Justice Jeffrey A. Spinner, sitting in a Supreme Court Part in Riverhead, New York (Suffolk County), has recently ordered that a $292,500 mortgage be deemed “cancelled, voided, avoided, nullified and set aside”. He took this action due to the fact that IndyMac Mortgage Services, a division of One West Bank FSB and its representor were engaged in “harsh, repucnic, shocking and repulsive” behavior.

Greg Horoski and his wife, Diana Wano-Horoski, bought a four bedroom, three bath home 1994. They paid $178,000 for their home. They refinanced their home in 2004 for $292,500.

They eventually fell behind on their mortgage. Mrs. Horoski was in failing health. She had undergone triple bi-pass heart surgery in 2006.

Every two or three months Mr. Horoski would contact his bank for the purpose of avoiding foreclosure. He would advise them that he could make payments in various amounts. He asked if they would accept these payments as a good faith measure and that they reinstate the loan. Greg and Diana Horoski appeared at every court appearance. Court conference were rescheduled on five separate occasions due to IndyMac Bank’s failure to cooperate.

Judge Spinner’s decision indicated that IndyMac Bank displayed an intransiness in its continuing failure and refusal to cooperate with the court. The Judge said a bank officer who appeared on September 22nd had a “Opprobrious demeanor and condescending attitude” . He would not accept any offer by the homeowners including an offer by their daughter to purchase the house.

The Judge further indicated on November 18, 2009 court conference the bank did not even know the specific balance due in owing of the house. The Judge felt due to the extremely inappropriate behavior of the bank, severe sanctions would have to be imposed to prevent the bank from engaging in further abuse. In the end, IndyMac Bank would not consider any loan modification arrangements. The bank has indicated they will appeal Judge Spinner’s decision.

Are you behind in your mortgage? Are you in foreclosure? Problems with your bank or mortgage company? The mortgage renegotiation and defense lawyers at the law office of Elliot Schlissel may be able to help you with these problems. Contact us by e-mail or call anytime at 1-800 344-6431.

Picture courtesy of ncbm.org.

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The Supreme Court heard arguments on Monday in the case of Milavetz, Gallop & Milavetz v. the United States. The specifics of the case were discussed in a series of articles in the New York Law Journal Monday and yesterday by Marcia Coyle.

The Milavetz & Gallop firm, based outside Minneapolis, Minnesota, along with some of their clients, challenged certain provisions of the amendments to the Bankruptcy Code of 2005, called BAPCPA (Bankruptcy Abuse and Prevention Consumer [credit card company, actually] Act) on First Amendment grounds, only one month after it became law.

The Milavetz firm most prominently challenged provisions of the Code which demands that they place a notice on all Bankruptcy related advertising that indicates that the firm is a “debt relief agency,” thus equating law firms with the fly-by-night debt counselors you hear about on the radio. The firm argued that this is insulting to lawyers and an unconstitutional regulation of true, non-misleading speech.

They also challenged the Code’s new requirement that attorneys representing clients contemplating bankruptcy may not advise those  individuals, if they are below a certain income level, to take on any new debt. Milavetz asserts that this rule unconstitutionally interferes with the lawyer/client relationship. It also prevents attorneys from advising clients to consolidate debt by taking out a new loan, a strategy which may help keep some people out of bankruptcy altogether.

Milavetz even said that if the high court doesn’t come down on their side, holding the challenged provisions of the Bankruptcy Code to be unconstitutional, “we will handle no more consumer bankruptcy cases…”

Hopefully the Supreme Court will indeed find these overeager provisions of the 2005 Bankruptcy Code amendments unconstitutional.

If you need help with a Bankruptcy, Foreclosure, and Mortgage Modification matter in the New York area, please give us  a call at 800-344-5431 or you can click here to contact us by e-mail.

Picture courtesy of  Milavetz, Gallop & Milavetz, P.A.

In the United States today there are more than more than twenty-two hundred (2,200) juveniles who are incarcerated as adults. These juveniles are serving life sentences without the ability to obtain parole (to be released from jail prior to the end of their sentence). Among the twenty-two hundred (2,200) juveniles, there are some prisoners who are as young as thirteen (13) years old.

In 2005, the United States Supreme Court, in a close decision (5-4), held that an individual who committed a crime when he or she was younger than eighteen (18) years of age cannot be executed. The court held this was unconstitutional.

On Monday, November 16, 2009, attorneys representing two minors sentenced in the State of Florida argued before the United States Supreme Court that the theory behind the prior death penalty decision in 2005 should also be extended to minors receiving life sentences.

The theory behind the death penalty decision of the United States Supreme Court was based on two key factors: (1) minors are not as culpable for this crimes as adults and they can be reformed and (2) The Supreme Court held that it would be “cruel and unusual punishment” to execute minors. Cruel and unusual punishment is banned by the 8th Amendment to the United States Constitution.

Terrence Graham and another individual robbed a restaurant. He is in jail for this crime. In 2004, when he was only seventeen (17) years of age, he was sentenced to life in prison without parole. This action was taken because he violated the terms of his probation by committing another robbery at gun point.

Joseph Sullivan, committed a burglary when he was thirteen years old. He thereafter was convicted of sexual battery against a seventy-two year old woman. Joseph Sullivan, a mentally disabled individual, has been convicted of several serious felonies and seventeen criminal offenses overall.

In the aforementioned two cases, both of the juveniles were given life sentences for crimes that did not involve homicides. It should be noted that more than 135 countries throughout the world do not allow life sentences for juveniles.

The United Nations Treaty prevents the imprisonment of children without the possibility of parole. All of the countries who are members of the United Nations with the exception of the United States and lonely Samoa have executed this treaty.

Is our society mature and sophisticated enough to deal with errant juveniles without warehousing them in prisons for their entire life?

Elliot S. Schlissel, Esq.

800-344-6431

Picture courtesy of acslaw.org

In this lecture, given in September of last year, Justice Antonin Scalia speaks about what makes good legal writing. He is certainly known as an excellent and clear writer, even by those who disagree with him politically and in terms of judicial philosophy. He wrote an excellent book as well, called Making Your Case: The Art of Persuading Judges (which I have read, though I’m not sure it shows on this blog). He got the award, which he is accepting in this speech, in recognition of his “Lifetime Achievement in Legal Writing.” The video come in two parts. Enjoy.