Cross-Motion Practice: How New York Homeowners Can Assert Counterclaims in Foreclosure Cases

When Facing Foreclosure in New York: How Cross-Motions Can Turn Defense Into Offense

Facing foreclosure can feel overwhelming, but New York homeowners have powerful tools at their disposal beyond simply defending against the lender’s claims. Cross-motion practice allows homeowners to assert counterclaims against the plaintiff in addition to their defensive strategies, transforming a purely defensive position into an offensive one that can provide significant leverage in foreclosure proceedings.

Understanding Cross-Motion Practice in Foreclosure Defense

Motion practice is the bread and butter of most foreclosure lawyers. The nature of the suit and position of the parties often determines the timing and types of motions that an attorney needs to file during the litigation process. In New York foreclosure cases, cross-motions represent a strategic opportunity for homeowners to not only defend their property but also pursue claims against lenders who may have violated state and federal regulations.

When a plaintiff moves to obtain an Order of Reference, the defendant’s foreclosure attorney would usually oppose and cross move to extend the time for the defendant to answer. However, cross-motions can serve broader purposes than simply buying time. Defendants can cross-move for leave to amend their answer to assert additional counterclaims, creating new avenues for resolution and potentially recovering damages from lenders.

Strategic Counterclaims in Foreclosure Cases

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.

Effective counterclaims in New York foreclosure cases often target specific lender violations:

  • Modification Process Failures: Counter-Claims can address misrepresentation and/or breach of contract as to false representations of modification, taking of payments under temporary modification under false pretenses
  • Standing Issues: Problems with Standing include failure to produce the note, probable lack of original documents based on blurry copies of loan documents attached to complaint, defective notice and recording of assignments
  • Procedural Violations: Problems in Litigation include failure to assert a cause of action, defective service of process, failure to include necessary defendants, commencement of foreclosure during modification negotiations

Timing and Strategic Considerations

Timing is important in foreclosure defense since by law the homeowner is given only a short time, 20 to 30 days, depending on the method of service, to respond to a Summons & Complaint with an Answer and/or a Motion to Dismiss. However, cross-motions can be filed at various stages of litigation, providing ongoing opportunities for strategic advantage.

These two motions by the Plaintiff, the Motion for Summary Judgment (“MSJ”) and the Motion for a Judgment of Foreclosure and Sale (“MJFS”) can both be vigorously opposed by the defendant with opposition to the plaintiff’s motions and cross motions by the defendant. Understanding when and how to deploy cross-motions requires expertise in New York’s complex foreclosure procedures.

The Power of Comprehensive Foreclosure Defense

Understanding the full scope of foreclosure motions is crucial for homeowners. A Foreclosure Motion represents just one aspect of the complex legal proceedings that homeowners must navigate. Because mortgage lending and foreclosures are heavily regulated and subject to many laws and new requirements, a proper Answer is extensive with many detailed and fact specific affirmative defenses and counter claims that are customized to each client’s specific case.

Experienced law firms have more than 45 years of experience submitting answers with numerous affirmative defenses and counterclaims to the summons and complaints filed by banks. It is imperative once you are served with a summons and complaint in a foreclosure proceeding that you submit a written answer with all of your affirmative defenses and counterclaims to the court and opposing counsel.

Expert Legal Representation Makes the Difference

The Law Offices of Ronald D. Weiss, PC have been supplying expert bankruptcy, foreclosure defense, and debt negotiation services since 1993. They offer practical, compassionate solutions customized to each client’s financial situation. With over 30 legal professionals on their team, they have the resources to handle important legal matters.

Located to serve homeowners throughout Long Island and New York, the firm serves Suffolk County towns including Huntington, Islip, Smithtown, Brookhaven, Babylon, East Hampton, Southampton, Southold, Riverhead, and Shelter Island, as well as Nassau County towns including Oyster Bay, Glen Cove, Hempstead, North Hempstead, and Long Beach. In the greater New York area they serve Queens, Brooklyn, Staten Island, Manhattan, Bronx, and Westchester.

Building Leverage Through Strategic Defense

The homeowner should be asserting affirmative defenses and counterclaims against the financial institution in his or her Answer. The homeowner can use the foreclosure lawsuit to obtain leverage against the bank and put pressure on them to grant a mortgage modification.

Defendants can cause a foreclosure action to continue for at least several years where they vigorously defend the litigation, while seeking to resolve the foreclosure by obtaining a modification, short pay, short sale and/or other agreement settling the foreclosure. This extended timeline provides crucial opportunities for homeowners to explore alternatives to losing their homes.

Cross-motion practice in New York foreclosure cases represents a sophisticated legal strategy that requires deep understanding of both state and federal regulations governing mortgage lending and foreclosure procedures. Lending institutions and foreclosure legal action by them are extremely heavily regulated by State, Federal and local laws and regulations. Foreclosure defense attorneys utilize these regulations of financial institutions in developing defenses for homeowners. When executed properly, cross-motions can transform a foreclosure defense from a delaying tactic into a powerful tool for achieving favorable resolutions and protecting homeowners’ rights.