Legally reviewed by Allen A. Kolber, Esq. - The Law Offices of Allen A. Kolber, Esq., P.C.
Key Takeaways
- You have 20 days to respond if served personally in New York, 30 days otherwise.
- Missing that deadline lets the bank win by default, with no trial and no hearing.
- Ignoring the papers does not buy time; it forfeits your settlement conference and your defences.
- The strongest defence is that the bank suing you may not own your mortgage.
No one wants to lose their home because they can no longer afford to make payments on it. Of course, this can be devastating. However, this does not have to be the case. Filing for bankruptcy when you cannot make mortgage payments will result in the issuance of the automatic stay, which halts the foreclosure process. This allows you time to catch up on or restructure payments, rather than ending the case outright. If you are being sued by a mortgage lender, it is important to speak to an attorney. Our legal team can help answer the lender on your behalf and also serve a Notice of Appearance. In addition, we will help look for defenses that can help you keep your home. Not only that, we will prepare to answer any counterclaims that the lender tries to bring. There may be some situations where the lender that is suing you doesn’t even own your mortgage.
How Long Do I Have to Respond?
A foreclosure is a lawsuit like any other, and the clock will begin the moment you are served. Once you are served, you have 20 days to appear if you were personally handed the papers in New York, and 30 days if service was completed any other way. Missing that window means the bank can pursue a default judgment against you, meaning it does not have to argue at a hearing or trial that it is entitled to your home.
Bad Advice Worth Ignoring
Many are under the false impression that ignoring papers will result in more time to figure out a plan. However, this is far from the truth. Doing nothing until the sale is scheduled and then proceeding to court in the hopes the judge is sympathetic is rarely effective. In the event the judge takes pity, they will typically only grant your new attorney a few weeks to prepare, rather than reopening your case. As such, this is not the ideal method to defend a home.
What You Give Up by Not Answering
Failing to appear can cost more than the argument itself. Once you appear, the bank and the court are required to send notices to you or your attorney. Failure to appear means several things will happen without your participation or knowledge:
- You may not receive notice of settlement conferences, hearings, motions, or the final judgment
- You can waive your right to the mandatory settlement conference, which is where a loan modification is normally negotiated
- You lose the defenses you never raised, including the strongest one
- You give up discovery, and with it the right to make the bank produce your full payment history and its charges for taxes, insurance, fees, and penalties
- Once judgment is entered, the bank need not notify you of the auction date
What Are Possible Defenses I Might Be Able to Raise?
You are able to issue a defense to the lawsuit in your answer, which is one of the reasons the deadline is so important. The most commonly raised defenses in New York include the following:
The Bank May Not Own Your Mortgage
Mortgages are constantly sold and repackaged, and the entity pursuing a claim against you may not be the one holding your note. This is a standing defense, and often the strongest one available. If you leave it out of your response, you typically lose the right to raise it at all.
The 90-Day Notice May Have Been Defective
Before initiating a foreclosure on a home loan, lenders must send a specific, pre-foreclosure notice at least 90 days in advance, via certified or registered mail and by first-class mail, addressed to each individual borrower.
Courts treat compliance as a condition of raising the case at all. As such, if the mailing or the contents are incorrect, the case may be dismissed.
Service or the Numbers May Be Incorrect
The summons and complaint have to be served properly, and the amount the bank claims you owe has to be right. Both are worth checking rather than assuming.
Our firm is prepared to help determine whether you can participate in a loan modification program that can require the bank to reduce your monthly payments and interest rate so the mortgage becomes affordable once again. If you are concerned about your mortgage or have received a letter from the lender about a lawsuit, contact our firm today. We are here to help.
Contact an Experienced New York Bankruptcy Attorney Today
At the Law Offices of Allen A. Kolber, Esq., P.C., we understand how difficult it can be to learn that a lender has filed a foreclosure lawsuit against you. As such, our dedicated team is ready to represent you during these difficult times. We are committed to helping you navigate these complex times so you can fight for the best possible outcome for your circumstances. Contact us today to learn how we can represent you.
