The financial institution’s attorneys represent what is referred to in a lawsuit as the plaintiff. The attorneys for the homeowner in a foreclosure case represent the defendant. The plaintiff is usually the party that is pushing the case through the courts as quickly as possible to obtain the relief their client wants which is in foreclosure cases to sell the homeowner’s home. The homeowner defends the lawsuit and seeks to have it dismissed or delayed.
Motion to Dismiss
A homeowner can make a motion to dismiss a foreclosure lawsuit. There are various basis for motions to dismiss. A homeowner can make a motion claiming the 6 year statute of limitations expired before the foreclosure lawsuit was initiated. The homeowner can claim that there is a jurisdictional problem in the underlying lawsuit by the financial institutions against the homeowner. The homeowner can also claim there are issues such as defective service of the summons and complaint, lack of standing of the financial institution to initiate the lawsuit and other defenses.
Motion to Extend Time to Answer
A homeowner has 20 days to serve an answer if served personally and 30 days to put an answer in if served by any other means. If the homeowner is late in submitting their answer or needs extra time to submit their answer to the summons and complaint of the financial institution, the homeowner’s attorneys can request the financial institution’s attorneys extend their time to answer. If they don’t agree to this extension, the attorneys for homeowner can make an application to the court via motion to extend the homeowner’s time to submit a written answer to the summons and complaint. In addition to extending the time to submit an answer, if the homeowner has submitted an answer and there are problems with the answer or the answer does not contain all the material necessary to properly defend the lawsuit, the homeowner can make an application to the court to amend their answer even after the time for the homeowner to amend their answer as of right has passed.
Discovery Motions
The homeowner can serve discovery demands on the attorneys for the financial institution. These discovery demands can ask for the providing of information, documents, names of witnesses and other material needed by the homeowner to effectively litigate the foreclosure case. If the homeowner serves discovery demands on the attorneys for the financial institution, the financial institution has a limited period of time to respond to these discovery demands. If the financial institution fails to respond to the discovery demands or responds to some questions and doesn’t respond to others or makes unreasonable objections to the discovery demands, the homeowner can make a motion to force the financial institution to respond to the homeowner’s demands in an appropriate manner. This motion is referred to as a motion to compel discovery.
Motion to Dismiss for Failure to Prosecute
Sometimes in a foreclosure case the attorneys for the financial institution let a file fall by the wayside. In these situations the homeowner can give the financial institution written notice that unless the attorneys for the financial institution move forward with their case, they will make a motion to dismiss for failure to prosecute the case. The homeowner’s attorneys must give the financial institution’s attorneys 60 days notice prior to making this motion.
Motion for Summary Judgment
Counsel for both the plaintiffs and for the defendants in any case can make motion for summary judgment. In a situation where the counsel for the homeowner believes they can prevail in a foreclosure lawsuit on paper with legal arguments and present undisputed facts with regard to pertinent legal defenses submitted in counterclaims, they can move for summary judgment against the financial institution.
Course of Motion Practice
Most financial institutions have billions of dollars in assets. Most homeowners are working people. The attorneys for the financial institutions have much greater leeway to get involved in motion practice because their client, the “bank”, can pay them tens of thousands of dollars if necessary to prosecute their lawsuit. Homeowners’ attorneys have to take into consideration the costs of litigation. Motion practice by the homeowners’ attorneys has an expediential increase in the costs of foreclosure litigation. In many situations homeowners simply cannot afford the costs of this type of motion practice.
Elliot S. Schlissel, Esq. is a foreclosure defense attorney. He has been keeping homeowners in their homes for more than 3 decades. Elliot, his partner Nathan DeCorpo and his staff of lawyers litigate cases throughout the Metropolitan New York area involving foreclosures. They obtain mortgage modifications and also file bankruptcies for their clients when necessary to avoid their homes going to sell. Elliot can be reached at Elliot@sdnylaw.com or the law firm can be called at 800-344-6431.
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Elliot S. Schlissel, Esq. is the managing partner of Schlissel DeCorpo LLP. Elliot is a 
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