The Western New York Law Center's foreclosure unit provides a comprehensive array of services to homeowners facing foreclosure. We strive to provide compassionate, professional, and expert representation to guide homeowners through the foreclosure process and to help homeowners assess all available options.
Representation at New York State Mandated Settlement Conferences to Negotiate a Settlement of the Lawsuit
Whether the homeowner is looking to retain or leave the home, the Law Center can assist in assessing options, navigating the application process with the mortgage servicer, representation at court mandated settlement conferences, reviewing settlement agreements, denials, and challenging denials where appropriate.
Where appropriate in the discretion of the Law Center, full representation to litigate claims and defense is available. If we are not able to fully represent you, we can assist with completing a pro se answer or providing general advice about claims and defenses.
Mortgage Discharge Actions
Where appropriate in the discretion of the Law Center, full representation to litigate claims and defenses is available. If we are not able to fully represent you we can assist with completing a pro se answer or providing general advice about claims and defenses.
Surplus Monies Proceedings
For former owners of a home sold in a tax or mortgage foreclosure auction we can assist in recouping any equity that you had above the amounts foreclosed upon. Any liens on the property at the time of the auction will be considered and may potentially claim all or a portion of the funds.
Tax Foreclosure Representation
Representation in negotiating payment plans to catch up on delinquent taxes, and, in limited circumstances, representation to challenge a tax foreclosure auction.
Advice and Counsel
Where we are unable to assist in full capacity, we are always happy to provide advice and guidance where we can about any of your foreclosure questions and needs.
We can help homeowners in default on their loans explore loss mitigation options prior to a foreclosure filing.
Below we have compiled basic information surrounding NYS foreclosures, frequently asked questions and key terms you may need when navigating the foreclosure process.
Steps in a NYS Foreclosure Process
The average foreclosure in New York State takes about 15-24 months from the date of the first missed payment. Below is a basic overview of the path of a foreclosure action.
Missed Payments & Acceleration Letter
Once payments are missed, the lender will send an acceleration letter to the borrower, which states that the lender will accelerate the total amount of the mortgage if the arrears are not paid in full by a certain date. This letter is usually not sent until the borrower is at least 2-3 months in default. At this point, the lender is looking for the entire amount of arrears and will generally not accept partial payment.
New York State law requires that the lender send a specific notice to the borrower at least 90 days before filing a Summons & Complaint.
Lender Files Lis Pendens
A lis pendens is a legal document filed by the bank attorney in a foreclosure matter either prior to or at the same time that the attorney files the summons and complaint to initiate the foreclosure case. The law requires the bank attorney to file this document prior to filing the complaint to put the world on notice there is litigation pending over a piece of real property.
Lender Files and Serves a Summons & Complaint
The summons and complaint is filed with the court and initiates the lawsuit. The borrower is served and may or may not answer the complaint.
Mandatory Settlement Conference is Scheduled
After the borrower has been served, the lender must file an affidavit with the court to show that they have served all parties and also file a Request for Judicial Intervention (RJI) which allows the court to schedule a settlement conference. The conference is usually scheduled within 60 days after the RJI is filed. There may be several settlement conferences held over many months. The foreclosure action is on hold during this time. If the borrower or their attorney does not appear at the first conference, no further conference will be held and the case will proceed to the next step.
Foreclosure is Discontinued or Case Proceeds to a Judge
If an agreement is reached within the settlement conference, the lender must discontinue the foreclosure within 90 days after settlement. If an agreement is not reached, if the borrower failed to appear at the first conference, the case will be assigned to a judge and proceed.
Motion for Order of Reference
If the borrower did not file an answer, the lender will file a Motion for Order of Reference. If the borrower filed an answer, the lender will file a Motion for Summary Judgement.
Motion for Judgement of Foreclosure or Trial
If the judge grants the Motion for Order of Reference, a referee is appointed to compute the amount due to the lender. Once the referee’s report is done, the lender will make a motion for Judgement of Foreclosure and Sale, which asks the judge to give them an order allowing them to sell the property at auction.
If factual disputes remain from the borrower’s answer, a trial will be held to determine whether the borrower will prevail and the foreclosure will be dismissed or whether the lender will be permitted to proceed with foreclosure.
Once the lender has been granted a Judgement of Foreclosure and Sale by the court, the lender can hold a public auction (usually at the courthouse) and anyone, including the lender may bid. Once payment is made and the sale is complete, the winning bidder will take ownership of the property. If the borrower is still residing in the property, the new owner can begin the process to evict the borrower from the property.
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