New York Foreclosure Basics
Prior to commencing a foreclosure action in New York State the mortgagee’s attorney orders a Foreclosure Certificate from a Title Company. A Foreclosure Certificate is similar to a Title Search and includes basic information regarding ownership of mortgaged premises, the legal description of the mortgaged premises, a list of mortgages and assignments of record, necessary defendants to the action, a list of title exception and objections and a tax search.
Upon receipt the attorney will review the Foreclosure Certificate and clear title if necessary. A foreclosure complaint and notice of pendency will both be filed shortly thereafter with the County in which the mortgaged premises are located. As of September 1, 2013 Plaintiff must file a Certificate of Merit along with the Complaint. (For more information regarding the Certificate of Merit click here).
Once the attorney confirms that the Foreclosure Complaint has been filed a copy of the Summons and Complaint will be sent to a service processor for service upon all named defendants. Service generally should take approximately thirty days. Upon receipt of the affidavits of service from the service processor the foreclosing attorney will file the affidavits with the Supreme Court along with an RJI.
Should the foreclosure involve a residential home loan the court will schedule a settlement conference where both sides are obligated to negotiate in good faith. While the matter is in the conference part there is a stay on all litigation. The conference will be conducted by a court attorney Referee or a Judge where the expectation is that both sides will attempt to work towards a mutually agreeable resolution – preferably a loan modification. As the settlement conference stage can be most time consuming stage in a New York residential foreclosure action our firm uses unique techniques such as Modification Math and creating a Running Conversation to cut down on conference adjournments. Further we offer County Specific Preparation so that our approach is uniquely tailored to the Referee and Judges that oversee the process. If the court determines that a settlement is not possible the matter will be Released from the conference part or Sent to IAS whereby the stay on litigation activity is lifted and the Plaintiff may proceed with their foreclosure action.
Upon release from the conference part, or after the time for all defendants to answer has expired in commercial action Plaintiff will file a motion. If the defendants failed to answer the Plaintiff will file an Order of Reference with a Default Judgment. If one or more defendants filed an answer Plaintiff will file a Motion for Summary Judgment with an Order of Reference. Assuming the court grants Plaintiff’s motion the court’s order will, among other things, appoint a Referee to compute the amount owed on the mortgaged premises so as to the determine the amount of Plaintiff’s judgment.
Plaintiff will then file a Final Judgment of Foreclosure and Sale with the court that confirms the Referee’s computations (generally known as the Referee’s Oath and Report), which permits the Plaintiff to schedule a sale and directs the newspaper within which publication of the same is to occur. Plaintiff will confer with the Referee appointed to oversee the public auction to find an acceptable date.
At Friedman Vartolo LLP we firmly believe that our efficient approach to foreclosure litigation enables us to move your action from complaint to judgment quicker than our competitors. In addition, we use attorneys to do attorney work to ensure that all statutes and court imposed rules are strictly adhered to.