This page explains New York law. The figure in the referee's report becomes the amount in the judgment of foreclosure and sale. It sets how much must be paid to stop the sale, how much of any sale price goes to the lender, and how much is left as surplus or claimed as a deficiency. KOR Law LLP's foreclosure defense practice describes its approach as examining the loan documentation as carefully as the lender did. Where this step sits in the whole case is shown in what happens after you are served with a foreclosure summons in New York.
When is a referee appointed, and what does the referee do?
Under RPAPL 1321(1), when a defendant fails to answer in time, or the answer admits the plaintiff's right, the court on the plaintiff's motion either determines the amount due itself or directs a referee to compute the amount due to the plaintiff and to any prior lienholders who are defendants, and to report whether the property can be sold in parcels. In a foreclosure of a one-to-four family residence, the order of reference must include the name and telephone number of the mortgage servicer. The court system's CourtHelp guide describes the same step from the homeowner's side: the order of reference sends the case to a referee to add up what the plaintiff is owed, including principal, interest, late charges, foreclosure fees and costs, and after the referee reports, the plaintiff asks the court to enter a judgment of foreclosure and sale.
The referee's job is arithmetic, not liability. Whether the lender may foreclose at all is decided before the reference, by a default, an admission or a ruling on the merits. If the owner never answered, that is how the case reached this stage, and the options are set out in what happens if you missed the deadline to answer a foreclosure in New York. If the whole debt is not yet due, the referee also reports the amount that will become due later (RPAPL 1321(1)).
What goes into the amount owed?
| Item | What to compare it against |
|---|---|
| Unpaid principal | The note, any modification, and your own record of payments |
| Interest | The rate and start date in the note; any period when the court tolled interest because the lender did not negotiate in good faith (CPLR 3408(j)) |
| Late charges and default interest | Whether the note and mortgage actually provide for them, and at what rate |
| Advances for taxes, insurance and property upkeep | Escrow statements and proof the lender paid what it claims |
| Fees and costs of the foreclosure | Whether the loan documents or a statute allow them, and whether they are documented |
Kings County's form order of reference, which its rules require in every foreclosure there, directs the referee to compute principal, interest and other disbursements advanced "as provided for by statute and in the Note and Mortgage." That phrase is the test for every line: an item the documents or a statute do not support should not be in the total. If the court found during the settlement conference process that the lender failed to negotiate in good faith, the court must at least toll interest, costs and fees during the delay the lender caused (CPLR 3408(j)), and the computation should reflect that; see what happens at a New York foreclosure settlement conference.
Advances deserve the closest look. Check whether a tax bill you paid yourself also appears as a lender advance, whether insurance the lender placed matches the period it covered, and whether payments made after the default, including any trial modification payments, appear in the history. Where a defendant is an infant or an absentee, RPAPL 1321(1) also directs the referee to examine the plaintiff or its agent under oath about payments that have been made.
How and when do you object?
CPLR 4403 governs a referee's report: on any party's motion, or on the judge's own initiative, the judge may confirm or reject the report in whole or in part, make new findings with or without taking more testimony, or order a new hearing. The motion is to be made within 15 days after the report is filed. As CourtHelp describes, the court acts on the report when the plaintiff asks for a judgment of foreclosure and sale, so papers opposing that motion should point to specific line items and attach the documents that contradict them, such as payment records and escrow statements.
Kings County adds detail. Its form order of reference directs the referee to report within 60 days of the order, and the plaintiff to move for judgment within 60 days of the report except for good cause. The order, with notice of entry, must be served on the referee, the owner, named tenants and anyone else entitled to notice within 20 days of entry and at least 30 days before any hearing before the referee, and the referee may not take evidence without proof of that service. The county's general rules add that each order of reference must attach the chain of assignment, and that an application for a judgment of foreclosure and sale must be made within one year after the order of reference is entered, or the action is dismissed automatically, unless a forbearance or settlement agreement has been filed. The rest of the Brooklyn courthouse routine is in what to expect at Kings County Supreme Court in a foreclosure case.
What happens after the report is confirmed?
The judgment of foreclosure and sale directs a sale by the sheriff or a referee within 90 days of its date (RPAPL 1351(1)). The judgment amount then drives everything that follows. How the auction is scheduled in each borough is in where and when foreclosure auctions are held in New York City. What happens to money above the judgment is in who gets the surplus money after a New York foreclosure sale. If the court confirmed a computation you believe is wrong, the deadlines for reargument and appeal are in whether you can appeal or reargue a foreclosure judgment in New York.
What changes the answer for your computation?
- How the case reached the reference. RPAPL 1321(1) applies after a default or an admission; CourtHelp notes an order of reference also follows a plaintiff's win on summary judgment or at trial.
- A bad-faith finding at the conference. The court must, at a minimum, toll interest, costs and fees for any undue delay the plaintiff caused (CPLR 3408(j)).
- The county. In Kings County, the form order sets 60-day clocks for the report and the judgment motion, requires 20 days' service of the order and 30 days' notice before a hearing, and the general rules require the chain of assignment and a judgment motion within one year (Kings County General Foreclosure Rules 2, 5 and 7).
- Standing on a home loan. A lack-of-standing defense on a home loan is not waived by leaving it out of the answer, but it cannot be raised after the sale unless the judgment was entered on default (RPAPL 1302-a). Our page on dismissal because the lender lacked standing explains the defense.
- A shortfall after the sale. A deficiency judgment starts from the amount owing under the judgment, with interest, plus prior liens and the costs of the action, including the referee's fee, less the higher of the market value or the sale price (RPAPL 1371(2)), so an overstated judgment can raise a deficiency too. How the court values the property for that motion is covered in how to challenge the appraisal behind a New York deficiency judgment.
For example: checking a computation in a Brooklyn case
For example, imagine a Brooklyn homeowner who answered the complaint and lost the plaintiff's summary judgment motion. (This is a made-up illustration, not a real client or result, and the figures are invented.) The court signs an order of reference, on the form the county's rules require, on Wednesday, March 3, 2027. The plaintiff must serve it with notice of entry within 20 days, so by March 23, and at least 30 days before any hearing before the referee.
The referee's report is filed on Tuesday, April 20, inside the 60 days the order allows. It shows $312,400, including default interest at a rate the note does not mention, a run of property inspection charges, and a tax advance for a bill the owner paid herself. She has 15 days after the filing, until May 5, to move under CPLR 4403, and she does, attaching the note, her canceled tax check and the servicer's own payment history. The plaintiff must move for judgment within 60 days of the report unless it shows good cause. The judge can confirm the report, reject the disputed items in whole or in part, make new findings, or order a hearing, and whatever figure survives becomes the amount in the judgment.
Common mistakes with the referee's report
- Missing the 15 days. CPLR 4403 sets the motion window from the filing of the report, not from when you first see it.
- Objecting to the total instead of the lines. A general complaint that the number is too high gives the judge nothing to correct; each disputed item needs a document behind it.
- Forgetting a tolling order. If interest was tolled after a bad-faith finding, check that the referee left that period out.
- Overlooking your own payments. Trial modification payments, partial payments and taxes you paid directly are easy to miss in a servicer's printout.
- Ignoring the order of reference. In Kings County, the order must be served on the owner at least 30 days before any hearing before the referee, and the report is due within 60 days of the order, so the order arriving is the signal to act.
What to do this week
- Find the order of reference, the date it was entered and the referee's name, office and telephone number.
- Check the court file for the referee's report and its filing date, and count 15 days from that date.
- Ask the servicer, in writing, for a full payment history and an escrow history for the life of the loan.
- Line up the note, any modification, tax receipts and insurance records against each item in the computation.
- Collect any court order from the settlement conference stage, especially one finding a lack of good faith.
- Bring the papers on our foreclosure defense consultation checklist to a lawyer before the 15 days run.
Frequently asked questions
Who is the referee?
A person the court appoints by name, office and telephone number in the order of reference. In Kings County, the form order has the referee certify compliance with Part 36 of the Rules of the Chief Judge, and it sets how the referee is paid by the plaintiff, an amount the plaintiff may recoup as a cost of the case.
Will there be a hearing before the referee?
There can be. The Kings form order requires service of the order at least 30 days before any hearing and bars the referee from taking evidence without proof of that service. Under CPLR 4403 the judge may also take additional testimony or order a new hearing.
Can I still object if I never answered the complaint?
The reference often follows a default, and the first question is then whether the default can be undone. CourtHelp says a defaulting owner can ask the court to vacate the default and allow an answer if there are defenses, and CPLR 5015 sets the grounds and timing, explained in whether you can undo a default judgment in New York.
Does the referee decide whether the lender can foreclose?
No. Under RPAPL 1321 the referee computes the amount due and reports on selling in parcels. The right to foreclose has already been established by the default, admission or ruling that led to the order of reference.
What if the judgment has already been entered with the wrong amount?
A motion to reargue must be made within 30 days after service of the order with notice of entry (CPLR 2221(d)), and an appeal as of right must generally be taken within 30 days after service of the judgment with notice of entry (CPLR 5513(a)). An appeal does not by itself stop a sale; a stay is a separate request.
Can I stop the case by paying the amount due?
RPAPL 1341 requires the court to dismiss the complaint if the defendant pays into court the amount due, with costs, before the judgment directing sale, and to stay the proceedings if payment comes after that judgment but before the sale. An accurate computation keeps that number honest.