If you have fallen behind on your house payments to a mortgage holder like a bank or finance company in New York, it’s common to wonder what you can expect if you are unable to get back on track repaying your debt. Because New York is a judicial foreclosure state, the lender must file a lawsuit against you to enforce their rights – only if they win and get a court judgment can they auction off your property. However, there are a few steps leading up to foreclosure you can also expect. Here is a general sense of what you can expect during this type of New York real estate foreclosure process.
Pre-Foreclosure
Acceleration Letter – A lender must send this to a delinquent borrower after a default but before filing a foreclosure suit. The letter must tell the borrower they intend to accelerate the entire mortgage amount if the overdue money is not provided by a certain date.
90 Day Pre-Foreclosure Filing Notice – New York law requires a lender to provide a special notice to the borrower at least 90 days prior to filing a foreclosure lawsuit. It must include specific language as well as provide the borrower the names of at least 5 nonprofit housing counseling agencies near them.
Foreclosure in New York
Lender Files a Foreclosure Summons and Complaint – To begin the foreclosure process, the lender must file a Lis Pendens as well as a Summons and Complaint in court. The Lis Pendens advises the public the property title is involved in litigation, and the Summons and Complaint officially start the lawsuit.
Lender Files Request for Judicial Intervention, Affidavit of Service and Attorney Affirmation – The lender has to serve the Summons and Complaint on the borrower and file an affidavit with the court stating when and how the borrower was served these documents. The lender should simultaneously file a Request for Judicial Intervention advising the court a Mandatory Settlement Conference must be scheduled – if they do not, the borrower may file this. The lender also needs to file an Attorney Affirmation with the court.
Borrower Files an Answer to the Complaint – You must file an Answer to the Complaint within a prescribed time period (which is set based on how the Summons and Complaint were served). Failing to file an Answer results in a default judgment, which allows the lender to ask the court for an Order of Reference appointing a referee to calculate the amount owed to the lender. After this is done, the lender can request the court enter a Judgment of Foreclosure and Sale, which allowed the lender to schedule the property for auction.
Mandatory Settlement Conference – The court will hold a mandatory settlement conference within 60 days of filing the Affidavit of Service to try and get the lender and borrower to come to a mutually agreeable resolution. You’ll receive a notice from the court with the conference time, date, and location, as well as a list of anything you should bring to the conference.
Litigation and Discovery Phase – If the settlement conference is unsuccessful, litigation begins and the parties request documents from each other the discovery phase. The lender may also file a Motion for Summary Judgment in this phase if they believe the borrower does not have a meritorious defense – if this is successful the court will grant the motion and the lender can seek an Order of Reference and an auction date.
Trial – If neither settlement nor a motion can resolve the case, the foreclosure lawsuit will then go to trial.
New York Real Estate Law Firm
It is important to be aware of the foreclosure process in order to be proactive in protecting your rights and avoiding very costly missteps. This is why it is highly advisable to consult an experienced real estate litigation attorney to help preserve your rights and secure the best outcome possible in your situation. At MOWK Law, we can help with all your residential and commercial real estate issues, including handling a foreclosure situation. Our consultations are designed to answer all your questions and get your legal problems solved—get in touch with us today!