Filling out an Answer
Step 1:
FILL OUT THE “CAPTION” OF THE ANSWER
Step 2:
FILL OUT THE FIRST PAGE OF THE NOTICE OF APPEARANCE
Step 3:
CHECK OFF AND EXPLAIN YOUR DEFENSES
Step 4:
ADD ANY ADDITIONAL INFORMATION
Step 5:
FILL IN THE BOTTOM OF THE 4TH PAGE
Step 6:
FILL OUT AND SIGN THE VERIFICATION SECTION
Step 7:
MAKE 2 COPIES OF THE VERIFIED ANSWER
Step 8:
“SERVE” THE PLAINTIFF’S ATTORNEY
Step 9:
FILL OUT THE AFFIDAVIT OF SERVICE
Step 10:
FILE THE VERIFIED ANSWER AND AFFIDAVIT OF SERVICE AT THE COUNTY CLERK
Step 11:
APPEAR AT YOUR SETTLEMENT CONFERENCE
90-Day Pre-Foreclosure Notices (NY Real Property Actions and Proceedings Law § 1304) were inadequate because (check one or both if applicable):
For foreclosure lawsuits filed in New York State after September 1, 2008 on one-to-four-family owner-occupied homes, the Bank is required to send you a Pre-Foreclosure Notice by first- class mail and by registered or certified mail that states: “YOU COULD LOSE YOUR HOME” and list the number of days the mortgage payments are late and the amount of money required to catch up. These Pre-Foreclosure Notices must be given at least 90 days before the foreclosure Complaint is filed. You should raise this defense if you did not receive both copies of this Pre-Foreclosure Notice, or if the foreclosure lawsuit was filed before the end of 90 days after you received the Pre-Foreclosure Notices. Check off the box that applies to your situation. A sample 90-Day Pre-Foreclosure Notice can be found on page 8 of this guidebook.
I did not receive the notice titled “Help for Homeowners in Foreclosure” that was supposed to be served with the Foreclosure Summons and Complaint on a colored sheet of paper (NY Real Property Actions and Proceedings Law Section 1303) (amended 2008).
For foreclosure lawsuits filed after September 1, 2008 on one-to-four family owner- occupied homes, the Bank is required to include a Notice of “Help for Homeowners in Foreclosure” with the Foreclosure Summons and Complaint. This notice must be printed in bold, large type and on colored paper.
An active service member is an owner of the property and is on the mortgage and qualifies for Active Military Service protections under state or local law (Federal Service Members Civil Relief Act, 50 App. U.S.C. 501 et seq.; and New York State Soldiers’ and Sailors’ Civil Relief Act, NY Military Law Section 300 et seq.)
Active-duty members of the armed forces, National Guard and reservists, and their dependents and co-debtors have special rights under federal and New York State laws to interest rate reductions on mortgages and other debts, to request a stay of foreclosure, and to avoid a tax foreclosure sale. Homeowners who are serving active military duty and are facing foreclosure should advise their mortgage lender, servicer, and the court in writing, and immediately seek assistance from a Judge Advocate General (JAG) Corps or other attorney.
Homeowner’s Mental Disability or Incompetence (NY Civil Practice Law and Rules Section 1202)
If you are working with a homeowner whom you believe cannot defend himself or herself due to limited mental competence, you should ask the court to appoint a “Guardian Ad Litem” to represent the homeowner’s interests during the lawsuit. In addition, if you believe that the homeowner was not mentally competent at the time he or she signed the mortgage loan, you should describe in detail the timing and evidence of the homeowner’s incompetence, and immediately seek assistance from an attorney.
I am eligible for the Home Affordable Modification Program (“HAMP”) because it meets the following qualifiers: (1) My loan is secured by a one-to-four unit property, co-op, or condo; (2) This is my principal residence; (3) The loan was originated on or before January 1, 2009; and (4) I cannot afford my monthly mortgage payments. The loan servicer failed to comply with HAMP for the following reason(s) (check one or both if applicable):
The federal Home Affordable Modification Program (“HAMP”) was designed to help homeowners that are facing trouble with their mortgages, and participating banks must follow Treasury guidelines in implementing the program. These guidelines ensure that homeowners are reviewed fairly to see if they qualify for the program. You should use this defense if you feel that your Bank did not review you for the HAMP program at all or you were incorrectly rejected from the HAMP program. If there is another HAMP-related issue you are facing, check the “Other” box and explain the issue precisely.
My loan is insured by the Federal Housing Administration (“FHA”). The loan servicer has not complied with regulations of the Department of Housing and Urban Development requiring pre-foreclosure and loss mitigation evaluation for FHA-insured mortgage loans. Compliance with these regulations is a condition precedent to foreclosure. Further, failure to comply with these rules gives rise to equitable defenses to this action.
Service requirements for mortgages holding FHA guarantees and insurance require that every reasonable effort has been made to arrive at some other solution before the filing of a foreclosure. You should raise this defense if you have an FHA loan and feel your servicer did NOT make reasonable efforts to work with you before filing the foreclosure.
