Family begins legal fight to keep home sold out from under them

BUFFALO, N.Y. (WIVB) – A family whose home was foreclosed on and sold by the city because of unpaid garbage fees had their day in court and for now, they can stay in their house.

The Rabatoys had their Riverside home sold out from under them at an auction to pay $400 in two years of unpaid garbage fees. But round one of the legal tug-of-war went to the family when a state judge ruled Thursday they can stay in their home as their case moves forward.

Dawn Gonzalez and her husband own the house her elderly parents, Bob and Lillian Rabatoy, live in on Esser Avenue.

“We’ve been in this house for 14 years. They don’t want to leave, this is all they know,” she said. “I don’t know much longer I’m going to have my parents. Now you are telling me I have to take them from here?”

Gonzalez and her parents are suing to keep the house, naming the city, their mortgage company, and the New Jersey investor who bought their house in the foreclosure sale as defendants.

A state judge granted the family’s motion to keep their home as their attorneys argue to overturn the sale.

The family’s attorney, Michael Risman, said, “We are pleased that the judge granted our motion for a preliminary injunction to allow this family, this elderly couple, to stay in their residence pending the outcome of the case.”

Gonzalez and her family claim, they did not know about the city’s garbage user fee and thought their monthly mortgage payments included the user fee, as well as property taxes and other charges.

We found through a Freedom of Information request that city records showing their mortgage servicer, Option One Mortgage, had been paying the garbage user fee.

Copies of the checks we obtained show Option One Mortgage paid $513 for garbage user fees in 2005, and $419 in 2007. But the checks stopped after Option One Mortgage sold the mortgage to a new servicing company.

Gonzales and her parents claim no one notified them of any of these obligations or the pending sale of their property.

Attorney Jeffrey Lazroe, who is representing the buyer, told the judge his client has a substantial investment in the Esser Avenue property.

“But there are a lot of issues here, which have not been brought out here, but will be brought out in a hearing,” Lazroe said.

After Thursday’s ruling, Supreme Court Justice Tracey Bannister set the next hearing for April 22. These kinds of legal entanglements do occur frequently at city auctions and the Common Council is reforming foreclosure practices to avoid this kind of aggravation.

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