What Homeowners in Foreclosure Should Know… Part 5

Michael Schulman

If you’ve come to the conclusion that no loss mitigation option is right for you, the foreclosure process in the Courts continues.

Either the Motion for Summary Judgment or the Order of Reference once granted will result in the Court appointing a Referee to compute the amount owed and due to the lender. As anuninterested third party, the Referee will take into account the principal, interest, escrow advances, and any other figures necessary to compute the total amount owed and due to the lender.

As the Defendant, you or your attorney on your behalf, has the ability to oppose the Referee’s computation and have a hearing with the Referee regarding the figures if you do not believe they are correct.

Once the Referee’s computation is completed and sent to the Lender’s attorney, they prepare a Judgment of Foreclosure and Sale to be submitted to the Court for signature. The Judgment of Foreclosure and Sale incorporates all of the previous documents in the foreclosure action, as well as the Referee’s computation. This is the final document that gets submitted to the Court for review and signature before a foreclosure auction of the property is scheduled.

Once a Judgment of Foreclosure and Sale is filed with the Court, you or your attorney on your behalf, have the opportunity to oppose this motion. You are able to bring up any reasons why the foreclosure has not been conducted properly, any issues with the foreclosure or underlying documents, any issues with the loss mitigation process, and any reasons why you are still in disagreement with the Referee’s computation.

Depending on what county the property is located in, this motion can take several months to be reviewed and signed by the Court. Often times due to the high volume of cases, properties located in the five boroughs take longer to review and execute. It is not uncommon for it to take anywhere from 12-18 months (and sometimes longer)for some counties to review and process these motions. Other times in counties such as Nassau or Suffolk the time can be as short as 3-6 months for the motion to be reviewed and signed.

Once the Court reviews the documents and it is signed by the Court, the Lender now has a signed Judgment of Foreclosure and Sale. With this document the Lender can contact the Referee and schedule a foreclosure auction. It is the Referee who conducts the foreclosure auction.

Once the Referee provides a date and time for the foreclosure auction, the Lender must publish a Notice of Sale. The Lender has certain specific rules for the number of times it must be posted and in how many publications. In the event the Lender does not appropriately publish the Notice of Sale, this can be grounds for you or your attorney to stop the foreclosure auction, and allow the Lender to publish the Notice of Sale.

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