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What Can You Do if You Fail to Respond to a Foreclosure Complaint in New York?

Posted by Melvin Monachan | Aug 02, 2019 | 0 Comments

It's true for too many of us, even though the economy is better, we still can't pay all our bills. Maybe you missed one too many mortgage payments. Maybe in fear of what will happen, you neglect your mail or inbox. You don't want to deal with it. Or, maybe you just don't have time to deal with it.

We all have things going on, but failing to pay your mortgage can be serious. It can lead to a foreclosure summons and complaint, and that is something you do not want to ignore in New York. But if you do, you may have options.

What happens if you fail to respond to a foreclosure complaint in New York?

When you are served a Summon and Complaint by a personal service company, meaning in-hand delivery, you have 20 days to respond. If you were served the same by another method, you have 30 days. When you do not file an answer within that time frame, you are considered in default. As a result, the plaintiff can file a motion for a default judgment against you. You don't want this. You need to get out of default.

But getting out of default is not automatic simply by contacting the court. You do have options, though.

What are your options to get out of default in a New York foreclosure matter?

When you failed to answer a foreclosure summons and complaint, you may still be able to file one if you are successful at one of two options:

  1. You can ask the Plaintiff to consent to a late answer; or
  2. You can file a motion with the court to request judicial permission to file late.

In the first scenario, a lender may be more likely to consent if you aren't too late (e.g., a few days), but it may be harder to get consent the longer you wait to ask it.

In the second scenario, the court must consider a two-pronged test:

  1. Do you have a reasonable excuse; or
  2. Do you have a meritorious defense?

Examples of a Reasonable Excuse

  • You never received or learned of the foreclosure summons and complaint.
  • You did not know of the summons and complaint because you were ill or injured and in the hospital.
  • You were out of the court's jurisdiction at the time of the summons and complaint.

Examples of a Meritorious Defense

  • There is a lack of standing, i.e., the plaintiff is not the legal owner of the mortgage.
  • The debt in the summons and complaint is inaccurate.
  • The statute of limitations has run its course.
  • The service of the summons and complaint was not in compliance with the rules.

You will include the reason or defense in your motion requesting the court to vacate the default in the interest of justice. 

Retain a Foreclosure Defense Attorney in NYC, Nassau, and Suffolk Today

At the Law Offices of Melvin Monachan, PLLC, we've helped people who are in fear of foreclosure or who have had a summons and complaint filed against them. It is a scary time, and the law is complex. We can help you find a viable solution to your foreclosure matter. Contact us by filling out a contact form or give us a call at (516) 714-5763.

About the Author

Melvin Monachan

Melvin Monachan is the founder of The Law Office of Melvin Monachan, PLLC, a full service, real estate law firm representing individuals, investors and corporate entities in all aspects of real estate law. On the transactional side, Melvin represents purchasers and...

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