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Ray
Ray, Lawyer
Category: Real Estate Law
Satisfied Customers: 36984
Experience:  Texas Attorney for 30 years dealing in real estate
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Ray, you have been extremely helpful in the past. I have

Customer Question

Ray, you have been extremely helpful in the past. I have another question for you. Just to remind you I am in NJ. My mortgage company is foreclosing on my property and have advertised the time and date of foreclosure sale. Is the mortgage company required
to have the sheriff serve me with notice before notifying the public and advertising the sale? Also, I was told I have a one time right to delay the sale for 30 days. How do I file that request?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Ray replied 1 year ago.

Hi and welcome to JA. I am Ray and will be the expert helping you today.

In New York, foreclosures are judicial, which means the lender (the plaintiff) must file a lawsuit in state court here.

The lender initiates the foreclosure by filing a complaint with the court. The complaint is served (given) to the borrower, along with a summons that typically provides 20 days to file an answer (if the complaint and summons were served in person) or 30 days (if service was by mail or another way), as well as a "Help for Homeowners" notice advising the homeowner of his or her rights during the foreclosure process.

In NY For all foreclosure actions involving owner-occupied properties, New York law requires the court to hold a mandatory settlement conference within 60 days of the filing of the proof of service with the court clerk. At the settlement conference, the lender and homeowner attempt to reach a mutually agreeable way to avoid foreclosure.

You should also know if you cannot come to an agreement at the settlement conference and if you do not respond to the court action within the specified amount of time, the lender can get a default judgment from the court. This means you automatically lose the case.

To protect yourself you should file an answer, the lender cannot obtain a default judgment. At this point, the lender will most likely file a motion for summary judgment. This type of motion requests that the court grant judgment in favor of the lender because there is no dispute as to the important facts of the case, the homeowner’s defense lacks merit, or does not prove wrongdoing. If summary judgment is denied, then a trial will occur.

If the lender is granted summary judgment or trial, the court will enter a final judgment of foreclosure against you. A sale date is set and published in a newspaper once a week for four weeks (or twice a week for three weeks before the sale date).

So here you want to file an answer and also ask for a settlement conference.Both of these give you the best chance to resolve it or delay as long as possible.

I appreciate the chance to help you today. Please let me know if you have more follow up.Thanks again.

Expert:  Ray replied 1 year ago.

Answer forms and self help here.

https://www.nycourts.gov/courthelp/Homes/foreclosureAnswering.shtml

Make sure to file your answer within 30 days to avoid default and put everything in dispute.Also when you file here write the judge and ask for a settlement conference.

I wish you the best here.Appreciate the chance to help today.

Customer: replied 1 year ago.
Ray, I'm in NJ. I have already been through most of the process. I filed a motion to vacate for many reasons, most importantly, never being served documents. I had the hearing, in front of a judge, on 10/15/15 and my testimony was ignored by the judge who ruled against me by reading from his pre written, verdict.
Question: The sale has been advertised in the newspaper. Is the mortgage company legally required to serve me the notice of sale PRIOR to listing the sale in the newspaper? If not when are they required to have the sheriff serve me with the documents?
Also, I was told I have a 1 time right to delay the sheriff sale? How do I go about exercising that right?
Expert:  Ray replied 1 year ago.

You are served with foreclosure suit when it is filed.If the lender is granted summary judgment (or you lose at trial), the court will enter a final judgment of foreclosure against you. A sale date is set and published in a newspaper once a week for four weeks (or twice a week for three weeks before the sale date).This gives you more time here.

Then they still have to file for eviction.The lender often also offers you cash for keys to leave in lieu of evicting you.But you can file answer to eviction here and delay it even more.And answer to eviction suit will give you likely another 30 days until it can be heard.

Expert:  Ray replied 1 year ago.

The foreclosure process in New York currently takes about 445 days (15 months) from the date of the first missed payment to the sale of the home.

Expert:  Ray replied 1 year ago.

Chapter 13 bankruptcy is a means to keep your property and you may want to consider that as a last resort here.

Expert:  Ray replied 1 year ago.

Chapter 13 can allow you to catch up on your past-due mortgage payments while under the protection of the automatic stay. Your Chapter 13 Plan requires monthly payments to be made to your Chapter 13 Trustee for a period of either 36 or 60 months, but the Trustee only pays your pre-bankruptcy mortgage arrears. You must also make your regular mortgage payments (and property tax payments if they are not escrowed) as they come due during the pendency of your Chapter 13 case.

Expert:  Ray replied 1 year ago.

See reference above and consider a lawyer to file Chapter 13 here.

Expert:  Ray replied 1 year ago.

They offer a free consultation here.

Thanks again and good luck.

Customer: replied 1 year ago.
they will have to file for eviction before the sheriff sale?
The home is a secondary home does that change the law regarding the mortgage company filing for eviction?
Once again I am in NEW JERSEY not NY.
Expert:  Ray replied 1 year ago.

No the3y still have to file to evict the tenants here and serve them.They would answer here and delay it a bit.

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