Foreclosure is a type of lawsuit. In a foreclosure the holder of your mortgage asks a court to let them sell your house at auction in order to pay off your debt. If that happens, you could lose your home. The mortgage holder is often the bank that you borrowed the money from to buy the house, but it could be another bank or company that has taken over the mortgage. The mortgage holder will be the “plaintiff” in the lawsuit and you will be named as the “defendant.” You may not recognize the name of the plaintiff because you may be making payments to some other company that works for your lender called a “mortgage servicer.”
This section of the website tells you what to do in a New York State Supreme Court case after you get a foreclosure Summons and Complaint. If a foreclosure case has not been started yet, but you have missed mortgage payments or you have gotten an Acceleration letter from mortgage holder, it is very important that you seek help now.
Foreclosure Case Basics
The foreclosure process in Court takes about a year from when the plaintiff starts a case to the sale of the home. This section gives you a general idea of what can happen in a foreclosure case and links to other places where you can learn more.
- Summons and Complaint: The plaintiff mortgage holder starts a case against you with written legal papers called a Summons and Complaint. Copies of these papers are delivered to you, the defendant borrower. The plaintiff files the papers in the Supreme Court. Plaintiff also files a Lis Pendens in Court. This warns other people that there is a court case about your property. The Summons and Complaint tell you and the Court what the case is about and that you have to file an Answer. When you get the Summons and Complaint, you do not have to move out of our home. The Judge is the only one who can order you to move.
- Answer: The Answer is where you tell the Court and the plaintiff your side of the story. It is very important that you Answer the Summons and Complaint. If you don’t, the Judge can order a foreclosure judgment against you and you will lose your home.
- Settlement Conference: If the foreclosure is about your home where you live and there are no more than four living units, your case will have a settlement conference within 60 days after the plaintiff files proof of services and a RJI with the Court. If you and the plaintiff agree on a settlement, the case is over.
- Discovery, Evidence, Trial: If the case is not settled at the conference, and you filed an Answer, the case then follows the basics steps of a court case. But, the plaintiff can ask the court for summary judgment if it thinks you do not have a good defense to losing your home.
- Foreclosure Judgment: If a Judge orders the foreclosure and sale of your home, it will be sold at an auction sale at the courthouse. You can stop the sale up until the auction by paying the money. The plaintiff can get a judgment of foreclosure after a trial, or after a summary judgment motion or a motion for a default judgment.
During the case, if you or the plaintiff want to ask the Judge for something in the case, this is done by filing motion papers or an order to show cause. For example, you might make a motion to let you file a late answer, or vacate a default judgment. The plaintiff might make a motion for summary judgment that you will need to answer.
See this flowchart on the Paths of a Foreclosure in New York State.
Answering the Complaint
If you got a Summons and Complaint, you need to deliver a written Answer form to the plaintiff and the Court. Your Answer is what you tell the court about what the plaintiff said in the Complaint. The Answer tells the court your defenses or reasons the plaintiff must not win the case.
The easiest way to make your Answer is to use the Foreclosure Answer DIY (Do-It-Yourself) Form program. This online program walks you step-by-step through the paperwork you need to complete, explains defenses and gives you helpful definitions and legal information. When you finish the program you get the court forms you need and instructions of what to do next.
If you can’t use the DIY Form computer program you can print paper forms and fill them out by hand. If you are not sure that everything said in the Complaint is true, your Answer should say, “General Denial” at the beginning. After the General Denial, your answer form should say any defense or explanation that you might have. It is very important to write down any defenses you want to tell the court. If you do not put a defense in your answer you may not be allowed to talk about it later in the case. You may also make a counterclaim in your Answer.
If the complaint has a Verification at the end of it, this means that the plaintiff swore that the complaint is true. If there is a verification you should make a verified Answer. You do this by signing the Answer in front of a notary public. If you got an E-filing Notice with the court papers, this mean that you can serve and file your Answer over the internet using NYSCEF, the New York State Courts Electronic Filing system. Read about E-filing to see if this is something you want to do. If not, you can file your Answer in the same court where the case was started.
To serve the plaintiff with a copy of your Answer have someone 18 or older (not you and not involved in the case) mail or deliver a copy to the plaintiff’s lawyer. The person who does this for you must fill out an Affidavit of Service form. Then, make sure you file this proof of service form with the Court and keep a copy for yourself.
When to Answer/2nd Chance to Answer-The time to Answer the Summons and Complaint is either 20 or 30 days, depending on how you got the papers:
- 20 days – if the Summons was given to you by personal (in hand) delivery
- 30 days – if the Summons was given to you in any other way.
The time period includes weekends and holidays. If you don’t Answer in time, but you attend the first Settlement Conference, you get a 2nd chance to answer the complaint. Your time to Answer is extended for an additional 30 days after the first conference. You do not have to make a motion to file a late Answer.
What Happens if you Don’t Answer- If you don’t Answer, the plaintiff can get a default judgment against you and you can lose your home. This can happen even if you attend the Settlement Conference. If you don’t Answer, the Court will not consider any defenses to the foreclosure that you have. You also may not get any future notices from the Court about what is going on in your case. Your house may be sold without you knowing it. If you don’t want to defend the foreclosure, but want to get notices of what is happening, you can file a Notice of Appearance form with the Court.
Filing a Late Answer– If your time to Answer has run out, ask the plaintiff to agree to let you file a late Answer. If the plaintiff says no, you can ask the Court by making a Motion or an Order to Show Cause. When you do, ask the Court to stop the rest of the case until the Judge decides if you can file an Answer. Attach a copy of the Answer you would file if the Court says yes. Read How to Ask the Court for Something to learn about Motions and Orders to Show Cause.
Foreclosure Settlement Conferences
The Court mails you a date, time and place for a settlement conference. The Court date is sometime during the first two months after the plaintiff files proof of service and a RJI. A settlement conference is a meeting between you, someone from the Court (a Judge, Court Attorney, or Court Referee), and the plaintiff. The meeting is to talk about your case and to see if your foreclosure can be resolved. For example, you might see if the terms of the loan can be changed so you can afford to pay each month. Read the law: CPLR 3408.
Even if you go to the settlement conference you still need to Answer the Summons and Complaint. If you go to the first settlement conference, you have an extra 30 days to file your Answer.
Getting Ready– It is important to prepare for the settlement conference. Meet with a free Housing Counselor. Find one here, in New York City, call 311. Try to figure out your budget and what you can afford to pay. This way you have the best chance of saving your home.
You must bring copies of your financial papers to the conference, like pay stubs, benefits information, list of monthly expenses, mortgage statement, proof of any rental income, property tax statements, income tax return, proposals to change your loan terms, and any information about attempts to work out a settlement before. Go to the conference even if you have not prepared.
The Settlement Conference– Get to the court early because you may have to wait on a line to go through security. Listen for your name to be called. At the first settlement conference, if you have not filed an Answer, the court will explain that you have an additional 30 days to Answer the Summons and Complaint. You can use the free and easy online Foreclosure Answer DIY Form program to make your Answer. Or you can use a paper form. At the conference the court will give you an information packet containing an information sheet about Answering a Foreclosure Complaint, an Answer Form, an Affidavit of Service, a Consumer Bill of Rights, A Foreclosure Case Flow Chart, and a list of foreclosure resources.
You and the plaintiff will talk with the court about settlement options, like paying the money owed over time, changing loan terms, selling at a short sale or agreeing to a deed in lieu of foreclosure. See Avoiding Foreclosure (Loss Mitigation). Plaintiff must bring copies of the mortgage and note, loan modification forms, a description of other loss mitigation options (alternatives to foreclosure), a copy of the Pooling and Service Agreement if there are investor restrictions, a list of missing documents, and any denial letters, to the conference.
If you and the plaintiff work out a settlement, it will be put in writing and signed by everyone and the case will be over. Read more about Settlements. If you don’t settle the case, you may get a new date to come back to court to continue the settlement conference. This may happen a few times.
If you filed an Answer and you and the plaintiff do not work out a settlement, the case is not over. You and the other side start Discovery. You and the plaintiff may work out a time line to exchange information. If you don’t file an Answer within 30 days of the first settlement conference and you can’t settle the case, the plaintiff can get a default judgment against you and you can lose your home.
There are three ways the plaintiff can get a judgment of foreclosure and sale: 1) after the defendant defaults by not answering the Summons and Complaint, 2) after winning a summary judgment motion, or 3) after winning a trial.
Before the Judge signs the judgment of foreclosure and sale, the Judge signs an Order of Reference. The Order of Reference sends the case to a Referee to add up the total amount that plaintiff is owed under the terms of the mortgage. This amount includes principal, interest, late charges, foreclosure fees and costs. After the Referee reports his or her findings to the Judge, the plaintiff asks the court to enter a judgment of foreclosure and sale.
The Sale– After the Judge signs a judgment of foreclosure and sale, your home will be sold by the Referee at an auction sale at the courthouse to the highest bidder. The plaintiff puts a notice about the auction in a newspaper at least 30 days before the auction date. If you did not file an Answer or a Notice of Appearance, the plaintiff does not have to tell you about the auction.
You can stop the sale at any time up until your home is sold if you come up with the money owed to the plaintiff. This is called the Right of Redemption. You can also ask the court to stop the sale by making an Order to Show Cause. But once the sale is complete, you lose your home. You will get notice of when you have to move out.
The sale price may be more than the debt you owe. This is called a surplus. You can apply to the Court to get the surplus monies back. Speak to the Clerk or visit a Court Help Center. The sale price may be less than the amount you owe. This is called a deficiency.
Asking the Court to Stop the Sale– You can ask the Court to stop the sale by making an Order to Show Cause. If you defaulted by never filing an Answer to the Summons and Complaint, you can ask the court to vacate (cancel) the default judgment and let you file an Answer if you have defenses to the foreclosure..
You can ask the Court to stop the sale by making an Order to Show Cause if you have a good reason, like:
- You have the money owed
- You are in the middle of refinancing your home with a loan that will cover the mortgage and other costs
- You have found a buyer for your home and have an offer for a sale
- You have filed for bankruptcy
The Order to Show Cause to stop the sale should ask the Court to stay the sale until the Judge makes a decision. Read How to Ask the Court for Something.
Remember! You can try to contact the plaintiff to see if your loan can be modified up until your home is sold. This is especially important if things have changed, like you got a new job or you no longer have big medical expenses, and you think you will be able to pay the mortgage off over time. Use the Foreclosure Resources to contact someone to help you.
There are many free or low-cost services for homeowners in distress. Meeting with a lawyer or financial/housing counseling service will help you:
- better understand your rights and the legal process
- learn what options may be available to save your home
- decide what is best for you
Important! Beware of Loan Modification scammers. Use the resources below to find trustworthy service providers in your area and learn how to protect your home and avoid foreclosure.
Find information fact sheets for before, during and after foreclosure.
HUD provides a list of free or low cost trained and approved Housing Counseling Agencies. Search for one near you.
LawHelp provides information for New Yorkers who cannot afford a lawyer. Find information about your rights, going to court and how to find a free or low-cost lawyer.
This interactive guide walks you through every stage of the foreclosure process so you can do your best to prevent the loss of your home.
Information on rights, resources and legal assistance for people who live in Bronx, Brooklyn, Manhattan, Queens or Staten Island.
Find information to help you throughout the foreclosure process, like tips to avoid foreclosure, what you’ll need to prepare to talk to the lender, and different options you can consider.
For information on serving legal papers, contact undisputedlegal.com or (212) 203-8001. Representative are ready to assist you, we serve all legal papers, call now!