The foreclosure process starts by the financial institution serving the homeowner with a summons and complaint. In response to the summons and complaint the homeowner must file an answer. The answer must be filed within 20 days if the summons and complaint was served on the homeowner personally and 30 days if the summons and complaint was served by any other means. The purpose of the answer is to allow the homeowner to put in a defense to the foreclosure lawsuit. If the homeowner fails to put an answer in, it is considered they have defaulted. A default is an acknowledgment the homeowner owes the debt and that the bank is entitled to move forward with the foreclosure without opposition from the homeowner. The failure to file an answer to the summons and complaint also keeps the homeowner in the dark with regard to the progress of the lawsuit against the homeowner. The homeowner can end up with the final notice that their home is going to sale and they would not have been able to take any action to stop the sale.
Request for Judicial Intervention
After the financial institution initiates the lawsuit they must file what is referred to as a Request for Judicial Intervention (or an “RJI”). This notifies the court that a lawsuit has been initiated and they ask the court to schedule a mandatory settlement conference with regard to the foreclosure.
The foreclosure settlement conference is supposed to take place within 60 days of the filing of the affidavit of service by the financial institution with the clerk of the court. The court usually sends out a notice to both the homeowner and the bank’s lawyers. The notice states the date, time and place of the conference and it advises the homeowner what if any documents the homeowner should bring to court with them.
Litigation
Litigation in the foreclosure case cannot take place while the case is still before the mandatory settlement conference part. Once the case leaves the mandatory settlement conference part the homeowner can, if they put an answer in, engage in what is called the discovery process. The purpose of discovery is to allow the opposing parties to a lawsuit to obtain records, documents, information, the names of witnesses and any other material necessary to try to prove their case or their defense.
The Summary Judgment Motion
In virtually all foreclosure lawsuits the attorneys for the financial institution bring a summary judgment motion. The purpose of the summary judgment motion is to strike the homeowner’s legal defenses. The summary judgment motion is a request by the financial institution for the court to rule in favor of the lender and strike the answer of the borrower. The financial institution will allege the borrower cannot produce evidence supporting their defenses in their answer. If the judge grants the financial institution’s summary judgment motion, the homeowners’ case is usually considered to be lost. The homeowner at that point can file an appeal with the Appellate Division. This is an appeals court that has the authority to overturn decisions by Supreme Court Judges.
Once the summary judgment is granted to the financial institution all the homeowner’s attorneys can do is usually tie the case up in court and stop the house from going to sale quickly. However, for most practical purposes the homeowner has lost the case if the summary judgment motion is granted.
Elliot S. Schlissel, Esq. is a foreclosure defense lawyer. He has been helping homeowners keep their home for more than 3 decades. He can be reached for a free consultation at 800-344-6431 or e-mailed at: Elliot@sdnylaw.com.
