Oct 19 Queens Foreclosure Defense Attorney: “I did not file an answer. Can I still Save my Home?”
If you have been served with a summons and complaint in a foreclosure action, and you have not filed an answer, you still have options available to you. Our Queens foreclosure defense attorney is available to speak with you at anytime and will provide you with proper guidance in your case. An answer is a pleading which asserts defenses. An answer gives you the opportunity to immediately litigate a case. If you do not file an answer, the bank is entitled to a default judgment against you. If you are served personally, you have twenty (20) days to file an answer. In all other instances, you have thirty (30) days to file an answer.
However, if you fail to file your answer, there are still options available to you. Once a request for judicial intervention for a mandatory settlement conference is filed and served by the Plaintiff, you can appear at the settlement conference on the date and time assigned by the Court and you still have thirty (30) days to file an answer from that date. When a case is in settlement conferences, the Plaintiff is not permitted to proceed with the foreclosure action, and you may have the opportunity to have your loan modified, even if you did not file an answer. This is one way to save your home, even if you do not file your answer.
If you fail to appear, the settlement conference part will “release” your case. This means that they send it to a Judge’s part, and the Judge has the opportunity to rule on the case. Once you are served with a Motion for Default Judgment and an Order of Reference, you can still oppose it, even if you did not file an answer. However, some defenses will have been waived, and you would lose on those if you have not initially filed an answer.
File a Late Answer
Under CPLR 3012 (d), you may be able to file a late answer so long as (1) you have a reasonable excuse for the delay and (2) a potentially meritorious defense both of which are attested to by someone having personal knowledge of those facts. If those two factors are met, you may be able to bring a motion to compel Plaintiff to accept the late answer, so long as there is no prejudice to Plaintiff. The Appellate Division has never defined what a “reasonable excuse” is for the delay in filing a late answer. In instances of a reverse mortgage where the Plaintiff’s default was non-occupancy, and perhaps they were in a nursing home or in treatment, and were not served on the facility, but instead service was at the home, the court would be amenable to compelling the Plaintiff to accept the late answer. Another reasonable excuse for the delay would be if immediately after service, you contacted the bank and attempted a work out, perhaps the bank put the file on “hold.” Perhaps you believed you could negotiate with the bank before the time to answer expired, but were unable to. In that case, the Court may be sympathetic and compel Plaintiff to accept the late answer.
Perhaps you waited too long, and you are at the stage where the bank has filed a motion for judgment of foreclosure and sale and the referee has set a date for the sale. You must then immediately file an order to show cause to stop the sale. When you appear at the Order to Show Cause, the bank will bring their side of the argument and you can argue your side as well. In the vast majority of instances, the order to stay the sale does get signed as many judges are sympathetic to borrowers who are about to lose their home. Hopefully, during this time, you have gathered sufficient funds and are able to pay-off the loan or perhaps ask the Plaintiff if they are open to you reinstating the loan.
With all of the resources and remedies available to borrowers, there are many ways to save your home without even filing an answer. However, it is very important to hire an experienced foreclosure defense attorney to assist you. Our Queens foreclosure defense attorney will be there to advocate for you every step of the way, and guide you through the process. Call us today at 718-520-0085 for a free consultation, fill out the contact us form.