Orders to Show Cause are emergency motions and can be pursued in both state court (the Supreme Court of New York ) and federal court (the United States Bankruptcy Court).
In state court the Order to Show Cause usually attempts to stop a foreclosure sale, vacate a judgment of foreclosure and sale and/or extend the time for the defendant to answer, on an emergency basis. The defendant usually argues that the foreclosure should be stayed because of technical and/or substantive reasons and that the homeowner should be given more time and opportunity to pursue options, like modification, refinancing and/or a voluntary sale that have a good chance of resolving the foreclosure situation. Usually technical reasons need to be present to show that there were improprieties in the foreclosure action with such issues as defective process of service, lack of standing, predatory lending, and defective assignments. If you desire to defend the foreclosure action and have been in foreclosure for over one year and/or have a foreclosure sale date, you may need to proceed by emergency Order to Show Cause in order to assert your rights and have a possibility to stay the foreclosure action and/or foreclosure sale. If you believe that you many need an Order to Show Cause, especially if there is a scheduled foreclosure sale date, then time is of the essence and you should contact us immediately to review your options.
In bankruptcy court an order to show cause usually attempts to give a debtor an additional opportunity to stop a sale by reinstating a formerly dismissed case or by asking based on “changed circumstances” for permission to file an additional bankruptcy case where the debtor due to previous, excess bankruptcy filings cannot obtain an automatic stay upon a new bankruptcy filing. The reason an Order to Show Cause is sometimes necessary in Bankruptcy Court is that there is a limit on the number of times a person can obtain an automatic stay in the Bankruptcy Court when they file a bankruptcy case. If a person has had two or more Chapter 13 cases pending within the last year the automatic stay does not go into effect and the person needs to immediately retain a bankruptcy attorney to move by Emergency Order to Show Cause before the Bankruptcy Court to try to obtain a stay against their mortgage holder, including a stay of any upcoming foreclosure sale. In such Order to Show cause there needs to be demonstrated strong financial “changes in circumstances that would allow the person to have a better chance of moving forward in another Chapter 13 case in terms of making required monthly payments to the Chapter 13 trustee under the Chapter 13 plan and in terms of making required monthly post- petition mortgage payments.
When a litigant needs to take an appeal in either state or bankruptcy court, usually it is necessary to obtain a stay pending appeal so that the foreclosure process would not proceed making the effort to appeal purposeless. To obtain a stay pending appeal one needs to show that the balance of harms, equity, and the likelihood of the success on the merits, all favor the defendant and the posting of a bond may be necessary.
Defending the foreclosure action and Emergency Orders to Show Cause require knowledge, experience and assertiveness. The Law Firm of Ronald D. Weiss, P.C. relies on these qualities to make sure that your rights are protected and preserved throughout the entire foreclosure process. In an Order to Show Cause in State Court many of the defenses present in a foreclosure defense may be asserted in support of a stay of the foreclosure or to stop a foreclosure sale. Please make reference to the Section dealing with “Foreclosure Defense” to review such defense and please contact us to discuss your options.
Preparing and submitting an effective Order to Show Cause application can be involved and complex 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 Order to Show Cause applications 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) 271-3737, or e-mail us at firstname.lastname@example.org for a free consultation with an attorney, at our Melville, Long Island law office to discuss Order to Show Cause options in greater detail.