Long Island Foreclosure Defense 101: The Failure of your previous Attorney to File an Answer is not
The amount of foreclosures on Long Island is devastating. Homeowners facing a foreclosure on Long Island should be sure to hire competent counsel and, as we see here, not disregard the large packets of papers left on the doorstep or handed to homeowners by a process service. Filing an answer preserves the homeowner's rights and defenses. It is of vital importance and should be done by competent counsel so that certain affirmative defenses are not waived, such as standing or other CPLR requirements by the Plaintiff Bank. Here, this case examines what happens in a Suffolk County Foreclosure when an answer is not filed and the house is going up for public sale.
The house is ready to go to public sale. Here the defendant (homeowner) asserts a defense as to why he or she failed to file an answer and the court denies the homeowner's reason for failure: "The excuse defendant proffers rests upon the unsubstantiated claim that when he retained his former attorney, he believed that his attorney would defend him in the action and file an answer." Pp. 3. Even though the defendant provides this in an affidavit it is not enough to meet the burden for filing a late answer in a foreclosure action. Homeowners - hire a competent attorney - call the Law Offices of Cory H. Morris is you are facing a Long Island Foreclosure.
The standard for filing a late answer in a foreclosure action is as follows:
It is well established that relief pursuant to CPLR 5015(a)(1) and CPLR 3012(d) (leave to serve a late answer) are available only upon a showing of a reasonable excuse for the default in answering and a meritorious defense to the claims (see Eugene DiLorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 NY2d 138. 501 NYS2d 8 ; Deutsche Bank Natl. Trust Co. v. Gutierrez, 102 AD3d 825, 958 NYS2d 472 [2d Dept 2013]). The determination of that which constitutes a reasonable excuse for a default lies within the sound discretion of the trial court (see Hodges v. Sidial, 48 AD3d 633, 852 NYS2d 340 [2d Dept 2008]; Savino v. "ABC Corp.", 44 AD3d 1026. 845 NYS2d 789 [2d Dept 2007]; Juseinoski v. Board of Educ. of the City of N.Y., 15 AD3d 353, 790 NYS2d 162 [2d Dept 2005]). Since a successful motion pursuant to CPLR 5015(a)(1) and CPLR 3012(d) results in a vacatur of the default and an opportunity to answer and defend on the merits (see David v. Barnes. 130 AD2d 703. 515 NYS2d 817 [2d Dept 1987]), the moving papers should include a demand for leave to serve and file a proposed, verified answer and a copy of such answer (see Gershman v. Ahmad, 131 AD3d 1104. 16 NYS3d 836 [2d Dept 2015]; citing Bekker v. Fleischman, 35 AD3d 334, 825 NYS2d 270 [2d Dept 2006]). This standard governs applications made on grounds of excusable default that are made both prior and subsequent to a formal fixation of a default on the part of the defendants by the court pursuant to CPLR 5015(a)(1) or 3012(d) (see Bank of N.Y. v. Espejo, 92 AD3d 707, 939 NYS2d 105 [2d Dept 2012]; Integon Natl. Ins. Co. v. Noterile, 88 AD3d 654, 930 NYS2d 260 [2d Dept 2011]; Ennis v. Lema, 305 AD2d 632, 760 NYS2d 197 [2d Dept 2003]). Where the application successfully results in a vacatur of the default, the moving defendant will be afforded the opportunity to appear by answer and defend by contesting the merits of the plaintiff's claims. Consequently, motions pursuant to CPLR 5015(a)(1) and/or 3012(d) should include a proposed answer verified by one having knowledge of facts constituting a potentially meritorious defense (see CPLR 3012[d]; Gershman v. Ahmad, 131 AD3d 1104; Ogman v. Mastrantonio Catering, Inc., 82 AD3d 852, 918 NYS2d 375 [2d Dept 2011]). Where the motion is supported only by an affirmation of counsel or a proposed answer that is verified only by counsel without first hand knowledge of the facts alleged, no showing of a meritorious defense is made (see Gershman v. Ahmad, 131 AD3d 1104). Pp. 2-3 (external quotation marks omitted and internal citations preserved).
The instruction to people facing foreclosure is clear: do not fail to file the answer. Failure to file an answer because of a previous attorney is not a reasonable excuse. Failure to hire competent counsel to defend you in your foreclosure action is not a reasonable excuse. Indeed, the Court holds that "[a]s the defendant has failed to offer a reasonable excuse, it is unnecessary to consider whether he demonstrated the existence of a potentially meritorious defense." Pp. 3. The Court does not even get to the second part of the inquiry because the failure to hire competent counsel, the failure to pay an attorney to file an answer and/or the failure to file an answer will not allow someone facing foreclosure to file a late answer.
Homeowners be forewarned - hire a competent foreclosure defense attorney. Call the Law Offices of Cory H. Morris for a case evaluation.
The case is US Bank Trust, NA. v. Romano, 13-20919, NYLJ 1202758471364, at *1 (Sup., SUF, Decided May 5, 2016)