whether your lease is a month to month tenancy, or one for a stated term;
    2. What amount of time remains on your lease term;
    3. How long you would like to continue to remain in your apartment after the ownership of the property changes hands;
    4. Who owns and services your landlord's mortgage loan, and what level of interest they have in keeping you as a tenant in the building; and
    5. Whether your lease qualifies you for protection under federal and state tenant protection statutes.
    You should consult an attorney to discuss these factors in greater detail.

    DISCLAIMER: The foregoing is not intended to constitute legal advice, or to create an attorney-client relationship between us (See paragraph 8 of Avvo Terms and Conditions of Use). It is offered, instead, as general legal information relevant to the issue(s) raised in your question. Legal information is not the same as legal advice (i.e., the application of law to an individual's specific circumstances). If you desire to obtain legal advice, you should retain the services of an attorney to represent you. If you choose to act upon the information provided above without first retaining an attorney, you do so at your own risk.

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