Missed a Mortgage Payment? Here’s What You Need to Know

By Robert Jacovetti

It is not uncommon for an individual to miss a mortgage payment, however, what you do after a missed payment can make all the difference. The idea of losing your home to foreclosure can be devastating, but knowing the mortgage foreclosure process can help you stay in your home. The average time for the foreclosure process in New York is four hundred forty-five (445) days from the date of the first missed mortgage payment. Nevertheless, if you receive a notice of foreclosure, it is important to seek an attorney immediately because important deadlines must be met.

Once you miss a mortgage payment, you can expect your lender to start moving quickly. Fifteen (15) days after the missed payment, the lender will assess a late charge. In doing so, the lender will often either send a letter or give you a call to get in contact about the missed payment.

If the mortgage is for a home that you are currently residing in, the lender is required to send you a pre-foreclosure notice after the 30th day following a missed payment. In New York, the notice will explain that after ninety (90) days a foreclosure action will commence. This ninety-day window gives you an opportunity to contact your lender and work out a resolution other than a foreclosure sale. At some time during this period, the lender will also provide you with a “demand” letter detailing terms of the mortgage and the amount owed. At this point, the acceleration clause found in most mortgages will likely make the full value of the loan payable.

After the ninetieth day has passed since the sending of the pre-foreclosure notice, the lender will begin commencing a judicial foreclosure action. The process will begin with the lender filing a lis pendens in the county clerk’s office stating there is a foreclosure action commenced. Next, the lender will proceed with the service of a summons and complaint on all parties. If you have not already obtained an attorney at this point, it is highly recommended you contact an attorney immediately upon receipt of a summons and complaint.

Once the summons and complaint have been served and the proof of service is filed with the court, the court will schedule a settlement conference within sixty (60) days. The settlement conference will give you an opportunity to meet with your lender face to face and attempt to work out a non-foreclosure outcome in order to settle the debt. The conference will usually require the production of proof of income, and most recent tax return in an attempt to work out a modification, or other settlement.

After a settlement conference, the clock begins ticking to file an answer to the complaint. In an answer, there are many defenses an individual may be able to rise to the foreclosure process. Therefore, seeking advice from an attorney knowledgeable in mortgage foreclosure is crucial. If an answer to the complaint is not filed within thirty (30) days of the case being released from settlement conference, then a default judgment will be entered in favor of the lender.

After an answer is filed and served, the lender will likely move for summary judgment. (If no answer is filed, they will advise the court there has been no answer and will move on to computing the amount owed.) If the judge rules in favor of the lender, they will ask the court to appoint a referee to calculate the amount owed, and then eventually motion for a final judgment. In the final judgment, the judge will direct the lender to commence the process for a foreclosure sale. The sale usually occurs within four (4) months after the court’s ruling. A notice of sale is published in the local newspaper once a week for four weeks, and then a sale is conducted at the county courthouse.

It is easy to fall behind on mortgage payments and can be difficult to catch up. Before you know it, you may find yourself facing foreclosure. Although the New York foreclosure process is a long and often tenuous one, there are many important deadlines to be met. Seeking help from an attorney skilled in mortgage foreclosures can be the difference in saving your home. The Law Office of Robert Jacovetti, P.C. is experienced in foreclosure defense and will review your case to provide the best foreclosure defense. Contact the office in New York City or Mineola, NY today for a free phone consultation.