Got served with a Foreclosure in New York? Now what…
When you’re served with a Summons and Complaint in a foreclosure action in New York, you can do a number of things. You can: (1) call a lawyer and go see him/her and discuss options or (2) go to Court and try to appear pro se (on your own) in the matter, or you can (3) do nothing and then freak the hell out when a foreclosure date is set. My opinion is that #3 is insane, followed very closely by #2. In a recently decided case in Suffolk County, which you can find here, a Defendant filed a motion to, amongst other things, vacate a judgment of foreclosure that had been entered as against him. The Defendant, while arguing that he was having good discussions with the lender who was foreclosing on him, also stated he never was served with any Summons and Complaint in the action. The Judge found the motion silly for a number of reasons and denied it. The basic gist was the Judge didn’t buy the mere assertion (no court in NY does) that this person wasn’t served with a Summons and Complaint, without any explicit proof of same. The Defendant also did not proffer any defense to the foreclosure action (another requirement in getting a judgment vacated). So, the sale likely goes through, and this guy loses his house.
I’ve no idea whether or not this Defendant was actually served. I know many people are not served in the way they are required to be, as per the law. Nor, do banks, shall we say, look out for our best interests in foreclosures. However, there is a right and a wrong way to do things. The right way, at the inception of a foreclosure action, when you’ve actually been served, is to avail yourself of the literally hundreds of lawyers that offer free consultations, and figure out what your options are, and if you can afford legal representation. The other thing you can do is go seek the help of any number of bar associations and government agencies. What you should not do, however, is sit and wait and then, years later, say “What do you mean you’re selling the place?” That’s not going to help you. It never did and it never will. I don’t care what the bank did wrong. Once you’re jurisdictionally not in the game (you haven’t appeared), your rights dwindle very, very quickly.
If you really have not been served with a Summons and Complaint, then you shouldn’t just run into Court either. Courts decide these things based on proof. You need proof of where you lived at the time the bank said they served you at a different address. There’s literally tons of ways of dealing with this, but in my opinion, you simply should not file some sort of motion saying “I never got served” without backing it up with something concrete. Remember, this needs to be done correctly to improve your chances of stopping, or even dismissing a foreclosure. Cutting corners here will not get you very far.