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DIVORCE

 

 

LANDLORD

TENANT

CLOSINGS

REAL ESTATE

 

-FORECLOSURE-

1 – If served with a Summons/Complaint DO NOT LET TIME PASS. You MUST answer the Complaint ON TIME, or else a Default Judgment WILL/MAY be taken against you (the Banks may negotiate or offer a modification while YOU let the time pass, THEN they can/will take a DEFAULT JUDGMENT and be able to sell your home without you being heard by the Court.)

2- Even though you may not have paid your Mortgage, you can still FIGHT the foreclosure AND stay in your house for a long time, EVEN FOR YEARS, while you cannot afford the Mortgage and while your case is pending

3- The borrower must file an Answer to the bank’s summons and complaint!!!!!! The borrower usually has 20-30 days to file the Answer. depending on the way service was effected.  Failure to do so would place the borrower in default. We cannot  emphasize the importance of filing a timely Answer. This is the most important step and we can assist you in filing your Answer.

4- Within 60 days of filing the affidavit of service, the court must hold a settlement conference to see if both parties, the bank and homeowner, can come to a mutual resolution in the foreclosure process. The homeowner will receive a notice of the settlement conference from the court. This settlement conference is held before a referee (court attorney), not a judge.

5- The settlement may result a re-instatement, forbearance or mortgage modification.

 

6- If parties reach a resolution the lender will file a discontinuance of the action.

 

7- If settlement is not reached the case will move forward to motion practice or trial.

 

8- The discovery phase of the process will then commence. Discovery is a process that permits both parties to request documents and statements from each other.

 

9- There are a great number of technical defenses, which must be made in your answer, otherwise they may be waived, and these defenses may save your home. Some of those defenses include:

a. Standing, the right of the bank to bring lawsuit.

b. RPAPL 1304 notice requirements.

c. Proper service of the Summons and Complaint etc.

 

You have a right to compel the bank to answer questions under oath, and their responses can be used against them in Court.

-THE FORECLOSURE PROCESS-

New York State law requires the mortgage loan servicer to send the borrower a notice at least 90 days before the filing of a foreclosure summons and complaint. The notice lists at least 5 nonprofit housing counseling agencies located near the borrower.

A foreclosure is a lawsuit that the lender files against a homeowner in the Supreme Court of New York where the property is located. New York is a judicial foreclosure state, which means that the lender must sue the homeowner to enforce their rights under the mortgage and note.

The bank begins the foreclosure lawsuit by filing a summons and complaint and a lis pendens in the county clerk office which puts the public on notice that the subject property is subject to a lawsuit.

The bank then files an Affidavit of Service with the court which states how it served the homeowner. The lender must also file a Request for Judicial Intervention (“RJI”) with the court. This notifies the court that it must schedule a mandatory settlement conference.

The borrower must file an Answer to the bank’s summons and complaint!!!!!! The borrower usually has 20-30 days to file the Answer. depending on the way service was effected.  Failure to do so would place the borrower in default. We cannot  emphasize the importance of filing a timely Answer. This is the most important step and we can assist you in filing your Answer.

Within 60 days of filing the affidavit of service, the court must hold a settlement conference to see if both parties, the bank and homeowner, can come to a mutual resolution in the foreclosure process. The homeowner will receive a notice of the settlement conference from the court. This settlement conference is held before a referee (court attorney), not a judge!

The settlement may result a re-instatement, forbearance or mortgage modification.

If parties reach a resolution the lender will file a discontinuance of the action.

If settlement is not reached the case will move forward to motion practice or trial.

The discovery phase of the process will then commence. Discovery is a process that permits both parties to request documents and statements from each other

The bank may make a motion for Summary Judgment. If granted, the bank will then move for Judgment of Foreclosure and Sale. After the judge signs the Judgment of Foreclosure and Sale, the bank then will publish a notice about the auction in a newspaper at least 30 days before the auction date (if the homeowner filed a notice of appearance).

It is important to prepare the Answer on time, and not rush and miss crucial defenses.

Please contact us.