Long Island & NYC
Foreclosure Defense Lawyer

The plaintiff’s complaint and defendant’s answer together are called the “pleadings.” When the defendant answers, the pleadings are considered to be “joined,” thereby creating a contested foreclosure. Timing is important in foreclosure defense since by law the homeowner is given only a short time — 20 to 30 days, depending on the method of service — to respond to a Summons & Complaint with an Answer and/or a Motion to Dismiss, which are formal legal documents, usually prepared by an attorney.

Because mortgage lending and foreclosures are heavily regulated and subject to many laws and new requirements, the Answer as prepared by the Law Office of Ronald D. Weiss, P.C. is extensive, with many detailed and fact-specific affirmative defenses and counterclaims customized to each client’s specific case. Affirmative defenses seek to protect the client by challenging the technical and substantive grounds of the foreclosure action — issues such as standing, “robo-signing,” “dual tracking,” predatory lending, documentation, notice, service, waiver and estoppel, fraud, statute of limitations, and modification/negotiation issues. Counterclaims seek damages based on injury the plaintiff caused the defendant and/or on statutory violations.

Attendance, representation, and submission of documents at such conferences can allow a client to obtain time, leverage, and a possible modification. While these conferences do not constitute true loan-modification negotiations — modifications are supposed to be directly with the lender itself — the discussions help pressure the lender into looking into non-foreclosure options. The first conference usually results in each party’s attorneys introducing themselves and confirming their desire to reach a non-foreclosure alternative, and the matter is adjourned for 1–2 months with the lender’s attorney asking to be forwarded documents from any ongoing modification effort.

Conferences, if regularly attended, can add pressure on the lender to reach a resolution and add significant time to the proceeding. If a conference is missed, or if after several conferences there is no settlement at hand, the court will stop adjourning and reference the action to the regular foreclosure part, where the litigation continues. By retaining skilled foreclosure defense lawyers, the defendant maximizes their opportunities at these conferences to obtain a potential resolution and/or better leverage for more time.

Because the lender usually controls most of the documents and information, it prefers to avoid getting bogged down in discovery. Where the defendant fails to file a timely answer, the plaintiff may move for an Order of Reference, which appoints a referee to compute the funds owed and ultimately sell the property; the defendant’s attorney would oppose and cross-move to extend the time to answer. Where the defendant has answered timely, the plaintiff moves for Summary Judgment — usually a lengthy, well-documented effort to show there is no merit to the defenses.

The defendant opposes by showing there is merit to its defenses and sufficient doubt or ambiguity that the court may deny the motion. Skilled defense attorneys carefully go through the exhibits to the summary-judgment motion and the discovery to support the assertion that there are material issues of fact or law in dispute — and can often show that discovery is still needed before any decision.

Assuming the plaintiff prevails on its motion for an order of reference or summary judgment, it next moves for a Judgment of Foreclosure and Sale — a more procedural motion showing that all requirements are met and the fees and costs are fair. But if the defendant prevails on either of the two main motions, the action is delayed, with the court requiring additional evidence and making the foreclosure difficult to continue. Between these two motions the plaintiff typically serves a Notice of Computation, which can itself be opposed and challenged — potentially requiring a referee hearing and giving the defendant additional time and leverage. Defendants can cause a foreclosure to continue for at least several years where they vigorously defend the litigation while seeking to resolve it through a modification, short pay, short sale, or other agreement.

Federal foreclosure litigation. Some cases proceed in the federal district court, or in the bankruptcy court where a mortgage/foreclosure issue is raised in objecting to a mortgage holder’s claim. The basis of federal jurisdiction is either diversity jurisdiction — often present between lender and borrower — or subject-matter jurisdiction over matters like the RESPA and TILA consumer-protection statutes and the Fair Debt Collection Practices Act. Pursuing federal litigation offers a fresh forum, but to the extent it seeks to re-litigate issues that were or could have been raised in state court, it may be blocked under the Rooker-Feldman doctrine.

The COVID-19 moratorium. Moratoriums imposed by the New York governor, the state court system, and FHA temporarily shut down the ability of lenders to foreclose; the courts now require a hearing to determine that a defendant is not facing COVID-related hardship before a case may go forward. During the New York moratorium (March 2020 until January 15, 2022), affected borrowers could file a COVID Hardship Form, and New York passed a forbearance statute — Banking Law §9-x — requiring forbearance up to 180 days, with options at the end of the period to extend the loan term, adopt a payment plan, modify, or defer the arrears to the end of the loan.