This page explains New York law. Foreclosure in New York is a court case: the lender (the court papers call it the plaintiff) files in the New York State Supreme Court, in the county where the property is located (CPLR 507), and the home is not auctioned until a judge signs a judgment of foreclosure and sale. Below are the steps in order, with the deadline attached to each. For how KOR Law LLP approaches these cases, see our foreclosure defense and real estate litigation page.
What should have happened before the case was filed?
For a home loan, the lender or servicer must mail a pre-foreclosure notice at least 90 days before suing, by registered or certified mail and also by first-class mail, to the borrower's last known address and to the home itself (RPAPL 1304). Within three business days of mailing it, the lender must file information about the notice with the Superintendent of Financial Services (RPAPL 1306). The statute makes the notice a condition precedent to starting the case, and the CourtHelp guide lists a missing or defective 90-day notice as a reason a court can dismiss it. We explain the notice in detail in New York's 90-day foreclosure notice and what happens if the lender got it wrong.
What arrives with the summons?
The case starts when you are served with a summons and complaint. The New York courts' CourtHelp guide notes that the plaintiff also files a lis pendens, a notice warning anyone checking the property records that a case about the property is pending. Depending on the property and the loan, the papers must include several things the law requires:
- A warning on the summons. For a residential property with no more than three units, the summons must carry a boldface notice headed "YOU ARE IN DANGER OF LOSING YOUR HOME" (RPAPL 1320).
- The "Help for Homeowners in Foreclosure" notice. For an owner-occupied one to four family home, this notice must come with the summons, on its own page, on colored paper that is a different color from the summons and complaint (RPAPL 1303).
- A certificate of merit. For a home loan where the defendant lives in the property, the plaintiff's attorney must certify that there is a reasonable basis for the case and that the plaintiff is currently the creditor entitled to enforce the loan, and the note, mortgage and any assignments must be attached (CPLR 3012-b).
- A statement about the state filing. The complaint must allege that the plaintiff made the filing with the Superintendent of Financial Services that RPAPL 1306 requires.
Tenants get their own notice. RPAPL 1303(4) requires the foreclosing party to deliver a tenant notice within ten days of serving the summons and complaint: by certified and first-class mail in a building with fewer than five units, or by posting it at each entrance and exit of a building with five or more.
When is the answer due?
CPLR 320 and CPLR 3012 set the clock. If the summons and complaint were handed to you personally, your answer is due within 20 days. If they were served another way, for example by leaving them with a person of suitable age at your home and mailing a copy, you have 30 days after service is complete, and for that method service is complete ten days after the proof of service is filed (CPLR 308(2)). The court system's guide adds that the period includes weekends and holidays. Missing it can lead to a default, so read how long you have to answer a New York foreclosure complaint and what has to go in the answer before the deadline passes.
What happens at the settlement conference?
For a home loan where the defendant lives in the property, the plaintiff must file proof of service within 20 days of serving you, and the court must hold a mandatory conference within 60 days after that filing (CPLR 3408(a)). When the request for judicial intervention is filed, the court sends your name and contact details to a housing counseling agency on the state's list for your area (CPLR 3408(d)). Both sides must appear in person or by counsel, with a representative who has full authority to settle, and the court may allow a party to attend by telephone or video (CPLR 3408(c)).
The goal is a resolution such as a loan modification, short sale or deed in lieu of foreclosure, and both sides must negotiate in good faith (CPLR 3408(f)). If you missed the answer deadline but appear at the conference, the law presumes a reasonable excuse and gives you 30 days from that first appearance to serve an answer (CPLR 3408(m)). Our page on what happens at a New York foreclosure settlement conference covers what to bring and what the lender must do. If an application is already pending with the servicer, also read whether you can still get a loan modification after the case starts.
What if the case does not settle?
If you answered and there is no settlement, the case proceeds like other civil cases, with discovery and, often, a motion for summary judgment by the plaintiff. Defenses are decided at this stage, including the defense that the plaintiff did not hold the note when it sued; we explain that one in whether a New York foreclosure can be dismissed because the lender lacked standing. If the plaintiff wins, or if no answer was filed, the court signs an order of reference.
Under RPAPL 1321 the court determines the amount due or directs a referee to compute it, including principal, interest and charges. That computation is worth reading line by line, because it becomes the figure in the judgment; see how a referee's report works and how to challenge the amount owed. The plaintiff then moves for a judgment of foreclosure and sale, which directs that the property be sold by the sheriff or a referee within 90 days of the judgment date (RPAPL 1351(1)).
How is the auction scheduled?
The sale is a public auction to the highest bidder. Notice must be published once a week for four successive weeks, or at least twice a week for three successive weeks, and the sale date must fall within the window RPAPL 231 sets after the first publication. In New York City, each county's Supreme Court runs its own auction calendar on its own day; we list them in where and when foreclosure auctions are held in New York City. If the sale brings in more than is owed, the extra money is paid into court within five days, and anyone with a claim to it must apply to the court (RPAPL 1354(4), 1361). Former owners often overlook that money, so see who gets the surplus money after a New York foreclosure sale.
The process at a glance
| Stage | Rule | Timing the law sets | What the owner can do |
|---|---|---|---|
| 90-day notice | RPAPL 1304, 1306 | Mailed at least 90 days before suit; state filing within 3 business days of mailing | Keep the notice and both envelopes; contact a counseling agency on the list |
| Summons and complaint | CPLR 320, 3012; RPAPL 1303, 1320; CPLR 3012-b | Answer within 20 days (personal delivery) or 30 days after service is complete | Serve an answer or a motion to dismiss on time |
| Tenant notice | RPAPL 1303(4) | Within 10 days of service of the summons and complaint | Make sure any tenants know their rights |
| Proof of service | CPLR 3408(a) | Plaintiff files it within 20 days of service | Check the date and manner of service it describes |
| Settlement conference | CPLR 3408 | Within 60 days after proof of service is filed | Attend, bring financial papers, negotiate a workout |
| Litigation | CPLR 3408(n) | Motions wait while the conference process is ongoing | Exchange discovery and press defenses |
| Order of reference | RPAPL 1321 | After a default, an admission, or a ruling for the plaintiff | Check the referee's computation of the amount due |
| Judgment of foreclosure and sale | RPAPL 1351 | Directs a sale within 90 days of the judgment date | Consider reargument, appeal, a stay, or a payoff |
| Notice of sale and auction | RPAPL 231 | Published weekly for 4 weeks or twice weekly for 3 weeks before the sale | Ask the court to stop the sale, or pay what is owed before it |
| Surplus | RPAPL 1354, 1361 | Surplus paid into court within 5 days of the sale | File a claim to the surplus |
What changes the answer for your case?
The path above is the standard residential track. Several facts move a case off it, and each one is tied to a specific rule:
- Whether it is a home loan on a home you live in. The 90-day notice (RPAPL 1304), the certificate of merit (CPLR 3012-b) and the mandatory conference (CPLR 3408) are tied to home loans, and the conference also to a defendant who lives in the property. A loan to a business, or a property held through an entity, is handled differently; we compare the two tracks in commercial or residential foreclosure in New York: which protections apply to you.
- How you were served. Personal delivery starts a 20-day clock; other methods start a 30-day clock that runs from completed service, which for "leave and mail" service is ten days after proof of service is filed (CPLR 308(2), 320).
- Bankruptcy or moving out. The 90-day waiting period does not apply, or stops applying, if the borrower has filed for bankruptcy or no longer lives in the home as a principal dwelling, although the lender must still send the notice (RPAPL 1304(3)).
- The age of the default. An action on a note and mortgage must be started within six years (CPLR 213(4)), and the Foreclosure Abuse Prevention Act limits a lender's ability to restart that clock; see how long a lender has to foreclose in New York.
- A default the lender never acted on. If the plaintiff does not take steps to enter a default judgment within one year after the default, the court must dismiss the complaint as abandoned unless the plaintiff shows sufficient cause (CPLR 3215(c)).
- Paying what is due. If the owner pays into court the amount due, with costs, before the judgment directing sale, the court must dismiss the complaint; after the judgment but before the sale, the court must stay the proceedings (RPAPL 1341).
For example: the first months of a Brooklyn case
For example, imagine a homeowner in a two-family house in Brooklyn who lives on one floor and rents the other. (This is a made-up illustration, not a real client or result.) A process server leaves the summons and complaint with her adult son on a Tuesday and mails a second copy. The plaintiff files proof of service eleven days later. Because the papers were not handed to her, her 30 days run from the date service was complete, which is ten days after that filing, so she has roughly seven weeks from the visit, not 20 days.
Inside the papers she finds the colored "Help for Homeowners in Foreclosure" notice and the certificate of merit, with copies of the note and two assignments. Her tenant receives the separate tenant notice by mail. The Supreme Court in Kings County sends her a notice of the conference, which must be held within 60 days after proof of service is filed. She serves an answer that raises the 90-day notice and standing issues, brings her tax returns and bank statements to the conference, and asks the servicer for the status of her pending modification application. If talks fail, her defenses go forward in the ordinary course. The courthouse steps for this borough are on our page about what to expect at Kings County Supreme Court in a foreclosure case.
Common mistakes after being served
- Counting from the wrong day. The deadline runs from service, not from when you opened the envelope, and weekends count.
- Treating a modification application as an answer. Talks with the servicer do not stop the court's deadlines. Serve the answer as well.
- Throwing away envelopes. The 90-day notice must go by two kinds of mail. The envelopes and their postmarks are often the best evidence of what was, or was not, sent.
- Skipping the conference. Appearing preserves the chance to settle and, under CPLR 3408(m), can reopen a missed answer deadline. Staying away does neither.
- Moving out too early. You do not have to leave when you are served; only a judge can order you to move. The mandatory conference is also tied to a defendant who lives in the property (CPLR 3408(a)).
- Ignoring the referee's numbers. Interest, advances and fees in the computation become the judgment amount if no one objects.
What to do this week
- Write down the date and the way the papers reached you, and who received them.
- Count your answer deadline from CPLR 320 and mark it, including weekends. If it may already have passed, read what happens if you missed the deadline to answer a foreclosure in New York.
- Gather the 90-day notice, its envelopes, every servicer letter from the past year, the note, the mortgage and your payment records.
- Check the complaint for the RPAPL 1306 statement and the certificate of merit with its attachments.
- Keep paying property taxes and insurance; you remain responsible for the property while the case runs.
- Pull together the papers on our foreclosure defense consultation checklist and arrange to speak with a lawyer before the deadline.
Frequently asked questions
How long does a New York foreclosure take?
The court system's own guide says the process "takes about a year from when the plaintiff starts a case to the sale of the home." Settlements, motions and appeals can change that pace in either direction.
Do I have to move out when I am served?
No. The notice RPAPL 1303 requires tells owners they may stay in the home unless and until the property is sold at auction under a judgment of foreclosure and sale, and the CourtHelp guide notes that only a judge can order you to move. You remain responsible for the property and its taxes in the meantime.
Can I stop the auction by paying what I owe?
The CourtHelp guide says you can stop the sale up until the auction by paying the money. RPAPL 1341 sets the court's side of it: payment into court of the amount due, with costs, leads to dismissal before the judgment of sale and a stay after it.
Will the court give me a lawyer?
At the first conference, a defendant appearing without a lawyer is treated as having asked to proceed as a poor person, and the court decides that request under CPLR 1101 (CPLR 3408(b)). If the court appoints counsel, it adjourns the conference so counsel can appear. The court must also explain the nature of the case and your rights to an unrepresented defendant (CPLR 3408(c)).
What if a default judgment has already been entered?
A default can sometimes be undone. CPLR 5015 lets a court vacate a judgment for reasons such as an excusable default, lack of jurisdiction or fraud, each with its own timing rule; we explain them in whether you can undo a default judgment in New York.
Can I appeal a judgment of foreclosure and sale?
Yes, within strict limits. The notice of appeal is generally due 30 days after you are served with the judgment and written notice of its entry (CPLR 5513), and an appeal does not by itself stop the sale. Our page on appealing or rearguing a foreclosure judgment in New York covers stays and timing.
Is a New York City foreclosure different?
The law is the same statewide, but each borough's Supreme Court runs its own conference parts, rules and auction calendar. For Brooklyn, see foreclosure and judgment defense for Brooklyn (Kings County) cases.