How to answer a Complaint in a foreclosure case in New York
Authored By: Empire Justice Center - Rochester Office
To respond to a foreclosure Complaint, you must file a legal document called an Answer.
In an Answer, you either admit or deny allegations made in a Complaint. In an Answer in a foreclosure case, however, you will most likely deny. You will also explain why you think the bank should not be allowed to move forward with the case.
You will fill out three sections:
- The caption
- Your defenses and counterclaims
- The signature page
Download the form for free from our partner Empire Justice Center
The caption is the document header. It contains basic information about the case and should be the same on every document in the case.
The easiest way to fill out the caption is to copy the information from the caption in the Summons or Complaint.
Page 1 defenses and counterclaim definitions
Lack of Standing
Standing means the right a person or entity has to bring a lawsuit. Think of it as having “a dog in the fight.” In foreclosure cases, standing refers to whether the lender owns your mortgage. The lender must own your mortgage in order to bring a foreclosure case against you.
Check this box if you believe that the lender did not own your mortgage when it brought a foreclosure case against you. By checking this box, you ask the court to make the lender prove that it was the owner of your mortgage at the time it brought the foreclosure case against you.
A few things to note:
- If you check this box, the lender will not be allowed to foreclose on your home until it has proven it has standing.
- If you do not check this box now, you may not be able to claim later that the lender was not the owner of your mortgage at the time it started the case.
If you check this box, also check the next box for a Foreclosure Cause of Action.
Foreclosure Cause of Action
Cause of action, in law, means an acceptable reason to take legal action against another person or entity.
This defense is similar to Lack of Standing, except that for this defense, you do not have to have reason to believe that the lender does not own your mortgage. The court will still require the lender to prove it owns your mortgage before the case continues.
Check this box if you checked the Lack of Standing box above. Ownership of the mortgage is required to have cause, so if the lender does not own your mortgage, they do not have sufficient cause.
Statute of Limitations
When you miss a mortgage payment, the lender has six years to sue you for the missed payment. If the lender does not sue you within six years of the missed payment, it can never sue you for that payment.
Check this box and the one underneath it if it has been more than six years since you have made a mortgage payment.
Statute of Limitations (on the entire debt)
In a foreclosure action, your mortgage debt gets what’s called “accelerated.” This means that the entire debt becomes due, not just the missed payments.
If you were previously in foreclosure and your mortgage debt was accelerated, and more than six years have passed since that case was filed, it is possible that the bank cannot collect the entire debt.
Page 2 defenses and counterclaims definitions
Improper Service of the Summons and Complaint
In a foreclosure case, the bank must serve you with a Summons and Complaint. These two important documents notify you that the bank is bringing a foreclosure lawsuit against you. The court has strict rules for service, and so if the bank did not follow them, you have a legitimate defense.
A Summons and Complaint was properly served if it was:
- Handed to you in person; or
- Left at your home or business with a “person of suitable age and discretion” with another copy mailed within 20 days to your home or business; or
- Attached to your home or business door, with another copy mailed within 20 days to your home or business.
If you were not served with a Summons and Complaint in any of the three ways described above, check this box.
Notice of Default
In a foreclosure case, when your mortgage is 45-60 days overdue, the bank is required, by law, to send you a Notice of Default. This is a letter that states you are in default, which means your entire debt is due immediately, not just your missed payments.
Check this box if you never received such a Notice of Default from your bank.
Reverse Mortgage Notice Requirement
With a reverse mortgage, the borrower must keep up with tax and insurance payments. If the borrower fails to keep up with the tax or insurance payments, the bank can foreclose on him or her.
New York has special rules for reverse mortgage foreclosures, one of which is that when a lender intends to foreclose on a reverse mortgage, it must notify the borrower in writing.
The notice must state that:
- Failure to make tax or insurance payments can lead to termination of the mortgage;
- The homeowner has the right to cure the default by making the payments; and
- The homeowner has 30 days to make the payments which will bring the reverse mortgage current.
Check this box if you have a reverse mortgage that is being foreclosed for failure to pay taxes and/or insurance, and you did not receive the notice described above.
90-Day Notice Requirement
Before every foreclosure case starts, the bank is required by law to send the borrower a 90-day pre-foreclosure notice. The notice must:
- State, “YOU COULD LOSE YOUR HOME.”;
- State the number of days your mortgage payments are late;
- State the amount you need to pay to bring your loan current;
- Include a list or housing counselors or legal service providers that offer free help in foreclosure cases; and
- Be sent by both regular and certified mail.
Check this box if:
- You did not receive two copies of this 90-Day Pre-Foreclosure Notice;
- The 90-Day Notice did not include the information described above; or
- The bank started a foreclosure case against you before 90 days had passed.
90-Day Notice Filing Requirement
The law requires that your lender file a copy of the 90-Day Notice with the Department of Financial Services. This filing must be made within three business days after the lender mailed the Notice to you.
The law also requires the lender to state in the foreclosure Complaint (the document that you are answering) that it filed the 90-Day Notice with the Department of Financial Services within the time period required.
Check this box if:
- The Complaint does not say that the lender filed the 90-day Notice with the Department of Financial Services within three days of mailing the Notice to you; or
- You believe that the lender did not file the Notice (even though the Complaint says the lender filed the Notice).
“Help for Homeowners in Foreclosure” Notice Requirement
The law requires that your lender include a special notice with the foreclosure Summons and Complaint that is served on you. This special notice is called “Help for Homeowners in Foreclosure.” The notice must be printed in bold, large type. The notice must be on colored paper.
Check this box if the foreclosure Summons and Complaint you received did not include this special notice in large bold type on colored paper.
Pending Foreclosure Action
New York law does not allow a party to bring a lawsuit when there is another lawsuit pending that involves the same parties and issues.
Check this box if:
Your lender started a different foreclosure action before it started the case that you are responding to, and that earlier foreclosure action is still in court.
Page 3 defense and counterclaim definitions
Real Estate Settlement Procedures Act Early Intervention Requirement
Federal law requires your bank to reach out to you when you are behind on your mortgage to talk about various options as alternatives to foreclosure, such as a loan modification or a short sale. The lender must perform this outreach before bringing a foreclosure case against you.
Check this box if your lender did not contact you to discuss your options before bringing the foreclosure action.
Real Estate Settlement Procedures Act Pre-Foreclosure Review Requirement
Under federal law, a lender may not start a foreclosure case:
- Before the loan is more than 120 days overdue
- If you have applied for a loan modification and the lender has not yet decided whether to approve or deny it
- If you have been denied a loan modification and are still within the timeframe to appeal this decision (or have a pending appeal)
- If you had a loan modification or short sale application with the lender at the time this foreclosure case was led.
Check this box if any of the above happened to you.
FHA Pre-Foreclosure Requirements
If your loan is not an FHA loan then this section does not apply to you.
There are special rules that apply to mortgages insured by the Federal Housing Administration. You will know if your loan is an FHA loan because your Note and Mortgage will contain an FHA case number on the first page. Also, your monthly mortgage statements will show an FHA case number.
FHA lenders must do certain things before they can start a foreclosure case, including:
- The lender must send the borrower a Notice of Default before the end of the second month in which a payment is not received;
- The lender must try to arrange an in-person interview with the borrower before the borrower misses three monthly payments;
- The lender must evaluate the borrower for loss mitigation options before the borrower misses four monthly payments; and
- The lender may not bring a foreclosure case until the loan payments are behind by three full months.
Check this box if any of the events listed above happened to you.
Page 4 defense and counterclaim definitions
VA Pre-Foreclosure Requirements
If your mortgage is through the Veteran’s Administration, your lender cannot start a foreclosure case until every reasonable effort has been made to arrive at some other solution.
Check this box if you have a VA loan and feel your loan servicer did NOT make reasonable efforts to avoid filing the foreclosure by working with you.