How long do you have to answer a foreclosure complaint in New York, and what has to go in the answer?

This page explains New York law. Foreclosure cases here are filed in the New York State Supreme Court, and the answer is the first document most owners file. In a foreclosure it does more work than people expect: it fixes which defenses stay in the case. For the full sequence from summons to auction, see what happens after you are served with a foreclosure summons in New York. For how KOR Law LLP handles these matters, see our foreclosure defense practice.

How is the deadline counted?

The clock depends on how the papers reached you. CPLR 320(a) gives 20 days after service when the summons is delivered to you personally. When service is made another way, such as delivery to a person of suitable age at your home plus a mailing, or by fixing the papers to the door plus a mailing, you have 30 days after service is complete (CPLR 320(a) and 3012(c)). For those two methods, service is complete ten days after the proof of service is filed with the clerk (CPLR 308(2) and (4)). The court system's CourtHelp guide adds that the count includes weekends and holidays.

Two details in CPLR 308 are worth checking against what really happened. Fixing the papers to the door is allowed only where delivery to you, or to a person of suitable age, cannot be made with due diligence (CPLR 308(4)). And for delivery to another person, the proof of service must identify that person and state the date, time and place of service (CPLR 308(2)). A wrong date or a wrong door changes the count, and it can also be a defense.

The last row applies only in home loan cases that have a mandatory settlement conference (CPLR 3408(m)). That second chance, and the other routes open after a missed deadline, are covered in what you can do after missing the deadline to answer a foreclosure.

Answer, notice of appearance or motion: which response fits?

CPLR 320(a) lists three ways to appear in a case: serving an answer, serving a notice of appearance, or making a motion that extends the time to answer. They do different jobs.

• An answer responds to the complaint and states your defenses. It is the document that carries your defenses through the rest of the case.
• A notice of appearance tells the court and the plaintiff that you are part of the case. CourtHelp suggests it for owners who do not want to defend but want notices of what is happening, and a defendant who has appeared is entitled to at least five days' notice of an application for a default judgment (CPLR 3215(g)(1)).
• A pre-answer motion to dismiss asks the court to end the case on a ground listed in CPLR 3211(a), such as documentary evidence, payment, release or the statute of limitations. Only one such motion is allowed (CPLR 3211(e)), so it has to be complete.

One trap applies to all three. Under CPLR 320(b), appearing in the case counts as personal service on you unless you object to the court's jurisdiction over you, by motion or in the answer, as CPLR 3211 provides. An owner who believes the papers were never properly served should raise that objection in the first document filed.

What goes in the answer?

The answer responds to the complaint paragraph by paragraph and then lists your defenses. The CourtHelp guide tells unrepresented owners that if they are not sure everything in the complaint is true, the answer should begin with a general denial, followed by every defense and explanation they have, and it warns that a defense left out of the answer may not be allowed later. An answer can also include counterclaims against the plaintiff. Two practical points from the same guide: if the complaint ends with a verification, the answer should be verified too (signed before a notary), and the answer must be served on the plaintiff's lawyer by someone 18 or older who is not a party, with an affidavit of service filed with the court.

The answer is filed in the court where the case was started, which is the Supreme Court in the county where the property is located (CPLR 507). For a Brooklyn home, the local parts, clerk's office and filing rules are described in what to expect at Kings County Supreme Court in a foreclosure case.

Which defenses are lost if you leave them out?

CPLR 3211(e) is the rule that catches people. Several defenses must be raised either in a pre-answer motion to dismiss or in the answer itself, or they are waived.

The 60-day service rule in CPLR 3211(e) has a carve-out for certain consumer debt collection cases, so the timing of any service challenge should be checked as soon as the answer goes out. The statute of limitations is one defense lost this way: it is a CPLR 3211(a)(5) ground, so an owner who thinks the lender waited too long must say so at the start. The time limits themselves are explained in how long a lender has to foreclose in New York.

The standing protection in RPAPL 1302-a applies only to a "home loan" as RPAPL 1304(6) defines it: a loan to a natural person, for personal, family or household purposes, secured by a one to four family home or a condominium unit that the borrower occupies or will occupy as a principal dwelling. Commercial borrowers and entity owners should assume the ordinary waiver rules apply to them, and we compare the two tracks in commercial or residential foreclosure in New York. Standing itself is explained in whether a New York foreclosure can be dismissed because the lender lacked standing.

What defenses do owners commonly raise?

The court system publishes a list of common defenses in foreclosure cases. It includes lack of standing, improper service, full or partial payment, failure to serve the "Help for Homeowners in Foreclosure" notice with the summons, a missing or defective 90-day pre-foreclosure notice, active military service of an owner, a homeowner's mental incapacity when the loan was signed, and an unfair or illegal loan process. Which of these fit depends on the documents and the history of the loan, and some, like the 90-day notice, turn on mailing details that are easy to overlook. We cover that notice in New York's 90-day foreclosure notice and what happens if the lender got it wrong.

What changes the answer for your case?

Beyond the method of service, a few facts change the deadline or the defenses that survive. Each is tied to a specific rule:

• Whether it is a home loan on a home you live in. The mandatory conference and its 30-day second chance to answer apply only to a home loan where the defendant lives in the property (CPLR 3408(a), (m)), and the standing protection applies only to home loans (RPAPL 1302-a).
• Whether the complaint came with the summons. If only a summons arrived, a written demand for the complaint extends the time to appear until 20 days after the complaint is served (CPLR 3012(b)).
• Whether you move before answering. A pre-answer motion moves the answer deadline to ten days after notice of entry of the decision (CPLR 3211(f)), but only one is allowed (CPLR 3211(e)).
• Whether the certificate of merit and loan papers came with the complaint. In a home loan case where the defendant lives in the property, the complaint must include the plaintiff's attorney's certificate and copies of the note, mortgage and assignments. If the plaintiff willfully fails to provide them, the court may dismiss the complaint without prejudice or deny interest and other charges on the debt (CPLR 3012-b(a), (e)).
• Whether the case is a refiling. If an earlier foreclosure on the same loan ended after you served an answer, a defense you timely asserted in that case is treated as timely in the new one (CPLR 205-a(b)).

For example: counting the deadline and building the answer

Common mistakes when answering a foreclosure

• Sending a payment instead of an answer. The notice RPAPL 1320 requires on the summons for a home of up to three units says it plainly: sending a payment to the mortgage company will not stop the foreclosure action.
• Filing without serving, or serving without filing. The same notice tells the owner to serve the answer on the plaintiff's attorney and to file it with the court. Doing only one leaves the job half done.
• Appearing without objecting to service. A notice of appearance or an answer that says nothing about bad service can give up the objection (CPLR 320(b), 3211(e)).
• Leaving out the "technical" defenses. Statute of limitations, payment, release and documentary evidence defenses are waived if they are not in the answer or the one pre-answer motion (CPLR 3211(e)).
• Treating a modification application as an answer. Talks with the servicer run on a separate track from the court deadline; see whether you can still get a loan modification after the case starts.
• Skipping the verification. If the complaint is verified, CourtHelp advises a verified answer, signed before a notary.

What to do this week

1. Write down the date, the method and the person involved when the papers arrived, and keep every envelope.
2. Get the affidavit of service from the court file and compare it with what really happened.
3. Count the deadline using the table above, including weekends and holidays, and mark it on a calendar.
4. Check the complaint for the certificate of merit, the note, the mortgage and any assignments, and the statement that the plaintiff made the state filing RPAPL 1306 requires.
5. List every possible defense, including service, payment, the 90-day notice and the age of the default, before anything is filed.
6. Gather the papers on our foreclosure defense consultation checklist and speak with a lawyer well before the deadline.

Frequently asked questions

Does going to the settlement conference count as an answer?

No. The CourtHelp guide is explicit that you still need to answer even if you attend the conference, and that a default judgment can be entered even after you attend if no answer is filed. Our page on what happens at a New York foreclosure settlement conference explains the conference side.

What if the deadline has already passed?

A missed deadline is serious but not always final. Under CPLR 3012(d), the court may extend the time to answer, or compel the plaintiff to accept a late answer, on a showing of a reasonable excuse for the delay. If a default judgment has already been entered, the question becomes whether it can be vacated; see whether you can undo a default judgment in New York.

Can I file the answer online?

Sometimes. CourtHelp explains that if an e-filing notice came with the court papers, you can serve and file the answer through NYSCEF, the state courts' electronic filing system. If not, you file it in the same court where the case was started.

Is there a free form for a foreclosure answer?

Yes. The court system offers a Foreclosure Answer DIY Form program that walks you step by step through the paperwork, explains defenses and produces the forms with instructions. CourtHelp also posts a sample answer form for anyone filling it out by hand.

Can the answer include claims against the lender?

Yes. CourtHelp notes that you may make a counterclaim in the answer. A counterclaim is your own claim against the plaintiff, stated with the facts behind it.

What happens after the answer is filed?

For a home where you live with no more than four units, CourtHelp says the settlement conference is held within 60 days after the plaintiff files proof of service and a request for judicial intervention. If the case does not settle and you filed an answer, it moves through discovery, evidence and, if needed, trial. The plaintiff may also ask for summary judgment if it believes you have no good defense.