If you have been served a Summons and Complaint from a foreclosure action, in New York, you are probably concerned. You only have a limited period of time in which to file an Answer in a New York Court, depending on your circumstances. As a homeowner with a mortgage, you have the opportunity to raise several different defenses in the answer. If you have received a Summons and Complaint for foreclosure action, it is important to speak with a skilled lawyer as soon as possible. Contact Thomas Weiss & Associates as soon as possible to schedule your initial consultation.
How Long do I Have to File an Answer to the Foreclosure Complaint?
The Civil Practice Law and Rules (CPLR) governs civil procedure in New York. After you have been served a complaint, you must answer within 20 days after personal service. However, if you received service through another means, you have an additional 10 days to answer, giving you a total of 30 days to answer from the point at which the service is complete. If you do not file your answer in the time limit, a New York court will consider you to be “in default.” At this point, the plaintiff will file a motion for default judgment against you.
Options for Getting Out of Default in a Foreclosure
Homeowners who are in default have two options to get out of default in a foreclosure. First, they can receive the plaintiff’s consent to file an Answer late, or they can file a motion with the Court and ask the court permission to file an Answer to the Summons and Complaint late. The answer to the Summons and Complaint will admit or deny allegations made in the complaint. Most likely, you will deny allegations made in the complaint. The answer can also explain why the court should not allow the bank to move forward with the foreclosure.
Defenses to Foreclosure Summons and Complaints
The first defense you can argue in your answer is that the plaintiff bank or mortgage lender lacks standing. Courts require that the plaintiff have standing before they can bring a lawsuit. In a mortgage foreclosure case, the issue of standing involves whether or not the lender owns your mortgage. If you argue that the lender does not have standing to bring the lawsuit, the lender cannot foreclose on your home until the lender proves that it has the proper standing.
Lack of Cause of Action in a Foreclosure
The plaintiff must have a proper cause of action in order to bring a lawsuit against another person. You may be able to argue that the plaintiff lender does not have a valid cause of action, or that the lender does not have a valid claim that you are in default. Without a proper cause of action, the plaintiff cannot bring a case.
Defenses to Foreclosure Notices
Banks must serve a Summons and Complaint in a way that meets the requirements set forth in the rules of civil procedure. New York courts use strict rules when it comes to service. If the bank did not properly serve you in a way that meets the rules of civil procedure, you could have a legitimate defense against the foreclosure Summons and Complaint. Summons and Complaints are only properly served when the following actions take place:
- Someone handed the Summons and Complaint
- The Summons and Complaint must be left at your business or home with a person of suitable age and discretion
- After in-person service, the plaintiff must mail another copy of the Summons and Complaint within 20 days to your business or home
- When the plaintiff attaches a copy to your home or business door, they must mail another copy to your home or business within 20 days
Another defense is not receiving a Notice of Default from the bank. When a mortgage becomes 45-60 days past due, New York law requires the bank to send you a Notice of Default. The Notice of Default is a letter that states that you are in default and that your entire debt is due immediately.
Additionally, the bank has a legal duty to send you a 90-day notice before it begins its foreclosure case. This notice allows lenders to take the time to try to pay back the debt in order to avoid the court process. The notice must clearly state that you could lose your home, the number of days in which the mortgage payment is late, along with other requirements.
The Real Estate Settlement Procedures Act Early Intervention Requirement
Federal law requires banks to contact lenders when they are behind on mortgage payments. The goal of these laws is to help lenders find alternatives to foreclosures, such as a possible short sale or a loan modification. Lenders have a legal duty to reach out to homeowners who are behind in payments before bringing a foreclosure action. By law, a lender cannot start a foreclosure case:
- Before the loan is over 120 days overdue
- When the lender has applied for a loan modification and the lender has not approved or denied the modification
- When the lender has been denied a loan modification but has a pending appeal or still has time to appeal the decision
Did you receive your mortgage through the Veteran’s Administration? If so, your mortgage lender cannot bring a foreclosure case against you until it takes every reasonable effort to arrive at some kind of other solution. If your lender did not contact you to discuss your options before they brought the foreclosure action, you can raise this defense in the answer.
Contact the New York Foreclosure Lawyers Today
If you have received notice of a foreclosure, you may be worried about staying in your home. At Thomas Weiss & Associates, our lawyers have the experience and skills necessary to skillfully represent your interests. We will develop a compelling legal strategy. Contact our New York law firm today to schedule your initial consultation.