A foreclosure sale is a daunting concept for a homeowner – the idea of losing one’s home is scary and nerve-racking. Debt may be piling up, and you need to retain an experienced and dedicated real estate attorney. For a free initial consultation on foreclosures or other real estate matters contact us.
What is a Motion to Vacate A Foreclosure Sale
A Motion to Vacate a Foreclosure Sale is a legal process by which the defendant homeowner files a motion with the court to set aside the foreclosure sale of their home. If a homeowner is facing foreclosure, this important tool is important to utilize when other avenues may seem hopeless.
The Most Common Reasons to Set Aside a Foreclosure Sale
The most common reasons to set aside a foreclosure sale include:
- The homeowner can pay the mortgage
- The homeowner can identify a buyer
- The homeowner has filed for bankruptcy
- The homeowner has started to refinance and will now be able to pay the mortgage
When Should a Motion to Vacate A Sale Be Used
The foreclosure process is put into motion through the courts and a judge. After a judgement of foreclosure is signed by a judge, the home will be put up at an auction at the courthouse – to be sold to the highest bidder. The homeowner can pump the brakes on the auction if he or she can afford to begin making payments again on the house (known as the right of redemption). Furthermore, the homeowner can petition the court to prevent an auction by submitting to a judge an Order to Show Cause.
How Does a Motion to Set Aside A Foreclosure Sale Work
The homeowner must submit an Order to Show Cause. When the foreclosure process begins, there is usually a default on mortgage payments and a default by the homeowner for not filing an answer to the plaintiff lender’s Summons and Complaint. At this point, the homeowner can petition the court to set aside (or cancel) the default judgment and allow time to file an answer and prove that the homeowner has defenses to the foreclosure.
If you would like to learn more about Vacating a Foreclosure Sale on your home, fill out this free consultation form to understand your rights in this process. Our attorneys are here to help.
Determination of the Grounds for Foreclosure
Generally, homeowners have to be more than 120 days late on their mortgage payments. After which, the counsel for the lender will bring an action in court to initiate foreclosure proceedings
Bring a Motion Before Court
In order to vacate the foreclosure sale, you must file an Order to Show Cause to stop the sale pursuant to CPLR 2214(d). The Order to Show Cause to stop the sale should ask the Court to stay the sale until the judge makes a decision.
Ruling of the Judge
The judge will make a ruling on the Order to Show Cause.
The Lender’s Counsel Vacates The Sale
If the judge rules in favor of the borrower, the lender’s counsel must vacate the sale. If they neglect to do this, the trial court can also set aside the foreclosure action and vacate the sale.
How to Fill Out a Motion to Vacate a Foreclosure Sale
A Motion to Cancel a Foreclosure is filed with an Order to Show Cause. An Order to Show Cause Consists of a top page called an Order to Show Cause (OSC), followed by an Affidavit in Support of the OSC, and copies of any documents that the moving side (movant) thinks would help the Judge make a decision.
The movant homeowner must submit the OSC to the court for a judge to review and sign.
How To File a Motion to Vacate a Foreclosure Sale
Steps for Filing a Motion
If the judge signs it, the judge picks the court date and fills it in on the OSC. The movant may have to wait for the OSC to be signed, or the movant may have to come back. If the judge does not sign the OSC, the judge might amend the OSC to identify what is outstanding before the judge will sign it. If the movant thinks the judge has made a mistake, he or she can go to a higher court and have the judge’s decision reviewed.
For more information, please reference the New York courts website.
Getting Help From A Foreclosure Attorney
At The Law Office of Yuriy Moshes, our seasoned real estate attorneys have the experience and resources to help you in vacating the foreclosure sale on your home.
Frequently Asked Questions (FAQ) about Motions to Vacate Foreclosure Sale
Vacating a foreclosure means that the foreclosure is suspended temporarily in an effort for you as the homeowner to make payments on your mortgage again. Under certain circumstances, you may be able to submit an emergency motion to cancel a foreclosure sale.
A lender can rescind a foreclosure sale if a borrower shows he or she has the money and then starts to make payments on his or her mortgage. Furthermore, we are living in unprecedented times caused by Covid-19. In December, Governor Andrew Cuomo signed the Covid-19 Emergency Eviction and Foreclosure Prevention Act of 2020, which prevents residential evictions and foreclosure proceedings.
Yes. With the help of an attorney, you can file a Notice of Appeal and a merit brief to argue what errors were made when a Courts enter the judgment of foreclosure.
Foreclosure procedures can take several months or even a few years, in some cases. Upon foreclosure, the foreclosed owner will receive notice up to 30 days to leave the premises. But once the sale is complete, you lose your home. And then you will get notice for when you have to move out.
If the lender has acted in bad faith, the lender has the following options:
· Seek to have the foreclosure dismissed
· Sue the lender for damages.
In wrongful foreclosure claims, the homeowner must first prove the following:
1. That a legal duty was owed to the homeowner by the foreclosing lender,
2. That that duty was breached in some way,
3. That the breach of duty led to damages, and
4. What those damages were
If you would like to learn more about how we can assist you in filing a motion to rescind a foreclosure sale for your home, or are interested in other real estate matters, contact us today for a free and confidential discussion. A motion to set aside a foreclosure sale sample can be made available upon request.