The danger of delaying opposition to foreclosure

The danger of waiting.

The longer a borrower waits to defend against a foreclosure suit, the harder it becomes to do so. These are the key events in foreclosure:

Summons and complaint.

A borrower who is served with a summons and complaint in a foreclosure suit has twenty days to answer the complaint. The deadline can usually be extended if the borrower requests an extension from the mortgage-holder before the twenty days have elapsed.

Motion for summary judgment and order of reference.

If the borrower misses the twenty-day deadline, the court will often let her answer late. But the court may be less lenient if the the next step in the foreclosure process is reached, which is the mortgage-holder’s moving for summary judgment and an order of reference. If the borrower does not oppose that step in the process―which occurs about six months after the case was originally filed―then judgment is granted to the mortgage-holder, and the case is given to a referee to calculate how much the borrower owes. At that point, it is difficult to convince a court to roll back the entire process and let the borrower mount a defense.

Motion for judgment of foreclosure and sale.

The next step, which occurs a year or more after suit was filed, is that the mortgage-holder moves for judgment of foreclosure and sale. If that motion is granted to the mortgage-holder, the court will be most reluctant to let a borrower who has finally hired an attorney make the case go back to square one, so that she can finally defend herself in the suit.


Some borrowers actually wait till the foreclosure auction of their property has been scheduled before asking the court for permission to file a late answer. And some consult an attorney only after the property has been sold, when they try to undo the sale. Those legal actions are almost always taken too late. It is at those late stages in the foreclosure process that filing chapter 13 bankruptcy can be the only way to stop the foreclosure.

For these reasons, borrowers are urged to consult an attorney at the beginning of the foreclosure process. There is often much that a borrower can do to save her property at that point, even if she has fallen behind in her payments. But a last-ditch effort, after a borrower has either done nothing to defend herself , is usually a noble failure.

The danger of mounting a pro se defense.

Some borrowers in foreclosure try to act as their own lawyers. It is not just the desire to avoid the cost of an attorney that makes them do so, but also the difficulty of finding a lawyer who has expertise in foreclosure law. So borrowers read up on the law, draft their own papers, and argue their own cases.

But they are ill-served. Judges dislike reading amateur legal papers and hearing pro se arguments. More important, a successful foreclosure defense can involve some eight New York statutes and claims and some twelve federal laws. Foreclosure defense is thus a complex area of the law, and so a non-lawyer who undertakes it is bound to miss valid arguments that could be asserted on her behalf.

Request a free consultation:

Attorney Stephen A. Katz is available to defend mortgage borrowers in foreclosure. His fees are reasonable. He provides a free initial consultation.

Attoryney Katz can be contacted at 1-800-251-3529.