Foreclosure Defense – Nassau & Suffolk Counties, Long Island
Foreclosure Defense uses litigation strategies to allow homeowners to assert their rights and oppose a foreclosure proceeding.
It is important for homeowners in foreclosure to defend the foreclosure in order to avoid default and to assert rights which otherwise may be effectively lost or “waived”. The homeowner’s defense causes the foreclosure to become contested litigation that will take longer and be more difficult for the mortgage holder. The goal of the homeowner is usually to have more time and leverage in seeking a resolution with their mortgage holder.
Our law firm can represent you right from the start by answering the initial summons and complaint. Considering that 20-30 days from the date of service an answer and/or motion to dismiss is due, it is imperative to file a timely response. Such answer is one out of several documents that are usually filed as part of a foreclosure defense. Other documents include a notice of appearance, discovery demands, a motion to dismiss, if applicable, and a response to a motion for summary judgment.
a) The Answer – 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, such Answer, as prepared by the Law Office of Ronald D. Weiss, P.C. is extensive with many detailed and fact specific affirmative defenses and counter claims that are 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 with issues such as: standing, “robo-signing”, “dual tracking”, predatory lending, documentation, notice, service, waiver and estoppel, fraud, and modification issues. Counterclaims seek to bring claims for damages based on the defendant’s allegations that the plaintiff has caused injury to the defendant and/or based on statutory violations. The defenses and counterclaims, asserted on behalf of each client, by the Law Office of Ronald D. Weiss, P.C. are based on each client’s unique facts and situation. The complaint and answer together are called the “pleadings” and when the defendant answers, the pleadings are considered to be “joined”, thereby creating a contested foreclosure.
b) Discovery – Since most of the information and documents in a foreclosure action are in the control of the lender, the homeowner as the defendant in a foreclosure action, needs to obtain, if possible such information and documents through discovery. Therefore, the Law Office of Ronald D. Weiss, P.C. serves extensive discovery demands on the plaintiff-lender’s attorneys, in an effort to bolster the client’s defenses. The lender’s attorneys do not always fully comply with such discovery demands. If they completely disregard the discovery demands, the lender’s attorneys would have trouble continuing their foreclosure action with a motion for summary judgment, since a clear defense to such a motion would be their disregard of discovery. Also, the defendant would be able to make its own motion to compel discovery. More often, however, the lender’s attorneys only partially comply, relying on many objections to excuse their lack of full compliance. The defendant would still have the same options, although it would need to more clearly show that the lender’s objections lack merit. While it is usually our office that asks for discovery, sometimes the lender’s attorney may ask us for discovery, but this is often meant more to burden us and to cover for the fact that the lender is not in full compliance with discovery.
c) The Notice of Appearance - Unlike some other law offices that just file a “boiler plate” answers to the foreclosure complaints, we file a notice of appearance in the foreclosure action which designates us to be the attorneys of record for the entire action. Without an attorney’s notice of appearance, you would still remain a pro se litigant (or without an official attorney of record) and be disadvantaged in not having legal counsel for the rest of the foreclosure action that continues well past the initial pleadings.
d) Settlement Conferences – An important part of foreclosure defense is attending Foreclosure Settlement Conferences, which are court conferences where home owners and their attorneys can confer with the lender’s attorneys about possible settlement and modification. Attendance and representation and submission of documents at such conferences can allow a client to obtain time, leverage, and possible modification. For such settlement conferences to be effective it is necessary for the defendant and/or their attorney attend and comply with documents requested by the lender’s attorney. While such conferences do not constitute true loan modification negotiations, in the sense that loan modifications are supposed to be directly with the lender itself, the discussions at the foreclosure settlement conferences help pressure the lender into looking into non-foreclosure options. The first foreclosure conference usually results in the each party’s attorneys introducing themselves and making sure that the court clerk or magistrate conducting the conferences had noted their appearances and their desire to reach a non-foreclosure alternative through negotiations. The conference is adjourned for 2-3 months with the lenders attorney asking to be forwarded documents from any ongoing modification effort by the defendant or their attorneys. Conferences, if regularly attended, can add pressure on the lender and their attorneys to reach a resolution and can add significant time to the foreclosure proceeding. If a conference is missed by the defendant or their attorneys, or if after several conference there appears to be no settlement at hand, the court will stop adjourning the conferences and reference the action to the regular foreclosure part of the court where the litigation can continue. Because conferences do give defendants a better chance of obtaining a modification and slow down the foreclosure proceedings, they are useful to a defendant and should be attended.
e) Motion Practice by the Defendant – The homeowner defending a foreclosure is often able to file motions where appropriate, with the following possibilities: i) Motions to dismiss – there are jurisdictional and meritorious defenses to the complaint, such as defective service and lack of standing, that need to be or could be asserted right from the start by the defendant to potentially dismiss the action. ii) Motions to extend time to answer – where the defendant is outside the 20-30 day time to answer and can not obtain a consensual extension from the plaintiff’s attorneys, a motion to extend the time to answer can be made to show reasonable excuse and a meritorious defense to justify an extension. iii) Motions to amend the answer – where time has passed since the defendant has timely filed its answer, but the defendant wishes to supplement or enhance their answer, a motion to amend can be made where the amendment does not create prejudice to the plaintiff. iv) Motions to compel discovery – where the plaintiff has failed for a considerable period of time to comply with the defendant’s discovery demands, the defendant may seek by letter to demand and warn the plaintiff that it must produce the desired documents and if they are not produced the defendant can seek relief from the court with a motion to compel. v) Motions to dismiss based on lack of prosecution – where there has been inactivity in a case for a considerable period of time, the defendant may warn the plaintiff and then move to dismiss based on lack of prosecution. vi) Motion for summary judgment – where a defendant believes that it can prevail in a foreclosure action based on the legal arguments alone and depend on undisputed facts, it can move for summary judgment in favor of the defendant, especially in situations where the defendant asserts counterclaims against the plaintiff. Motion practice by the defendant is not always necessary, and in many cases the defendant does not wish to increase the costs of litigation and is willing to buy time in the foreclosure action and will therefore avoid bringing matters in front of the court, unless absolutely necessary.
f) Motion Practice by the Plaintiff – Motion practice is more typically brought by the plaintiff, since the plaintiff has a greater incentive to move the foreclosure action forward. A plaintiff sometimes like a defendant, may seek discovery and may move to compel discovery, where it is not forthcoming, however, because the plaintiff, as the lender, is usually is in control of most of the documents and information in the foreclosure action, the plaintiff usually prefers to avoid getting bogged down with discovery. Therefore, where the defendant has failed to file a timely answer, the plaintiff may move to obtain an Order of Reference which appoints a referee to the action to compute the funds owed to the plaintiff and to ultimately sell the property subject to foreclosure. Where the defendant has answered on a timely basis, the plaintiff would make a motion seeking Summary Judgment, which is usually a lengthy and well documented effort to show that there is no merit to the defendant’s defenses and that the case should be decided in favor of the plaintiff. The defendant needs to oppose the Motion for Summary Judgment by showing that there is merit to its defenses and sufficient doubt or ambiguity so that the court may deny the plaintiff’s motion. Assuming that the plaintiff prevails on either of these motions, it would then seek to move for a Judgment of Foreclosure and Sale, which would allow the plaintiff to sell the mortgaged property. However, if the defendant prevails, the foreclosure action would be delayed and may be difficult to continue.
g) Emergency Orders to Show Cause – If you have been in a foreclosure proceeding for an extended period of time and/or if there is a foreclosure sale presently scheduled for your property, you may need to act immediately since time is of the essence. One way of quickly obtaining relief in State Supreme Court is to retain an attorney to file an Emergency Order to Show Cause to either: i) stay the foreclosure sale, ii) to vacate the judgment of foreclosure and sale, and/or iii) to extend the defendant’s time to answer. An Order to Show Cause not only asks the Court to immediately schedule an expedited hearing as to the requested relief, but it also asks the Court to stay foreclosure proceedings, including a foreclosure sale date pending the hearing and decision of the Court as to the Order to Show Cause. If you are in an emergency situation or wish to oppose the foreclosure proceeding despite not participating in opposing the action earlier, please make reference to the Section dealing with “Orders to Show Cause” and please contact us to discuss your options.
h) The Potential Benefits of Foreclosure Defense and the Role of Our Law Office - Defending the foreclosure action allows you the opportunity to assert any defenses, either technical or substantive, involving the foreclosure proceeding, the mortgage holder’s conduct and/or any issues that involve the mortgage itself. Unless these defenses are timely asserted, there is a risk that such defenses may be waived or lost to the defendant. Legal defenses can delay the foreclosure proceeding and allow more time to explore alternative solutions, and potentially threaten the dismissal of the foreclosure action. Many times, our firm can identify possible issues that would create a strong defense and threaten the dismissal of the foreclosure action. The best chance you have for success is to retain the services of our law firm immediately upon initiation of a foreclosure proceeding. Even if you think it is too late, it may not be. We may, if needed, make a motion to extend the time to file an answer in certain situations where the time has expired.
We initially file customized, detailed and comprehensive answers with counterclaims, as well as discovery demands and a notice of appearance in the foreclosure action. Even if you are past the 20-30 days available to answer after receipt of service of the Summons and Complaint, the Law Office of Ronald D. Weiss P.C. can move to enlarge such time under appropriate circumstances. We attend foreclosure conferences on your behalf and help coordinate the discussions and the documents given to the plaintiff’s attorneys at such conferences. As the foreclosure litigation progresses the Plaintiff’s other papers, including the Motion for Summary Judgment, can be opposed by our office. Moreover, even when the foreclosure proceeding is nearing an end, there are still available options such as preparing an Order to Show Cause in an attempt to stay the foreclosure sale and/or the transfer of the deed. If you are considering defending the foreclosure litigation, you need representation from a law firm, like the Law Office of Ronald D. Weiss, P.C. that is dedicated to this area of practice.
Foreclosure Defense can be involved and lengthy and requires special knowledge and expertise. The Law Office of Ronald D. Weiss, P.C. regularly represents its Long Island and New York clients in Foreclosure cases before the Supreme Court for the State of New York in both Suffolk County and Nassau County and can review with you issues relevant to defending your home from foreclosure.
Our consultations are free, the advice may be invaluable.
Please call us at (631) 479-2455, or e-mail us at weiss@ny-bankruptcy.com for a free consultation with an attorney, at our Melville, Long Island law office to discuss Foreclosure Defense options in greater detail.
