A foreclosure in New York begins when the lender files a lawsuit asking a court for an order allowing a foreclosure sale. The lender gives you (the borrower) notice of the suit by serving you a summons and complaint, along with information about the foreclosure process. (N.Y. Real Prop. Acts. Law § 1303, § 1320).
A recently-passed law in New York (SB 5785) amends the state's foreclosure laws as of January 1, 2022. Under the amended law, any foreclosure complaint initiated on a residential mortgage covering a one- to four-family dwelling after the law's effective date must contain an affirmative allegation that the plaintiff (the party initiating the lawsuit, which is usually the lender or loan servicer in a foreclosure) has "standing."
SB 5785 also requires the plaintiff to state in the complaint that it has complied with certain provisions of New York's existing foreclosure laws.
Specifically, New York's amended law requires the plaintiff to say in the complaint for foreclosure that it is the owner and holder of the subject mortgage and promissory note, or that it has been delegated the authority to start a mortgage foreclosure action by the owner and holder of the mortgage and note. (N.Y. Real Prop. Acts. Law § 1302). That is, the foreclosing party must assert that it has standing to proceed with the case. (Previously, this requirement applied only to high-cost home loans and subprime home loans.)
SB 5785 also requires the plaintiff to state in the complaint that it has complied with certain provisions of New York's existing foreclosure laws, like sending the borrower a preforeclosure notice.
If the property is an owner-occupied, one- to four-family dwelling, or a condominium unit, New York law requires the lender or servicer to send a notice to the borrower 90 days before starting the foreclosure that provides, among other things:
If the lender or servicer started the foreclosure, but didn't send the 90-day notice when required by law or didn't strictly comply with notice requirements, you could have a powerful defense that might result in a dismissal of the foreclosure action. In March 2022, New York S.B. 7698 amended foreclosure requirements for residential mortgages by clarifying that it is a defense to an action to foreclose a mortgage if a lender violates § 1304 of the Real Property Actions & Proceedings Law.
You likely have a defense to a foreclosure action if the lender violates the provisions of the amended foreclosure law.
You generally get 20 or 30 days, depending on the situation, to file an answer to a foreclosure lawsuit, raising any defenses you have to the action. So, if you're facing a foreclosure and think your lender violated New York's foreclosure laws, like by failing to send you a 90-day preforeclosure notice, consider filing a response to the foreclosure. (Again, these amendments to New York's foreclosure laws apply to foreclosures initiated on or after January 1, 2022.)
If you don't respond to the suit, the lender will ask the court for, and probably receive, a default judgment, which will allow it to hold a foreclosure sale. But if you choose to defend the foreclosure lawsuit, the case will go through the litigation process.
You can raise the issue of standing as a defense to foreclosure, even if the deadline to answer the suit has passed.
New York law permits a homeowner defendant in a foreclosure suit to raise a defense of standing at any time in the litigation. But the defendant may not put forward an objection or defense of lack of standing following a foreclosure sale, unless the judgment of foreclosure and sale was issued upon the defendant's default. (N.Y. Real Prop. Acts. Law § 1302-a). So, a foreclosed borrower can assert a lack of standing even after a foreclosure sale if the judgment of foreclosure was a default judgment. (Again, a default judgment happens when the borrower fails to answer the suit.)
If you have questions about New York's foreclosure process or want to learn about potential defenses to a foreclosure and possibly fight the action in court, consider talking to a foreclosure attorney.
Effective date: January 1, 2022