New York Homeowners Can Fight Back: Strategic Defense Against Foreclosure Summary Judgment Motions

Facing foreclosure in New York can feel overwhelming, but homeowners have powerful legal tools at their disposal to challenge lenders’ attempts to fast-track the process through summary judgment motions. Understanding how to effectively oppose these motions can mean the difference between losing your home and securing the time needed to explore alternatives like loan modification or full litigation.

Understanding Summary Judgment in Foreclosure Cases

In fact, the plaintiff-lender will generally make a motion for summary judgment in nearly every New York foreclosure action. A motion for summary judgment is the main motion in a foreclosure case in that it is intended to and often resolves most of the important legal issues in a contested foreclosure proceeding. A motion for summary judgment is a request for the court to rule in favor of the lender even though the borrower filed an Answer in response to the summons and complaint. The lender files a Motion for Summary Judgment if it believes the borrower’s defense lacks merit (the evidence is weak or doesn’t prove wrongdoing).

For homeowners, this represents a critical juncture where a defendant does not have to prevail in having the court order an evidentiary hearing in order to successfully oppose the plaintiff’s motion for summary judgment. The defendant just has to show that the plaintiff can not meet its burden for the motion for summary judgment in terms of credible affidavits, documentation and legal standing.

Key Defense Strategies Against Summary Judgment

Challenging Standing and Documentation

Another common defense to a lender’s summary judgment motion might challenge the assignment of the mortgage as defective. Although a motion to dismiss may raise lack of standing, your defense attorney may lack the documentation necessary to determine whether your lenders properly assigned your mortgage until after completing discovery. In this case, you may employ a defense to the motion for summary judgment and cross-move for summary judgment due to lack of standing.

Now, for “home loans,” defendants can assert the defense of lack of standing at any stage of the foreclosure action even if they did not assert it at the outset in their answer or in a pre-answer motion to dismiss. Critically, now, the failure to answer or to appear at any stage of the foreclosure action may never result in a waiver of this defense. This recent change in New York law provides homeowners with additional protection against improperly documented foreclosure actions.

Discovery and Timing Issues

If a plaintiff submits a Motion for Summary Judgment prior to the completion of the discovery, the defendant may not have all of the information they need to properly oppose the motion. In fact, New York court have held that “summary judgment motions are also premature when the movant has not responded to all discovery demands” or “when the time to conduct discovery has not lapsed.”

Homeowners should ensure their attorneys request all relevant documents from lenders, including the original note, mortgage assignments, and servicing records. For example, a plaintiff-lender that produces an affidavit from the third loan servicer who held your loan cannot testify to the facts of a loan modification submitted to the first loan servicer because she lacks direct knowledge of those facts. If this is essential to the case, it may result in the court denying summary judgment.

Technical Compliance Defenses

Foreclosure defenses do not usually deny the defendant’s obligations, but focus on the technical compliance of the lender with the many statutory and regulatory requirements as to mortgage lending, recording, servicing administering, modifying, and notice. As a result foreclosure defendants in their answer, oppositions to motions, cross motions or in their order to show cause have many potential defenses that focus on: problems at the closing, problems with the loan, problems with the loan documents, problems with the mortgage accounting and servicing, problems with pre-foreclosure notices, problems with service of process and jurisdiction, problems with standing, problems with the modification and/or negotiation process, problems in the litigation and/or counter-claims based on violations of laws by the the plaintiff.

One crucial area involves the 90-day pre-foreclosure notice requirement. New York Real Property Actions and Proceedings Law (RPAPL) Section 1304 (4) requires sending notice to the mortgagor at least 90 days before a foreclosure action commences. Section 1304 specifies that the proper form and service of such notice is a “condition precedent to commencing a foreclosure proceeding” in New York. This means that before a lender can file a foreclosure action in the supreme court of the county where the property is located, the lender must send proper notice in accordance with the requirements of the statute.

The Importance of Professional Representation

The motion for summary judgment and/or motion for an order of reference in a foreclosure case are critically important motions that a difficult to adequately oppose. Most attorneys who do not concentrate in foreclosure defense lack the knowledge, experience and specialization to mount strong opposition to motions to summary judgment that are necessary to overcome the proclivity of courts to grant these types of motions without a deep analysis.

For homeowners facing a Foreclosure Motion, working with experienced foreclosure defense attorneys becomes essential. The Law Office of Ronald D. Weiss, P.C., located in Melville, Long Island, has been providing specialized foreclosure defense services since 1993. The Law Offices of Ronald D. Weiss, PC have been supplying expert bankruptcy, foreclosure defense, and debt negotiation services since 1993. We offer practical, compassionate solutions customized to each client’s financial situation. With over 30 legal professionals on our team, we have the resources to handle your important legal matter.

Responding to Summary Judgment Motions

To continue fighting the foreclosure, the borrower must file an Answer to the Motion for Summary Judgment and include documentation that supports their defenses. This response must be comprehensive and address each element of the lender’s motion while raising all available defenses.

The affidavit accompanying the summary judgment motion must recite the material facts at issue and affirmatively show either why defense to the foreclosure lacks merit or why the defense itself is sufficient to merit judgment in favor of the defaulting borrower. The court will grant summary judgment on behalf of the moving party only when it finds that a jury need not decide any material facts in dispute and the foreclosure or defense to the same is fully established.

Strategic Considerations and Outcomes

Because an entry of a judgment of sale at the summary judgment stage of the foreclosure proceedings generally results in both a quicker and less expensive adjudication of the matter, opposing attorneys will probably engage in this type of motion practice. However, successful opposition can provide homeowners with valuable time to pursue alternatives.

If the court denies summary judgment, the case will typically proceed to trial. Although motion practice can delay litigation, it may result in dismissal of the foreclosure complaint or even a judgment in your favor.

The firm’s approach emphasizes highly effective legal help that is both compassionate and affordable. We often use multiple debt solution tools – bankruptcy, litigation, and negotiation – together as part of a larger strategy where they support and strengthen each other. For each client, we examine all options by considering how realistic they are, the risks versus benefits, timing, costs, and approach. We work with our clients to create a plan that gives them the best chance of successfully resolving their debt problems and overcoming their financial challenges.

Conclusion

Opposing summary judgment motions in New York foreclosure cases requires sophisticated legal knowledge and strategic thinking. With over 30 years of experience in bankruptcy and foreclosure law, the Law Office of Ronald D. Weiss, P.C. provides homeowners with the expertise needed to mount effective defenses. We are Long Island foreclosure defense attorneys who specialize in foreclosure solutions by defending homeowners against foreclosure lawsuits. Timely foreclosure defense is essential to avoid default and protect homeowner rights. We aggressively fight foreclosure motions by filing detailed responses to summary judgment motions, referee appointments, and foreclosure sale requests.

For homeowners facing foreclosure in Nassau or Suffolk County, understanding these defense strategies and working with experienced counsel can make the difference between losing a home and finding a path to financial recovery.