Can you appeal or reargue a foreclosure judgment in New York?

This page covers New York law. In a foreclosure, the key rulings include an order granting the lender summary judgment and appointing a referee to compute the amount due, and the judgment of foreclosure and sale, which directs a sale by the sheriff or a referee within 90 days of its date (RPAPL 1351(1)). KOR Law LLP's foreclosure defense practice offers defense at every stage of a foreclosure; this page explains the options after a ruling and their deadlines. For how a case reaches judgment in the first place, see what happens after you are served with a foreclosure summons in New York.

What are the options after a bad ruling, and how long do you have?

The 30-day clocks start when a party serves the judgment or order together with written notice of its entry. When the appellant is the one who served it, the 30 days run from that service (CPLR 5513(a)). A combined motion to reargue and renew must identify and support each part separately, and if leave is granted the court may adhere to its original decision or change it (CPLR 2221(f)).

Which rulings can be appealed?

CPLR 5701(a) allows an appeal to the Appellate Division as of right from any final or interlocutory judgment, and from an order decided on a motion made on notice that, among other things, involves some part of the merits or affects a substantial right. An order granting leave to reargue, or deciding a motion to renew, is appealable as well (CPLR 5701(a)(2)(viii)). In a foreclosure, that can include the order granting the lender summary judgment and appointing a referee.

Two more rules shape the choice. An appeal from the final judgment brings up for review any earlier non-final order that necessarily affects it, if that order has not already been reviewed by the appellate court (CPLR 5501(a)(1)). And no one may appeal from a judgment or order entered on their own default (CPLR 5511). If the judgment of foreclosure and sale was entered because no answer was filed, the path runs through the trial court instead; see whether you can undo a default judgment in New York.

How is an appeal started?

An appeal is taken by serving a notice of appeal on the other side and filing it in the office where the judgment or order was entered. The notice must name the party appealing, the judgment or order (or the specific part of it) being appealed, and the court the appeal goes to (CPLR 5515(1)). In the Second Department, the notice of appeal, a civil informational statement and the order or judgment appealed from are the papers the court's Civil Appeals Management Program reviews when it selects appeals for a settlement conference.

Which court hears the appeal?

Appeals from the Supreme Court go to the Appellate Division, which the court system divides into four judicial departments. The court system's appellate courts page lists New York County (Manhattan) and Bronx County within the First Department, and Kings (Brooklyn), Queens and Richmond (Staten Island) Counties within the Second Department. The Court of Appeals, New York's highest court, usually requires permission before it will hear a case, and in most situations a case must go through an intermediate appellate court first. A motion for permission to appeal must be made within 30 days of service of the order with notice of entry (CPLR 5513(b)). For how a Brooklyn case gets to that point, see what to expect at Kings County Supreme Court in a foreclosure case.

Does an appeal stop the foreclosure sale?

Not on its own. CPLR 5519(a) lists the situations where serving a notice of appeal stays enforcement automatically, and for a private party each one requires something more, such as an undertaking. For an owner in possession of real property that the judgment directs to be conveyed or delivered, the stay requires an undertaking, in an amount the trial court sets, that the owner will not commit waste and will pay for the use and occupancy of the property if the judgment is affirmed. When the judgment directs a sale of mortgaged property and payment of any deficiency, the undertaking must also cover that deficiency (CPLR 5519(a)(6)).

Outside those situations, the trial court or the appellate court may stay enforcement pending the appeal, grant a limited stay, or change a stay already in place (CPLR 5519(c)). If the judgment is affirmed, a stay continues for five days after service of the order of affirmance with notice of its entry (CPLR 5519(e)). That is why a stay is worth raising early in an appeal; how sales are scheduled in each borough is in where and when foreclosure auctions are held in New York City.

A stay can also be sought without an appeal. The court system's guide explains that an owner can ask the court to stop the sale with an order to show cause, and lists examples of good reasons: having the money owed, refinancing with a loan that covers the mortgage, a signed offer from a buyer, or a bankruptcy filing. If the owner pays into court the amount due, with costs and the expenses of the sale, after the judgment but before the sale, the court must stay the proceedings on the judgment (RPAPL 1341(2)).

What if the property is sold and the judgment is later reversed?

This is the reason the stay matters. When an appellate court reverses or modifies a final judgment, it may order restitution of the property or rights lost under it. But where the title of a purchaser who bought in good faith and for value would be affected, the court may instead order the value or the purchase price restored or deposited in court (CPLR 5523). In other words, winning the appeal after an auction to a good-faith buyer may lead to money rather than the return of the property. Weighing the cost of an undertaking against that risk is one of the first decisions in a foreclosure appeal.

What arguments can still be raised?

Reargument cannot introduce facts that were not offered on the original motion (CPLR 2221(d)(2)), and renewal requires a reasonable justification for not offering new facts earlier (CPLR 2221(e)(3)). That makes the record built before judgment important. Two foreclosure rules affect what survives:

• Standing in home loan cases. A home loan borrower does not waive a lack-of-standing defense by leaving it out of the answer, but it cannot be raised after the foreclosure sale unless the judgment of foreclosure and sale was entered on the borrower's default (RPAPL 1302-a). The defense itself is explained in whether a New York foreclosure can be dismissed because the lender lacked standing.
• The amount owed. Objections to the referee's computation of the amount due are raised on the motion to confirm or reject the referee's report; see what a referee's report is and how to challenge the amount owed.

If the judgment was entered because no answer was filed, the first step is to see whether the default can be undone in the trial court; see what happens if you missed the deadline to answer a foreclosure in New York.

What changes the answer for your appeal?

These facts change the options, each under its own rule:

• Whether you appeared. A judgment entered on your default cannot be appealed by you (CPLR 5511); the route is a motion to vacate under CPLR 5015.
• When, and how, notice of entry was served. The 30 days run from service of the judgment or order with written notice of its entry, with added days when that service was by mail or overnight delivery (CPLR 5513(a), (d)).
• Whether the other side appealed first. A cross-appeal may be taken within 10 days after service of their notice of appeal, or within the regular 30 days if that is longer (CPLR 5513(c)).
• Which ruling hurt you. An appeal from the final judgment can bring up an earlier order that necessarily affects it, such as the order granting summary judgment, if that order was not already reviewed (CPLR 5501(a)(1)).
• Whether the sale has happened. After a sale to a good-faith buyer for value, a reversal may produce money instead of the property (CPLR 5523), and a home loan standing defense is cut off unless the judgment was a default (RPAPL 1302-a).
• Whether you can post an undertaking. The automatic stay for an owner in possession requires one, covering use and occupancy and any deficiency (CPLR 5519(a)(6)); otherwise the stay has to come from a court order (CPLR 5519(c)).
• Whether the judgment has been enforced. The Foreclosure Abuse Prevention Act applies to every case in which a final judgment of foreclosure and sale has not been enforced, which can matter on appeal in older cases; see how long a lender has to foreclose in New York.

For example: thirty days after a Brooklyn judgment

Common mistakes after a foreclosure judgment

• Appealing a default. CPLR 5511 bars an appeal from a judgment entered on your own default. Move to vacate in the trial court instead.
• Counting from the wrong day. The 30 days run from service of the judgment with written notice of entry, not from the day the judge signed it (CPLR 5513(a)).
• Assuming the appeal stops the auction. Filing a notice of appeal does not stay the sale without an undertaking or a court order (CPLR 5519).
• Using reargument to add new evidence. Reargument is limited to what the court overlooked; new facts belong in a motion to renew, with a reason they were not offered earlier (CPLR 2221(d), (e)).
• Leaving the amount owed unchallenged until appeal. Objections to the referee's figures belong on the motion to confirm or reject the report, where the record is made.

What to do this week

1. Find the judgment or order and any notice of entry, and write down the date and the way each was served on you.
2. Count 30 days from that service and mark the deadline for reargument and for a notice of appeal.
3. Check the court file and the newspaper notice for a sale date.
4. List the rulings you disagree with: the summary judgment order, the referee's computation, the judgment itself.
5. Gather every paper filed in the case, including your answer, the motion papers and the referee's report.
6. Bring them, with the items on our foreclosure defense consultation checklist, to a lawyer before the 30 days run.

Frequently asked questions

Can I appeal if I never answered the complaint?

Not directly. CPLR 5511 does not allow a party to appeal a judgment entered on its own default. The first step is a motion in the trial court to vacate the default, explained in what happens if you missed the deadline to answer a foreclosure in New York.

Can I appeal the summary judgment order, or only the final judgment?

Both are possible. An order decided on notice that involves part of the merits or affects a substantial right is appealable as of right (CPLR 5701(a)(2)). An appeal from the final judgment also brings up a non-final order that necessarily affects it, if that order was not already reviewed (CPLR 5501(a)(1)).

Can a foreclosure appeal still settle?

Yes. The Second Department runs the Civil Appeals Management Program, which it began in 1974 to settle appeals. Its administrator selects cases for a conference before a Special Referee, and the notice requires attorneys and parties with full authority to settle. A workout with the servicer is also possible; see whether you can still get a loan modification after the case starts.

What happens to money left over if the sale goes ahead?

If the sale brings in more than the judgment amount, the extra is a surplus, and anyone with a claim to it must apply to the court (RPAPL 1354(4), 1361). See who gets the surplus money after a New York foreclosure sale.

Can the case go to the Court of Appeals?

Sometimes. The court system explains that the Court of Appeals usually requires permission before it will hear an appeal, and that a case normally goes through an intermediate appellate court first. A motion for permission must be made within 30 days of service of the order with notice of entry (CPLR 5513(b)).