In New York a foreclosure is a court supervised process. A lender retains an attorney and files a lawsuit to enforce the lender’s right to take the home back for failure of the homeowner to fulfill their requirements of making payments under the mortgage. Prior to initiating the foreclosure lawsuit the lender must give the homeowner a ninety (90) day pre-foreclosure notice. The purpose of this notice is to inform the homeowners that they are in default under the terms of their mortgage. This notice also provides the homeowners with information regarding how they can receive help to deal with the foreclosure process.
The Filing of the Lawsuit
The lender’s attorneys draft a Summons and Complaint and file it in the County Clerk’s Office of the County in which the home is located. Upon making this filing the attorneys for the financial institution obtains an Index Number which is the tracking number that the case goes through the Courts with.
Service of the Summons and Complaint
After the filing of the Summons and Complaint with the County Clerk’s Office, the attorneys for the financial institution hire a process server who then serves the Summons and Complaint on the homeowner.
Mandatory Settlement Conference
The first step in the legal process is a mandatory settlement conference which allows the homeowner and the attorneys for the lender to discuss solutions to the homeowner’s default in paying their mortgage. This usually involves a discussion of a mortgage modification.
Motion Practice
If the homeowner does not respond in writing to the lawsuit by submitting a written answer or attend the mandatory settlement conference, the lender may move by motion for a default. A default judgment is an indication that the homeowners have taken no legal action to defend themselves in the lawsuit.
Judgment of Foreclosure and Sale
If the bank’s attorneys are successful in either obtaining a default judgment on winning a Summary Judgment, the lender’s attorneys will then move for a Judgment of Foreclosure and Sale. This Judgment appoints a Referee to sell the homeowner’s home at a foreclosure sale.
Foreclosure Sale
A foreclosure sale is an auction sale. The Referee appointed by the Court schedules it and prospective purchasers bid on purchasing the home. The home is purchased for cash at the sale.
Referee’s Deed
After the foreclosure auction sale takes place, the Referee prepares a deed giving the winning bidder legal title to the home.
The law firm of Schlissel DeCorpo LLP has been helping families deal with mortgage and foreclosure problems for more than 30 years. We can be reached at 718-350-2802, 516-561-6645 or 631-319-8262 or by e-mail at [email protected].
