Defending A Foreclosure: What ‘NOT’ To Do

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While aiming to discuss in the next several segments of this column the actions that must be taken in any foreclosure action in New York, there is one underlying action that one must not miss – namely, to file an Answer to a Foreclosure Summons and Complaint. Similar to most Civil actions filed in New York, the Summons and Complaint, which are normally coupled together (especially in Foreclosure proceedings) states the nature of the action and what the plaintiff (in a case of Foreclosure being the Bank) is seeking.

Answering a Summons and Complaint is probably the most crucial step in a Foreclosure proceeding. Amongst other things, by filing an answer the defendant is guaranteed that he or she will (by law) receive notice(s) of all future actions in the Foreclosure case. The Answer, if properly drafted, can serve as a way to by defendant to attempt to level the playing field with the foreclosing lender. Most have heard commercials to the tune of “Insurance companies have attorneys working hard on their side and so should you.” While I have not yet heard a similar commercial in regards to foreclosure, the fact of the matter is that Banks have attorneys working hard on their side (in fact, sometimes to hard) and a defendant should take counsel with an attorney experienced in Foreclosure defense work. If a defendant cannot afford a private attorney, the defendant can take advantage of various free, not-for-profit clinics that offer foreclosure defense. Lastly, as always, the defendant can proceed pro se; that is, without an attorney. While my opinion may be biased since I am a private attorney dealing in foreclosure defense on a daily basis, what I have heard and seen in courts from the free and not-for-profit clinics has not been impressive (and it is not hard to understand why). Most of such clinics run themselves like a free doctors clinics – with the key word being speed (at the expense of properly and, more importantly, shrewdly, defending the home owner).

As with most Summons and Complaints in New York, the defendant is “summoned” (that is, required) to answer the Complaint and to serve a copy of the Answer to the Plaintiff’s attorney within twenty (20) days after the receipt of the Summons and Complaint if personally served (the definition of what personally served is broad and needs to be discussed with an attorney) or within thirty (30) days of receipt of the Summons and Complaint if the defendant is not personally served within the State of New York (such as by the process of “Nail and Mail”, where after the process server is unsuccessful at serving the defendant personally, the Summons and Complaint is “nailed” to the door and a copy of the Summons and Complaint is sent by mail to the defendant’s address). While there are certain cases where the defendant has a longer period to file an answer (such as where the defendant is an active servicemember and qualifies for Active Military Service protections, most defendants will fall into the 20 or 30 day bracket).

As stated in the beginning of this column, in the next several segments we will be discussing the effects of not filing and answer (which, as a preview, are definitely not favorable to the homeowner)  as well as possible defenses and counterclaims that should be considered as part of an Answer in a Foreclosure proceeding.

Alexander Gofer is the managing partner of the Gofer Law Group and can be reached at 212-480-3400 ext 101 or via e-mail: [email protected]. The Gofer Law Group is a full service Law Firm with location is Long Island, Manhattan and Williamsburg, focusing Foreclosure Defense, Private Lending, Residential and Commercial Real Estate Transactions and Joint Venture Agreements.

(Alexander Gofer – YWN)


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