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Elliot Schlissel is a foreclosure defense lawyer helping homeowners stay in their homes throughout the Metropolitan New York area. He and his associates can be reached for consultation at 516-561-6645 or 718-350-2802 or send an email to schlissel.law@att.net.
When homeowners are served with a Summons and Complaint they must file a response to that Summons and Complaint. The response is referred to as an “ANSWER“. There are very specific and detailed requirements as to what should be contained in the Answer submitted by the homeowners.
To start with, the Answer should include a response to each and every numbered paragraph and claim made by the financial institution in its Complaint. The paragraphs in the homeowners’ Answer should be numbered. The numbered paragraphs in the homeowners’ Answer should respond to the numbered paragraphs in the financial institution’s Complaint. The homeowner can either admit the allegations, deny the allegations, or deny knowledge or information sufficient to either admit or deny the allegation contained in the numbered paragraph of the financial institution’s Complaint.
The attorneys for the financial institution must prove all of the allegations in their Complaint which are either denied or which the homeowner denies knowledge or information sufficient to form a belief as to the truthfulness of the allegation contained in that paragraph. The paragraphs which are either admitted or not denied by the Answer of the homeowner are deemed admitted and the bank will not have to prove the truthfulness of those allegations at the time of trial.
Affirmative Defenses
In addition to either admitting, denying, or denying knowledge or information about the allegations in the specific paragraphs of plaintiff’s Complaint, the homeowners can assert affirmative defenses in their Answer with regard to the foreclosure lawsuit. An affirmative defense is basically a legal argument as to why the bank should not be allowed to be successful in prosecuting the lawsuit. Examples of affirmative defenses can deal with the fact the mortgage is actually current, and not overdo; that documents were signed by robo-signers; the homeowner was fraudulently induced into taking the loan; the financial institution violated Federal Truth in Lending Laws, New York State banking laws or Federal banking laws, the Fair Debt Collection Practices Act; predatory lending issues; bad assignments; lack of standing to bring the lawsuit; failure to serve a 90 day notice; failure to adhere to all types of procedural foreclosure requirements and many, many other affirmative defenses.
The Answer to the bank’s Complaint must be sworn to by the homeowners and acknowledged before a Notary Public. Thereafter a copy of it must be served on the attorney for the bank. The homeowners must file a copy of the Answer with the court and the bank’s lawyers. The Answer must have attached to it an Affidavit of Service of the Answer on the bank’s attorneys.
The Complaint
The purpose of the Complaint in a foreclosure lawsuit is to spell out the financial institution’s claims as to why they are entitled to relief. The Complaint specifically will discuss the nature of the mortgage and the promissory note. The Complaint will also provide the address and legal metes and bounds description of the property being foreclosed upon. It will usually state the homeowner had agreed to make payments pursuant to the terms of the note and mortgage and they defaulted on these terms. The Complaint will specifically name who owes the bank money and their interest in the property being foreclosed upon. In addition, the Complaint will usually have exhibits attached to it. These exhibits, at a minimum, will be the note and the mortgage.
The Complaint will also state the relief the lender asks for. This will usually be the right to sell the property and after the sale having the net proceeds after the costs of the sale apply to the balance due under the lender’s mortgage. The bank’s complaint may also have a request they receive a deficiency judgment in the event the proceeds from the sale of the home do not satisfy the entire balance due of their mortgage costs and disbursements.
The Lis Pendens
The lis pendens is a legal document the attorney for the financial institution files in the County Clerk’s office of the county where the property being foreclosed upon is located. This document serves to provide public notice to all future individuals obtaining liens and judgments as well as any potential interested purchaser of the property the property is in the midst of a foreclosure lawsuit and is encumbered by this foreclosure proceeding. The attorneys for the financial institution bringing the foreclosure proceeding usually files the lis pendens on or about the same time the Summons and Complaint are filed with the County Clerk’s office.
The Summons
The purpose of a Summons is to inform the person being sued that a lawsuit is pending against them and an Answer to the lawsuit must be filed if they seek to contest or assert their rights related to the lawsuit. Each defendant in a foreclosure lawsuit who is named must be served by a process server in New York. Homeowners who are named as defendants in foreclosure lawsuits must be served with a Summons. Also, individuals having liens on the house or creditors holding judgments filed against the house also must be served with a Summons. This gives these other individuals notice that this lawsuit may affect their rights to collect on their liens and judgments against the house. The Summons specifically provides notice to the homeowners with regard to how much time they have to respond to the initiation of the lawsuit. The Summons states if the individual is served personally, they have twenty days to respond, and if served by any other means other than personal service, they have thirty days to respond to the lawsuit. This sets the time period by which homeowners who are served with the Summons and Complaint in foreclosure cases must respond to it by filing a written Answer, acknowledged before a notary public, with the Court and with the attorney for the bank. If the homeowner fails to respond in a timely manner, their failure to submit an Answer will be considered a default. The default means the homeowner is not challenging the allegations in the lawsuit.
Please view today’s blog article regarding pleading defenses in a foreclosure action by clicking on the following link:
Elliot S. Schlissel is a foreclosure defense lawyer. He can be reached at 1-800-344-6431 or by email at schlissel.law@att.net.
