In most cases, homeowners should know that a foreclosure action is coming, as they hopefully received proper notice of default by their lenders as required under New York Real Property Actions & Proceedings Law (RPAPL) 1304. At this time, some homeowners seek legal assistance from a foreclosure defense attorney to try to negotiate a loan modification or another solution with their lender. Other homeowners simply wait and eventually receive a summons and complaint for a foreclosure action in New York civil court.
What do you do next? Depending on how they served the complaint, you will either have 20 or 30 days to file an answer to the complaint with the proper court.
Don’t waste any time, however. Contact a foreclosure defense law firm as soon as you receive a summons, if you haven’t done so already. Twenty or 30 days is not a lot of time, and ignoring the summons and complaint can result in a default judgment against you and a court-ordered foreclosure of your property.
Also, you want to properly answer the complaint, as failing to do so can cause unexpected limitations for you down the road. An answer usually includes a general denial of the plaintiff’s claims, as well as any counterclaims you want to file or a motion to dismiss the action. Most importantly, your answer or motion to dismiss must contain certain legal defenses you want to assert. If you fail to include all relevant defenses in the initial answer, you may waive your right to raise those defenses at a later time, significantly weakening your position in your case.
Under New York Civil Practice Law & Rules (CPLR) 3211(e), you will waive certain defenses “unless raised either by such motion or in the responsive pleading.” A qualified foreclosure defense attorney will know how to identify every defense you should include in your answer and how to file the answer and accompanying motion to dismiss with the court in the necessary timeframe.
When a defendant fails to answer a foreclosure action, the plaintiff may seek a default judgment. However, at a later time, the defendant may realize that the plaintiff has not demonstrated sufficient evidence to prove standing to bring the foreclosure action. If the defendant comes forward and files a motion to dismiss, the plaintiff will often object to the motion on the grounds that the defendant failed to answer and, therefore, waived the right to bring this defense. Is this a valid argument?
Fortunately for homeowners, New York courts have ruled this is not a valid argument against a standing defense.
New York case law indicates that a waiver of the right to bring certain defense only takes place when the defendant files an answer to the summons and complaint that does not contain those defenses. Two such cases include Citigroup Global Markets Realty Corp. v. Randolph Bowling ( 25 Misc.3d 1244(A), 2009 WL 4893940 (N.Y.Sup.)) and Deutsche Bank Nat. Trust Co. v. McRae (27 Misc.3d 247, 894 N.Y.S.2d 720, 2010 N.Y. Slip Op. 20020). The court ruled in Deutsche Bank that:
“Although recent decisions by the Second Department have held that a defendant waives standing where it is not raised in the answer or pre-answer motion to dismiss (see, Wells Fargo Bank Minn. V. Mastropaolo, 42 A.D. 3d 239, 244, 837 N.Y.S. 2d 247 [2nd Dept. 2007]; HSBC Bank USA v. Dammond, 59 A.D.3d 679, 680, 875 N.Y.S.2d 490 [2nd Dept.2009]; Countrywide Home Loans, Inc. v. Delphonse, 64 A.D.3d 624, 625, 883 N.Y.S.2d 135 [2nd Dept.2009])), those cases are distinguishable. In both Mastropaolo and Delphonse, the defendants filed answers containing either counterclaims or affirmative defenses without asserting a standing defense [see, Mastropaolo 42 A.D. 3d at 240, 837 N.Y.S. 2d 247; Delphonse, 64 A.D. 3d at 625, 883 N.Y.S. 2d 135]. In so doing, the defendants acknowledged that the plaintiff was a proper party for the prosecution of these foreclosure actions. By stark contrast, the Defendant has not appeared or filed an answer and therefore has not waived the right to challenge Plaintiff’s standing….” [Emphasis added.]
Without the right foreclosure defense representation, many homeowners may not know they can still raise certain defenses if they failed to file an answer, as this is a complex issue of law in New York.
Sometimes, a homeowner will fail to answer a summons and complaint because no one properly served them, so they had no knowledge of the foreclosure filing. A homeowner who later learns of a default judgment can file a motion to dismiss the action under NY CPLR 5015 based on a lack of personal jurisdiction, as personal jurisdiction requires proper service of the summons and complaint.
A successful motion to dismiss, however, requires more than the mere assertion of a lack of service. Bank of N.Y. Mellon v. Marolda, 2016 N.Y. Slip Op. 03692 is only one of many cases to state that:
The mere denial of receipt of the summons and complaint, without more, is insufficient to rebut the presumption of proper service…. Further, a hearing to determine the validity of service is not required where the defendant fails to swear to specific facts rebutting the statements in the process server’s affidavit.
However, with the help of a skilled attorney, you can assert probative facts that successfully prove the lack of proper service and the need for a hearing, such as in Bank of Am., N.A. v Diaz, 2018 NY Slip Op 02421. Consider the court’s analysis in that case finding factual questions regarding service:
While a proper affidavit of service attesting to personal delivery upon a defendant is prima facie evidence of proper service, “a sworn nonconclusory denial of service by a defendant is sufficient to dispute the veracity or content of the affidavit, requiring a traverse hearing” (NYCTL 1998-1 Trust & Bank of N.Y. v Rabinowitz, 7 AD3d 459, 460 [1st Dept 2004]; Wells Fargo Bank, N.A. v Jones, 139 AD3d 520, 523 [1st Dept 2016]). In the instant matter, the affidavit of service indicates that personal service was made on May 26, 2009 at approximately 8:52 pm “at” 1509 East 172nd Street in the Bronx (the 1509 East address). The affidavit provides a description of the person served and indicates that “recipient signed for papers.” The description is consistent with defendant’s appearance. However, plaintiff does not offer a copy of the summons and complaint, or any other document, that contains the signature of the person allegedly served.
In response, defendant attests that he was never served with the summons and complaint, [*2]that he does not reside at the 1509 East address, and has never been inside that property. Defendant submitted extensive supporting documentation including the first page of the mortgage at issue here and sixteen consecutive years’ worth of apartment leases for a different address. These documents establish that defendant resided next door to the 1509 East address, at 1511 East 172d Street.
Defendant also points to plaintiff’s subsequent service by mail of both an additional notice under CPLR 3215(g)(3) and a motion for judgment of foreclosure. Both of these submissions were mailed to the 1509 East address. Defendant argues that those mailings demonstrate that plaintiff was under the mistaken impression that defendant resided at that address, and thus plaintiff would presumably direct a process server to that address.
These issues warrant a traverse hearing concerning whether defendant was properly served with the summons and complaint.
If a court holds that service was improper, this can not only excuse a lack of answer, but may result in the dismissal of the foreclosure due to lack of jurisdiction.
Answering a foreclosure and complaint is not a simple process and mistakes can have many consequences. Please call the Law Office of Ronald D. Weiss if you suspect a foreclosure in your future or if you receive a summons. Call (631) 271-3737 or contact us online for assistance today.