This page explains New York law. The time to answer a foreclosure summons is 20 or 30 days depending on how it was served (CPLR 320(a)), explained in how long you have to answer a foreclosure complaint in New York. Missing it has real consequences. The court system's CourtHelp guide warns that without an answer the judge can order a foreclosure judgment, and that if you never filed an answer or a notice of appearance, the plaintiff does not have to tell you about the auction. KOR Law LLP's foreclosure defense practice offers defense at every stage of a foreclosure, including after a missed deadline.
What can be done at each stage of the case?
The right move depends on how far the case has gone. Find the row that matches the court file, not the row you hope applies.
| Where the case is | Main option | Rule |
|---|---|---|
| Home loan case, you live in the home, settlement conference not yet held or just held | Appear at the conference; you are presumed to have a reasonable excuse and may serve and file an answer within 30 days of your first appearance, with no substantive defenses waived, and the default is deemed vacated | CPLR 3408(m) |
| Default, but no judgment yet | Ask the court to extend the time to answer or to compel the plaintiff to accept a late answer, showing a reasonable excuse | CPLR 3012(d) |
| Plaintiff waited more than a year after the default to seek judgment | The court must dismiss the complaint as abandoned unless the plaintiff shows sufficient cause | CPLR 3215(c) |
| Default judgment or judgment of foreclosure and sale already entered | Move to vacate: excusable default within one year after service with notice of entry, or lack of jurisdiction such as improper service | CPLR 5015(a) |
| Served other than by personal delivery, and the papers never reached you in time | Ask to defend within one year after learning of the judgment, and no more than five years after its entry, with a meritorious defense | CPLR 317 |
| Sale scheduled | An order to show cause asking the court to stay the sale; paying what is owed before the sale also stops it | CourtHelp, Foreclosure Judgments |
| Home already sold at auction | Lack of standing can be raised only if the judgment of foreclosure and sale was entered on your default | RPAPL 1302-a |
How does the settlement conference help someone who did not answer?
In a home loan case where the defendant lives in the property, the conference is mandatory (CPLR 3408(a)). At the first conference, if the homeowner has not answered or moved to dismiss, the court must explain the requirement to answer and what an answer involves, warn that defenses may be lost without one, give information about foreclosure prevention resources, and provide the Consumer Bill of Rights (CPLR 3408(l)). A homeowner who appears but missed the deadline is presumed to have a reasonable excuse and may serve and file an answer within 30 days of that initial appearance; once it is served and filed, the default is deemed vacated (CPLR 3408(m)). CourtHelp adds that no motion is needed to file that late answer. That 30-day window is easy to lose, so treat the first conference date as a deadline. The conference itself is covered in what happens at a New York foreclosure settlement conference.
Local rules add steps. In Brooklyn, an appearing homeowner files a notice of appearance on the court's form with a mailing address, phone numbers and email, and a case is marked off the conference calendar if the defendant misses two scheduled conferences (Kings County Foreclosure Settlement Part rules 3 and 10). The courthouse side is described in what to expect at Kings County Supreme Court in a foreclosure case.
What does the plaintiff have to do before a default judgment?
A default does not hand the lender a judgment automatically. The plaintiff must file proof of service, proof of the claim, the default and the amount due (CPLR 3215(f)). Against a person who never appeared, in a case on a contractual debt, it must also mail an additional copy of the summons to the residence in a "personal and confidential" envelope at least 20 days before judgment, and that rule expressly covers residential mortgage foreclosures (CPLR 3215(g)(3)). If more than a year has passed since the default, a defendant who has not appeared is entitled to at least five days' notice of the application unless the court orders otherwise (CPLR 3215(g)(1)). And if the plaintiff takes no steps toward judgment within a year after the default, the court must dismiss the complaint as abandoned, on its own or on motion, unless sufficient cause is shown; a defendant's motion on that ground is not an appearance (CPLR 3215(c)).
A defendant who has not appeared can still ask to be told about the next step. Where the application for judgment goes to the court, CPLR 3215(g)(2) lets that defendant serve a written demand for notice of any reference, and the demand does not count as an appearance. In a foreclosure, the next step after a default is usually an order of reference: CourtHelp explains that a referee then adds up principal, interest, late charges, fees and costs before the plaintiff asks for a judgment of foreclosure and sale. That computation is covered in how a referee's report works and how to challenge the amount owed.
Which defenses survive a missed deadline?
Defenses can be lost without an answer, which is exactly what the court must warn about at the first conference (CPLR 3408(l)), but one rule protects homeowners. In a foreclosure on a home loan, an objection or defense based on the plaintiff's lack of standing is not waived because it was left out of an answer or a pre-answer motion. It cannot be raised after the foreclosure sale, however, unless the judgment of foreclosure and sale was issued on the defendant's default (RPAPL 1302-a). The defense itself is covered in whether a New York foreclosure can be dismissed because the lender lacked standing.
Other defenses come back into the case through a late answer or a request to vacate. CourtHelp explains that defenses are told to the court either in the answer or when asking the court to vacate a default judgment, which is why a motion to file late should attach the proposed answer. One defense that often depends on paperwork the owner already has is a missing or defective 90-day notice; see New York's 90-day foreclosure notice and what happens if the lender got it wrong.
If a judgment has already been entered, the grounds and proof for undoing it, including bad service of the summons, are explained in whether you can undo a default judgment in New York.
Can the sale still be stopped?
CourtHelp explains that the homeowner can stop the sale up until the home is sold by paying the money owed, and can ask the court to stay the sale by order to show cause for a good reason, giving as examples having the money owed, being in the middle of a refinance that will cover the mortgage, having a buyer with an offer, or having filed for bankruptcy. Once the sale is complete, the home is lost. A homeowner who defaulted can combine that request with a motion to vacate the default and file an answer, if there are defenses to raise. The notice of sale must be published in a newspaper for several weeks before the auction (RPAPL 231), so check the public notices and the court's calendar; our page on where and when foreclosure auctions are held in New York City covers the auction days and rooms in Brooklyn, Queens, Manhattan and the Bronx.
If the auction does go ahead and the price is more than the debt, the extra money is a surplus that a former owner can apply to the court to receive; see who gets the surplus money after a New York foreclosure sale.
What changes the answer for your case?
- Whether it is a home loan and you live in the home. The conference route, with its presumed reasonable excuse, applies only to a home loan where the defendant lives in the property (CPLR 3408(a), (m)).
- How you were served. If the papers were left with someone else or fixed to the door and never reached you in time, CPLR 317 can allow a defense after judgment, within one year after you learn of it and no more than five years after entry, with a meritorious defense.
- Whether you were served with the judgment. The one-year limit for an excusable default runs from service of a copy of the judgment with written notice of its entry (CPLR 5015(a)(1)). A motion based on lack of jurisdiction is a separate ground (CPLR 5015(a)(4)).
- How long the plaintiff waited. No steps toward judgment within a year after the default means dismissal as abandoned unless the plaintiff shows sufficient cause (CPLR 3215(c)).
- Whether you appeared at all. A defendant who has appeared is entitled to at least five days' notice of a default application (CPLR 3215(g)(1)), and CourtHelp describes a notice of appearance as the way to get notices of what is happening without defending.
For example: using the conference to get back in
For example, imagine a homeowner in Brooklyn who is handed the summons and complaint at her door on April 6 and puts the papers in a drawer. (This is a made-up illustration, not a real client or result.) Because she was served personally, her answer was due 20 days later, on April 26, and that date passes. The plaintiff files proof of service, and the court sends a notice of the mandatory conference.
She appears at the first conference on June 10. The court explains that she must answer and that defenses can be lost without one, and gives her the Consumer Bill of Rights. She files the court's notice of appearance form with her phone and email. Under CPLR 3408(m) she is presumed to have a reasonable excuse, and she has until July 10, 30 days from that first appearance, to serve and file an answer. She serves an answer raising standing and a defective 90-day notice, files it by July 10, and her default is deemed vacated. Had she stayed home from two scheduled conferences instead, the case would have been marked off the conference calendar, and the 30-day window would never have opened.
Common mistakes after missing the deadline
- Waiting to hear from the lender. If you never filed an answer or a notice of appearance, the plaintiff does not have to tell you about the auction, according to CourtHelp. Some courts add their own rule: Kings County's auction rules require a copy of the notice of sale to go to the owner, but you should not count on a letter to protect you.
- Skipping the first conference. It is the one step that brings the 30-day answer window and the presumed excuse (CPLR 3408(m)). In Brooklyn, two missed conferences take the case off the conference calendar.
- Mailing a late answer and hoping it sticks. CourtHelp advises asking the plaintiff to agree first and, if it refuses, making a motion or order to show cause with the proposed answer attached and a request to pause the case until the judge decides.
- Asking to vacate without a defense. For an excusable default, CourtHelp explains that you must show both a good reason for missing the deadline and a good reason the plaintiff should not win.
- Letting the one-year clock run. Once you are served with the judgment and notice of entry, the excusable default route closes a year later (CPLR 5015(a)(1)).
- Waiting until after the auction. The standing defense narrows after the sale (RPAPL 1302-a), and CourtHelp warns that once the sale is complete, the home is lost.
What to do this week
- Get the court file, including the affidavit of service, which CourtHelp recommends for anyone weighing a motion to vacate.
- Check the docket for a conference date, an order of reference, a judgment or a sale date, and match it to a row in the table above.
- Compare the claimed date and method of service with what actually happened, because the 20-day or 30-day clock depends on both (CPLR 320(a)).
- If a conference is scheduled, attend it, and mark the date 30 days after your first appearance as your answer deadline.
- If there is no conference, ask the plaintiff's lawyer in writing to accept a late answer, and prepare the motion in case the answer is no.
- Bring everything to a first meeting; the list in what to bring to a foreclosure defense consultation covers the papers that matter.
Frequently asked questions
Is filing a notice of appearance enough?
It keeps you in the loop but does not state defenses. A notice of appearance is one way to appear (CPLR 320(a)), and it entitles you to at least five days' notice of an application for a default judgment (CPLR 3215(g)(1)). Under CPLR 320(b), appearing also counts as personal service unless you object to jurisdiction by motion or in the answer, so a service objection should not be left out.
What is a traverse hearing?
It is the hearing where the court decides whether the papers were served properly. CourtHelp explains that an owner who asks to vacate a judgment for bad service must prove it at a traverse hearing, using the affidavit of service. If the owner wins, the court may dismiss the case without prejudice, which means the plaintiff can sue again.
Is there a deadline to ask the court to vacate a default?
It depends on the ground. An excusable default motion must be made within one year after service of the judgment with written notice of its entry (CPLR 5015(a)(1)). CourtHelp says there is no time limit for asking to vacate for bad service, and CPLR 317 has its own one-year and five-year limits.
Can I still get a loan modification after a default?
You can keep trying. CourtHelp says you can contact the plaintiff about a modification up until the home is sold, especially if your situation has improved. Our page on whether you can still get a loan modification after the case starts covers the timing rules.
Should I appeal instead of asking the trial court?
The rule for undoing a default sends the request to the court that rendered the judgment (CPLR 5015(a)). Appeals and reargument have their own short deadlines and limits, covered in whether you can appeal or reargue a foreclosure judgment in New York.
Can the lender and I simply agree to undo the default?
Yes. Under CPLR 5015(b), the clerk may vacate a default judgment entered under CPLR 3215 when the parties, personally or through their attorneys, file a stipulation consenting to it. Before judgment, CourtHelp suggests asking the plaintiff to agree to a late answer.