Legal Question in Real Estate Law in New York

Re: forclosure

Wow. The answer is not going to fit in the keystroke limit for lawguru.

The short answer is, hire an attorney who knows what s/he is doing.

Rather longer, and in nowhere near the detail needed really to understand the process (this outline is for a residential mortgage; commercial mortgages can be run differently):

1. Decide whether the debt can and should be accellerated. In some cases, the mortgage is already "out of time" and does not need to be accelerated. In other cases, the mortgage may still have years to run. Accelerating the debt gives you more leverage, but it's not always necessary or appropriate. There are several tax issues that may point in the direction of NOT accelerating the loan, especially when dealing with a superjumbo loan. If you're going to accelerate, then do so as your very first or second step. (Step One really should be to hire a lawyer.)

2. Order a title search. You have to name as defendants in your foreclosure suit (a) the people who signed the mortgage note and any guarantors and (b) all persons having an interest in the premises that is subordinate to your mortgage lien.

3. Prepare a summons, complaint and notice of pendency. You'll need to get the forms from a book, like McKinney's Forms for the Civil Practice or (my favorite) Carmody-Wait 2d Cyclopedia of New York Practice. If you're doing this without a lawyer, then the summons has to be signed by the clerk of the court. Omit this step and you're wasting your time.

4. Have the title company continue the title down "to date" and if they find no new interests, then the title company should file the summons, complaint and notice of pendency.

5. Serve the defendants within the time prescribed by law.

[to be continued]

This post is not legal advice and does not create an attorney-client relationship. It is a comment on the legal question posed by the poster and should not be relied upon unless and until an attorney-client relationship is entered into. Doing so would require signing an engagement letter and depositing a retainer to secure payment of legal fees.

Re: forclosure

This is a continuation of the prior response....

6. Now the fun part. If none of the defendants interposes an answer on the merits, then you will move for an order of reference (#7 below). However, a defendant might move to dismiss the foreclosure suit. You'd have to respond to the motion. A defendant might serve an answer and discovery demands. You'd have to respond to the discovery demands, determine whether you need/want discovery yourself. Either way, you have to meet deadlines for completing discovery and either move for summary judgment or place the case on the calendar for trial. If you win the summary judgment motion, then it's just as if nobody had opposed the foreclosure and proceed to #7 below. If you lose the summary judgment motion, then you place the case on the calendar and proceed to trial (which is to the judge without a jury). Of course, if you lose the trial or if you don�t just fail to secure summary judgment but actually lose the case, well, then, it�s back to the drawing board.

7. Whether all the defendants default (or serve a notice of appearance and waiver) or you win a motion for summary judgment or trial, the next step is to secure an order of reference to have an attorney calculate the amount that is due under the mortgage. IN the case where there is no opposition to the foreclosure, the referee also verifies that you have a valid note and mortgage and takes proof of payment of taxes and insurance.

8. The referee reports the amount due on the mortgage. You have to move to have the report confirmed and for a judgment of foreclosure and sale.

9. Once the judgment of foreclosure and sale is signed by the judge, you have to ENTER the judgment. Complicated and arcane ceremony.

10. Once the judgment is entered, you prepare a notice of sale (to be published in a Newspaper). The referee appears at the appointed time and auctions the property. Where things go from there depends on whether there are other bidders and whether the other bidders overcall the mortgagee's upset price. IN the usual case, nobody else bids, the mortgagee takes back the property for a nominal sum, and then has to go about the process of getting possession of the property...for which one goes back to court to secure a Writ of Assistance to have the Sheriff put the mortgagor out of possession.

This is just a brief look at the process. Make a mistake, even a trivial one, and the process might go back to square one.

This can be a long and complicated process. It's not for amateurs. Foreclosure is a hypertechnical field and who represents himself hath a fool for a client.

This post is not legal advice and does not create an attorney-client relationship. It is a comment on the legal question posed by the poster and should not be relied upon unless and until an attorney-client relationship is entered into. Doing so would require signing an engagement letter and depositing a retainer to secure payment of legal fees.