Foreclosure

The Terms of a Foreclosure Lawsuit

October 12, 2026 by Elliot S. Schlissel

There are two aspects to a foreclosure lawsuit. The first is a breach of the terms of the note. The note is simply an IOU. The second is the breach of the terms of the mortgage. The mortgage secures the note to the property and creates a lien. This permits the financial institution to have a security interest in the real estate to cause the note to be paid off. The foreclosure lawsuit is basically a lawsuit based on the breach of a contract. The bank’s attorneys need to prove that the homeowner breached the terms of the contract involving the note.

The following are the terms of a contract that must be proven by the bank:

The homeowner and the financial institution entered into a written agreement.
The financial institution performed all of its contractual obligations.
The homeowner has failed to fulfill their financial obligations, e.i., making the mortgage payments.

The Foreclosure Lawsuit

Foreclosure lawsuits are more complicated than basic contract violation cases. A note (IOU) is a negotiable instrument under Article 2 of the New York Uniform Commercial Code. In addition to the obligations under a simple breach of contract, the financial institution must show it has rights to enforce the note to prevail in the foreclosure litigation.

Holder of the Note

The bank must prove they are the holder of the note and mortgage to move forward with the foreclosure lawsuit. If the financial institution does not possess the original note and mortgage documents, the homeowner has a defense to the foreclosure lawsuit that can be used to get the case dismissed.

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 info@sdnylaw.com.

Filed Under: Foreclosure Tagged With: The Terms of a Foreclosure Lawsuit

Pre-Foreclosure Actions by Financial Institutions

August 24, 2026 by Elliot S. Schlissel

The first step a financial institution and/or their attorneys must take before initiating a foreclosure lawsuit involves sending of an acceleration letter to the homeowner. The acceleration letter tells the homeowner the financial institution is accelerating the entire amount of the mortgage that is currently due and owing. Acceleration letters are sent to homeowners after they default in making mortgage payments. This usually takes place when the homeowner is 3 or more months behind on the payment of the mortgage.

The homeowner is considered to be in default of the mortgage loan after they miss one payment. However, acceleration letters are generally not sent until the borrower is at least 2 or 3 months behind on their mortgage payments.

90 Day Notice

90 days before financial institutions, and/or their attorneys, initiate a foreclosure lawsuit the homeowner must receive a 90 day notice. A 90 pre-foreclosure notice under New York State Law, will advise the homeowner that a foreclosure Summons and Complaint will be served upon them. The 90 day notice advises the homeowner they have 90 days to cure the default in their mortgage or they will be sued in a foreclosure case. If the homeowner makes all of the missed payments, the bank will have to reinstate the mortgage and the foreclosure will not go forward. The failure of the bank of the bank’s attorneys to give all of the homeowners a 90 day notice is a defense to the foreclosure lawsuit.

Filed Under: Foreclosure Tagged With: Pre-Foreclosure Actions by Financial Institutions

Practical Applications of Foreclosure Abuse and Prevention Act

July 31, 2026 by Elliot S. Schlissel

The Foreclosure Abuse Prevention Act (“FAPA”) deals with a common practice of financial institutions in the past. Financial institutions would start foreclosure lawsuits and then when it was in their advantage they would discontinue or stop the lawsuit. However, under the new statute when a financial institution starts a foreclosure lawsuit they can no longer voluntarily stop it by discontinuing the lawsuit.

Inappropriate Litigation Conducted by Banks

Financial institutions have in the past engaged in inappropriate litigation conduct. FAPA was designed to prevent financial institutions from starting foreclosure lawsuits and then deciding they did not want to move forward for a strategic reason and discontinuing the case.

The 6 Year Statute of Limitations

Financial institutions sought to get around the 6 year Statute of Limitations. In the State of New York a mortgage foreclosure lawsuit must be initiated within 6 years of either the date of maturity of the loan, the date the loan is accelerated or the date a foreclosure lawsuit is filed. Under FAPA if a financial institution voluntarily stops a lawsuit moving forward by filing a discontinuance, it does not reset the Statute of Limitations. The Statute of Limitations of 6 years runs under this new Statute, it runs from the initial filing of the foreclosure. If a subsequent or second foreclosure is brought more than 6 years from the prior one, it can be dismissed.

Legislative Intent of New York Foreclosure Abuse Prevention Act (“FAPA”)

The New York Foreclosure Abuse Prevention Act (‘FAPA”) applies retroactively. This means law applies to foreclosure cases that have been initiated prior to FAPA being past in the end of 2022.

FAPA Held to be Valid by New York’s Highest Court

The New York State Court of Appeals, the State’s highest Court has confirmed in more than one case that FAPA applies retroactively to pending foreclosure actions. These cases in the New York State Court of Appeals affirmed that FAPA does not violate the New York State Constitution, due process or other contractual clauses. In these cases the highest court rejected arguments that the retroactive nature of the Statute violates due process or Federal Contract Rights. The Statute prevents lenders from unilaterally stopping or revoking their prior acceleration of a loan for the sole purpose of resetting the 6 year Statute of Limitations. As a result of these cases, thousands of old pending foreclosures were now capable of being dismissed.

Filed Under: Foreclosure Tagged With: Practical Applications of Foreclosure Abuse and Prevention Act

Foreclosure Strategies

June 4, 2026 by Elliot S. Schlissel

The ownership of a single-family home is often referred to as the American Dream. The home will usually be a family’s largest asset. In a foreclosure lawsuit homeowners are in serious risk of losing their largest asset, and being forced into finding another place to live. No matter how many payments the homeowner has missed, there are solutions to the homeowner’s problem other than losing their home in a foreclosure lawsuit. Homeowners have rights in the State of New York. Retaining of a foreclosure lawyer is often the best first step if the homeowner wishes to save their home.

Foreclosure defense attorneys can advise the homeowners of various strategies and methods to save their home. There are legal strategies that exist in the State of New York to stop foreclosures from going forward and saving homes.

Options to Avoid Foreclosure Sales

Homeowners can apply for a loan modification. They can bring an action to dismiss the foreclosure. They can enter into short sales. They can execute deeds in lieu of foreclosure. They can file Chapter 7 or Chapter 13 bankruptcies in Federal Courts.

Bank Mistakes

In some situations banks or their employees have made mistakes, engaged in unethical activities, have been involved in robo signing of documents or they lack standing to actually bring the foreclosure case. Standing refers to whether the bank bringing the foreclosure action actually is the appropriate party to engage in the foreclosure process against the homeowner.

Filed Under: Foreclosure Tagged With: Foreclosure Strategies

PRE-FORECLOSURE NOTICE

February 12, 2026 by Elliot S. Schlissel

New York has a specific statute that requires a lender to provide 90 days notice to a homeowner before they initiate a foreclosure lawsuit. The failure of the lender to provide the 90 days notice can in the answer to the foreclosure lawsuit provide a defense to the foreclosure lawsuit. In the event you have a defense such as a failure to serve a pre-foreclosure notice or the statute of limitations, which talks about the time period the lender has to initiate the lawsuit, these defenses must be specifically plead in the answer to the Summons and Complaint. To protect yourself, it is highly recommended that you contact a law firm that handles foreclosure defense to draft the answer for you and take the appropriate legal action in the Supreme Court to protect your rights and possibly get the lawsuit dismissed.

Time to Answer

Under New York State law if served with a Summons and Complaint, you have 20 days to submit a written response to the Summons and Complaint, which is called an Answer, if the Summons and Complaint is personally handed to you by a process server. If you receive the Summons and Complaint that is dropped off at your home or sent to you by another means, you have 30 days from the time of service to respond to the Summons and Complaint. If you do not provide a written response to the Court and the bank’s attorney within the appropriate time limitation, you have defaulted in the foreclosure lawsuit. A default is an indication that you are not contesting the lawsuit which is designed to sell your home and cause you to be evicted. This is always a mistake!

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TYING THE FORECLOSURE LAWSUIT UP IN COURT

January 29, 2026 by Elliot S. Schlissel

A sophisticated foreclosure lawyer can often tie a foreclosure lawsuit up in court any where from 2 to 3 years. This can give the homeowners the ability to obtain a new job or jobs if they are unemployed, organize their finances, work out mortgage modifications and get their home foreclosure issue straightened out.

Mortgage Modifications

Mortgage loan modifications take time to work out. If you are already behind on your mortgage, you will fall further behind during the process of obtaining a mortgage modification. A foreclosure attorney can tie up your case in Court to give you the time to obtain a mortgage modification before you lose your home.

Selling Your Home In Foreclosure

Many people do not understand that you can sell your home even if it is in foreclosure. The sale of a home in foreclosure may be a bit more complicated than a sale when a home is not in foreclosure, but the home is still saleable. Selling the home will allow the homeowner to pay the bank off and reap the benefits of the increase in value of the home. In addition the homeowner gets to keep the balance of the equity paid at the time of closing after paying off the mortgage. These sums can be utilized to purchase another home in the future.

Selling the home is only one option a homeowner has when their home is in foreclosure. There are many other options available. A consultation with a New York foreclosure defense attorney will be the best way to determine how the homeowner should deal with their situation involving the foreclosure on their home.

Filed Under: Foreclosure Tagged With: Tying The Foreclosure Lawsuit Up In Court

SALE OF A HOME IN FORECLOSURE

November 18, 2025 by Elliot S. Schlissel

A foreclosure lawsuit is initiated by the attorneys for the lender by filing a Summons and Complaint in the County Clerk’s office of the county where the home is located. Thereafter the Summons and Complaint is served on the homeowners by a process server. The end of a foreclosure lawsuit is the sale of the homeowner’s home. The sale is an auction sale where anyone can come and bid as long as they have at least a third of the money up front and the rest within a few days.

The Home Is Under Water

There are cases where the foreclosure sale will not provide enough money to repay the mortgage loan. This is a situation where the home is called said to be Under Water. Under water means that the home is worth less than the amount that is owed on it. In these situations, the bank can move for a deficiency judgment against the homeowner. Here is an example of that situation: The homeowner owes $850,000. The home is sold for $750,000 at the foreclosure sale. There is now a deficiency of $100,000. The homeowner still owes the bank the $100,000. This means the homeowner can lose their home and still owe the bank a lot of money. Filing a bankruptcy can stop the foreclosure sale and in certain circumstances eliminate deficiency judgments against the homeowner.

After the Sale

After a home is sold at a foreclosure sale the new owners need to notify the homeowners of the details of the sale. Then the new owners start to take action to have the prior homeowners removed from the house. Unfortunately, the loss of a family’s home is a very unpleasant experience.

Filed Under: Foreclosure Tagged With: SALE OF A HOME IN FORECLOSURE

FORECLOSURE IN NEW YORK

November 3, 2025 by Elliot S. Schlissel

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.

Filed Under: Foreclosure Tagged With: FORECLOSURE IN NEW YORK

90 DAY FORECLOSURE NOTICE RPAPL 1304

October 21, 2025 by Elliot S. Schlissel

In every potential residential foreclosure case, the lender or the lender’s attorney must provide the homeowners with a notice 90 days before the foreclosure starts pursuant to Real Property Actions and Procedure Law Section 1304. The requirements of this notice are very specific.

The homeowners each need to receive an individual letter giving them notice of the pending foreclosure. If a husband and wife or 2 owners receive notice in one envelope that does not meet the statutory requirements.

In a recent case the bank sent homeowners two (2) 90 day notices in one a single envelope jointly addressed to both of them. The homeowners challenged the notice. The court found that the methodology of sending two (2) notices in a single envelope was improper. The foreclosure was dismissed.

The Summons & Complaint

After the 90-day notice is served on the homeowners the bank’s attorneys will start working on the foreclosure documents. The first they will do is order a title report. After the 90-day period has expired they will draft a Les Pendens, which has the impact of destroying the title to the house. The Les Pendens is filed with the County Clerk’s Office.

A Summons & Complaint is drafted and filed with the County Clerk’s Office and an Index Number is obtained. The Index Number is a tracking device that denotes the case is in the legal system. The Summons & Complaint are given to a process server who thereafter serves the homeowners.

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Foreclosure Case The Summons And Complaint

September 17, 2025 by Elliot S. Schlissel

The bank retains a law firm that drafts a Summons and Complaint. The Summons and Complaint is filed with the County Clerk’s Office of the County in which the home is located. The filing of these papers gives the Summons and Complaint an Index Number. This Index Number is a tracking device for the case going through the Courts. Simultaneously with filing this Summons and Complaint, the attorneys for the financial institution file a Lis Pendens. This advises other people that there is a Court case against the property. This has a negative impact on the title to the home.

The Answer

If you wish to defend yourself in a foreclosure lawsuit after being served with a Summons and Complaint, you submit a written Answer. This Answer can include defenses, affirmative defenses and counter law suits. If you do not file an Answer to the Summons and Complaint, it is considered that you defaulted and that you are not challenging the foreclosure. This can result in your your home much faster.

Settlement Conference

There is a mandatory Foreclosure Settlement Conference that is required in all foreclosure lawsuits. At a settlement conference you can discuss mortgage modifications and other issues. If you do not attend the settlement conference, the Court can allow the case to move forward without your participation.

Discovery

Discovery is a process where each of the parties to a lawsuit can obtain information from the other party. The information used can be considered evidence which can be used by each of the parties during motion practice or at a trial, either for prosecution or by the defense.

Foreclosure Judgment

A financial institution can obtain a judgment on default if the homeowner does not submit a written Answer to the Summons and Complaint.

Filed Under: Foreclosure Tagged With: Foreclosure Case The Summons And Complaint