Once the New York Supreme Court enters a judgment of foreclosure against you, you may think that you have no option but to start packing and lose ownership of your home. However, courts can make errors in foreclosure cases just like in any other type of civil case. If a judgment was based on wrongful interpretation or application of the law in your case, you have the opportunity to appeal the decision.
Filing an appeal is a complex matter with specific procedural requirements and different standards of review than in the lower courts. You should seek assistance from a foreclosure defense lawyer who understands how to identify points of appeal and properly assert your case to the Appellate Division.
First of all, when a litigant is unhappy with a decision there is also the choice to reargue or renew a motion before the same judge. The interplay between rearguing and appealing is important, and so is the idea of a stay pending appeal and the necessary undertaking/bond—but we will deal with that in a separate blog.
Just like any court proceedings, appeals are governed by strict procedural rules and deadlines, and New York Civil Practice Law & Rules (CPLR) Article 55 governs the appeals process. Timing is extremely important, so you should pay attention to the calendar and have a lawyer who has the ability to act quickly.
You start the appellate process by filing a Notice of Appeal, which informs both the court and the mortgage lender that you are appealing the lower court’s decision. Under CPLR 5513, you have a quite limited time to initiate the process:
Time to take appeal as of right. An appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof.
Once you are served with the Order or Judgment from the initial case, you have only 30 days to prepare and file the Notice of Appeal.
Your Notice of Appeal must contain the following:
Different courts may want additional information or documents included with your Notice. A lawyer with extensive experience practicing in the New York court system should know how to meet any necessary requirements in your case. You must also serve a copy of the Notice of Appeal to the plaintiff in your foreclosure case, and file the Affidavit of Service with the court.
After you file your Notice with the right appellate court, your lawyer will take many steps to “perfect the appeal.” There are many procedural rules that govern this process, including preparing the record on appeal under CPLR 5526:
Content and form of record on appeal. The record on appeal from a final judgment shall consist of the notice of appeal, the judgment-roll, the corrected transcript of the proceedings or a statement pursuant to subdivision (d) of rule 5525 if a trial or hearing was held, any relevant exhibits, or copies of them, in the court of original instance, any other reviewable order, and any opinions in the case.
There are other options for perfecting the appeal, including an appendix method (CPLR 5528(a)(5)); or an agreed statement in lieu of record (CPLR 5527).
In addition to compiling the record in accordance with strict requirements, your attorney will need to draft an appellate brief. This brief sets out the basis of your appeal and a request for an oral argument, if needed. The other party can file a reply brief, and then your attorney can file another reply brief. All briefs should carefully and thoroughly address why the lower court made an error as a matter of law, and drafting appellate briefs requires extensive knowledge of both the appellate process and of New York foreclosure laws and standards.
CPLR 5501 allows the Appellate Division to review non-final judgments or orders that affected the outcome of the case, orders denying new trials or hearings, or rulings or remarks to which the appellant objected. The Rule also states that “the appellate division shall review questions of law and questions of fact on an appeal from a judgment or order of a court of original instance and on an appeal from an order of the supreme court, a county court or an appellate term determining an appeal.”
The Appellate Division in the New York Court System “is not a separate court, but a branch of the Supreme Court.” First Nat’l Bank of Glens Falls v. Reoux, 11 A.D.2d 876, 877, 203 N.Y.S.2d 25, 26 (3d Dept. 1960). The Appellate Division’s authority “is as broad as that of the trial court” ( Northern Westchester Professional Park Associates v. Town of Bedford , 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 354 (1983); Matter of Association of the Bar of the City of New York, 222 A.D. 580, 227 N.Y.S. 1 (1st Dept. 1928)), and you can often see an Appellate Division decision reversing or modifying an order or judgment of the Supreme Court based “on the law, the facts and in the exercise of discretion.” E.g., Matter of Kelly v. Safir , 271 A.D.2d 326, 706 N.Y.S.2d 113 (1st Dept. 2000), rev’d 96 N.Y.2d 32, 40, 724 N.Y.S.2d 680 (2001).
To protect your rights, you should have an experienced foreclosure defense attorney representing you from the time you receive notice of a possible foreclosure action. If you receive a default judgment or lose your foreclosure case, you should immediately speak with a lawyer who understands your options to stay the sale of your home and appeal the decision. Whether you are in default on your mortgage or have a judgment against you, call the Law Office of Ronald D. Weiss for help right away. Call (631) 271-3737 or contact us online for a consultation.