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What Is A Foreclosure?
Foreclosure is the legal process in which a lender attempts to recover the balance of a loan from a homeowner who has stopped making payments on their home loan. If the homeowner can't pay off their outstanding debt, negotiate a loan modification or sell the property through short sale, the home will go to auction. If the property does not sell, the lender will then take possession.
New York State's Mortgage Foreclosure Process
The homeowner falls behind on their mortgage payments.
The acceleration letter tells the homeowner that the total amount of the loan will be due immediately if the past amount due is not paid by a certain date. This letter is usually sent when the homeowner is 2 to 3 months in default
90 day pre-foreclosure filing notice
Under New York State law, the lender must send the homeowner a special notice at least 90 days before filing a foreclosure summons and complaint.
LLS PENDENS And Summons & Complaints
A Lls Pendens is a pending lawsuit which is filed in court against the homeowner. A summons and complaint is also filed which initiates the lawsuit allowing the mortgage lender to serve the homeowner.
AFFIDavit OF SERVICE
The lender files an Affidavit of Service with the court, which provides proof that the homeowner was properly served with the lawsuit.
request for judicial intervention & Attorney affirmation
The lender files the proper documentation notifying the court that a mandatory settlement conference must be scheduled.
Homeowner files an answer to the lawsuit
The homeowner must file an answer to the summons and complaint within 20 days if they were served in person or within 30 days if they were served by mail or another way.
*NOTE: If the homeowner fails to file an answer they will default.
mandatory settlement conference
Within 60 days of filing the affidavit of service, the court must hold a mandatory settlement conference to see if the lender and homeowner(s) can reach a mutually agreeable solution.
pre trial motions & discovery phase
If a settlement can't be reached in the settlement conference, the pre-trial litigation process will begin. The opposing parties in the lawsuit request documentation from each other. Any defenses the homeowner made will be litigated at this phase. The lender may file a Summary Judgement or a Default Motion.
If the case is not resolved by settlement or by motion, the lawsuit proceeds to trial.
Order of reference
The court appoints a referee to prepare a report calculating the outstanding balance on the mortgage.
Judgement of foreclosure & Sale
The court enters a judgement of foreclosure and sale that appoints a referee to auction the property.
After the judge signs the Judgment of Foreclosure and Sale, the lender publishes a notice about the auction in a newspaper at least 30 days before the auction date.
A court appointed referee conducts a public auction of the property.
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