Foreclosure defense across New York State
What actually makes a New York foreclosure different
Your New York foreclosure case is decided by a judge, in the county where your home sits
New York is a judicial foreclosure state. Your lender cannot simply schedule a sale. It has to sue you in the State Supreme Court of the county where your property sits and prove its case in front of a judge. Venue follows the property, so a home in Suffolk is litigated in Suffolk County, a home in Erie County in Buffalo, and a home in the Bronx in Bronx County.
That single fact is the source of most of your leverage: a judge has to sign off before anything happens to your home, and a contested case commonly runs for years rather than months. There is also a second, faster way to stop a sale outright. Filing a bankruptcy petition triggers the federal automatic stay the moment the case is filed, which halts a scheduled foreclosure auction even if it is set for the next morning. Once the court signs an Order of Reference, the lender generally has one year to move for a Judgment of Foreclosure and Sale, and a case left to sit can be dismissed for neglect.
Deadlines you cannot miss, and one the bank can miss too
Before a foreclosure case on a home loan can even be filed, your lender must send you a 90-day notice under RPAPL 1304. It has to go by certified or registered mail and by first-class mail, to your last known address and to the property, in its own separate envelope, and it must list at least five housing counseling agencies that serve your county. Sending it correctly is a condition precedent to filing, so if the lender got it wrong, the case can be challenged. The lender has its own clock too: New York gives it six years to foreclose, and the Foreclosure Abuse Prevention Act (FAPA), effective December 2022, closed the loopholes lenders once used to restart that six-year statute of limitations, so a stale foreclosure can now be dismissed for good.
Once you are served with the summons and complaint, your time to appear is generally 20 days if you were handed the papers personally, or 30 days if you were served another way, and missing that deadline is how most homeowners lose by default. But there is a second chance almost nobody knows about: under CPLR 3408(m), if you show up at your first settlement conference without having answered, you are presumed to have a reasonable excuse and get 30 days to file an answer without waiving your defenses. Showing up matters.
What actually happens at a New York settlement conference
If the foreclosure is on a one-to-four family home you live in, New York law entitles you to a settlement conference under CPLR 3408. The court must hold it within 60 days after your lender files proof of service with the county clerk, and it mails you a notice with the date, time, and the part to appear in. Use the information listed on that notice, since it controls.
Both sides have obligations. Your lender must appear with a representative fully authorized to settle, bring the payment history and a payoff and reinstatement figure, and — if it denied you a modification — the denial letter and the actual data it used. Both sides must negotiate in good faith; if the court finds your lender did not, under CPLR 3408(j) it must at minimum stop interest, costs and fees from accruing during the delay, and it can impose a civil penalty of up to $25,000 and award you attorney's fees. Bring paystubs, two years of tax returns and property tax statements, two months of bank statements, a list of monthly expenses, and any lease or proof of rental income — and if you don't have everything, bring what you have and go anyway.
If you own a two-, three-, or four-family home, your case is different
Much of New York's owner-occupied housing is small multi-family, an owner living in one unit and renting the others, and that changes a foreclosure case in concrete ways. Start with coverage: New York's 90-day notice and mandatory settlement conference apply to “home loans” on one-to-four family dwellings occupied by the borrower as a principal residence. Living in one unit of a three-family generally keeps you inside those protections; a five-unit building, or one you don't live in, generally falls outside them.
Rental income is also part of the math. Both the statute and the county conference notices specifically list rental agreements and proof of rental income among the documents to bring. Your tenants' rent is income the court and servicer will count when testing whether a modified payment is affordable — which sometimes makes a workout achievable where a straight salary calculation would not.
Home equity changes the strategy, and attracts the wrong kind of help
Most New York homeowners in foreclosure are not underwater. After decades of appreciation across much of the state, many owners have real equity in their homes, and equity changes everything.
A homeowner with real equity has options an underwater homeowner does not: refinancing, a conventional sale on your own timeline, or a Chapter 13 plan that cures the arrears. It also means that if a property sells at auction for more than the judgment, the surplus is paid into court and may be available to the former owner after other lienholders are paid, and most counties calendar these surplus-money proceedings in a dedicated part. That same equity makes homeowners targets. New York's attorney general and local district attorneys warn that deed-theft and foreclosure-rescue scams cluster around equity-rich homeowners in distress, often seniors, immigrants, and homeowners in historically Black neighborhoods.
Before you sign anything with someone offering to save your home
New York law gives you specific, enforceable protections against foreclosure rescue schemes — and they exist precisely because equity-rich homeowners in distress get targeted. Under the Home Equity Theft Prevention Act, if someone is buying your home while it is in foreclosure, a deed under that contract cannot take effect until at least midnight of the fifth business day after signing, and you can cancel the contract until midnight of the fourteenth business day. The contract must carry a notice telling you the buyer cannot have you sign a deed before your cancellation right ends — and advising you to find your own attorney rather than one the buyer provides.
Separately, a “distressed property consultant” cannot take any money from you until the work is completely finished, and you can cancel that contract within five business days. If a deed was recorded against your property without your consent, report it to the New York State Attorney General and your local district attorney. You can also monitor your own record through your county clerk and free recorded-document alert services.
Answering or moving to dismiss the foreclosure complaint; opposing motions for summary judgment and judgment of foreclosure and sale; cross-moving for relief for the Defendant; opposing the referee’s computation; emergency orders to show cause and requests for a stay; and appeals to the Appellate Division, Second Department. New York’s judicial foreclosure system gives New York homeowners powerful defenses — standing challenges, statute of limitations, RPAPL 1304 notice defects, and lender bad-faith findings — that we know how to assert and win.
Modifications negotiated during New York Supreme Court mandatory settlement conferences at the start of a foreclosure; during Loss Mitigation efforts in participating Bankruptcy Courts (E.D.N.Y. has an active Loss Mitigation program); and in direct applications to mortgage lenders not directly related to ongoing court proceedings. A successful modification rolls arrears into a new principal balance with a fresh term and adjusted rate — turning years of catch-up payments into one manageable monthly payment.
Chapters 7, 11, 13, and Subchapter V, which have debt and income limits and apply in different situations. Chapter 13 is the workhorse for New York homeowners — it stops the foreclosure sale via the federal automatic stay and lets the homeowner cure mortgage arrears over a 3-to-5-year plan. Also includes adversary proceedings, contested motions, and bankruptcy appeals when lenders contest the case or seek to lift the stay.
Negotiating reinstatement and/or payoffs; deed-in-lieu agreements; consents to judgment; cash-for-keys arrangements; also includes voluntary sales, short sales, and refinancing. Many New York homeowners have more equity than they realize — a strategic sale or refinance, negotiated under the leverage of foreclosure defense, often produces a far better outcome than a sheriff’s sale.
Landlord-Tenant actions, surplus actions (recovering proceeds from a foreclosure sale that exceeded the debt), partition actions, and quiet title actions. We also defend post-foreclosure deficiency claims and prosecute affirmative claims against lenders, servicers, and bad-actor third parties. Foreclosure rarely starts and stops with one lawsuit — we handle every collateral matter that arises.
