The foreclosure was filed early 2011 on an investment property in Queens NY . Neglected to answer but have no excusable reason for default . I've since discovered that the plaintiff had no legal standing to file the case . They are a securitized trust who is not the original lender . They've never filed an assignment , so they never had standing at commencement . There's also robo - signing and no endorsed note that I've seen . Recent NY cases identify the same people involved and those cases were dismissed . And MERS is involved . So I think I have a meritorious defense . What are my options at this late date , to file an answer or motion to dismiss ? Subject matter jurisdiction ? Failure to join a necessary party ? ( Meaning , the actual owner if this plaintiff is not the owner ? ) Thank you !
You sound as if you've done your research on the issue! It's as if you are daring some lawyer to tell you to hire a lawyer. I would definitely suggest you make a motion to dismiss pursuant to CPLR 3211 and use all of the affirmative defenses at your disposal. Make sure to serve all discovery demands including either a Demand for a Verified Bill of Particulars or Interrogatories, a Notice for D&I, and A Notice for EBT to see what the story is with the Note. Don't forget that you will need to file the RJI if the plaintiff has not already done so, (but usually is done at the commencement of the Proceeding, which I'm sure you are aware). Even if you are the defendant you will need to file the motion fee with the clerk. As to Robo-signing, if this is one of the "major" lenders, you may wish to Google the name of the person who signed to see if there have already been cases decided against the bank on that issue. What I don't understand is how someone with so much knowledge about foreclosures could possibly toss it all away by neglecting to answer the complaint. It's not as if this is owner occupied residential in Suffolk, this is commercial property in Queens! Just remember that in foreclosures it is the INVESTOR not the servicer that is named as the plaintiff, and these loans get transferred from investor to investor through pooling and servicing agreements all the time and is not necessarily a basis for champerty and maintenance, but you might as well raise those affirmative defenses also. Good Luck.
No matter what you decide to do; it seems to be in your best interest to at least consult with an attorney before filing any motion. All the defenses you have mentioned have all been waived since not raised in a timely answer or pre-answer motion.
Also, without a reasonable excuse for default; there may be only one (1) or two (2) actual motions that you could file to have the case dismissed; or at least have leave to answer.
I wish you the best of luck.
I assume there's been no default judgment entered. In that case, courts are a bit lenient and sometimes permit a belated answer. I agree with the previous comment that you appear to have done your homework, and should respond with a motion to dismiss; when you file that motion, discovery is stayed. It might be a good idea to consult with a lawyer knowledgeable in the area.
Kevin Joseph AbruzzesePersonal Injury LawyerMineola, NY ·
You should consult with a lawyer to determine whether or not the summons was properly served on you. In the event the summons was not personally served on you it would not be necessary to have a reasonable excuse since the court would lack personal jurisdiction over you and a motion can be made to vacate the default and dismiss the complaint based on evidence establishing your defense.
