Foreclosure Defense Attorney in Flushing, NY (Served with Papers? Start Here)

Flushing's condominium stock, from the towers along Main Street to the six-story buildings off Kissena Boulevard, is governed by the Condominium Act, and every unit owner signed on to a declaration and bylaws that make common charges a personal obligation and a charge against the unit. When an owner falls behind, the board's managing agent sends demand letters, then the board's attorney files a notice of lien with the City Register under Real Property Law 339-z. Interest, late fees and the board's attorney's fees are added if the bylaws allow. Six months of arrears is a common trigger for the lawsuit, though nothing in the statute requires the board to wait.

The complaint looks like a mortgage foreclosure and follows the same procedure: summons, notice of pendency, an answer due in 20 or 30 days, motions, an order of reference and a judgment of foreclosure and sale. What is different is the economics. Real Property Law 339-z subordinates the board's lien to a first mortgage of record, so at auction the buyer takes the Flushing unit subject to the mortgage, and the board is paid only from what a bidder will pay for equity above it. In a building where the units are heavily mortgaged, that is little or nothing, and boards know it. The suit is leverage to force payment, not a route to owning the unit, and a unit owner who answers and proposes a realistic plan usually ends the case with a stipulation. A unit owner who ignores it hands the board a judgment for the full arrears, fees and interest, and a lien that must be paid at any sale or refinance.

The two actions interact in ways that a Flushing owner can use. The mortgage lender, once it sues, names the condominium board as a defendant because the board's lien is junior, and the board's answer in the lender's case typically asserts its lien and asks for payment from any surplus. Many boards, having been named, slow their own case, because a judgment of foreclosure in the lender's action will wipe out the board's lien anyway and the board's better route is to insist that the lender pay common charges accruing during the case. Under Real Property Law 339-z as amended, a first mortgagee who takes title at auction is liable for up to six months of unpaid common charges in certain buildings, which gives boards a reason to press the lender rather than the owner.

In the lender's action the full set of defenses applies: the RPAPL 1304 90-day notice mailed separately to each borrower with a Queens County counselor list, the RPAPL 1306 filing within three business days, standing, the six-year CPLR 213(4) limitations period, and the mandatory CPLR 3408 settlement conference for an owner-occupied unit. In the board's action the defenses are narrower but real: whether the notice of lien was properly filed and served, whether the charges were levied in accordance with the bylaws, whether special assessments were validly adopted, and whether the fees and interest claimed are authorized. I answer both cases, keep the lender's case in the conference part where a modification is negotiated, and negotiate the board's arrears into a plan that runs alongside it. A Flushing owner who settles with the board while the lender's case is pending removes the board's motive to push and keeps the building's management from making the mortgage negotiation harder than it needs to be.

Flushing residents are far from the Sutphin Boulevard courthouse in Jamaica in every sense but the map, and the Queens court system has adapted: interpreters in Mandarin, Cantonese and Korean are available in the conference part on request, and the court's foreclosure documents are published in translation. I have practiced foreclosure defense for 27 years, and I have watched the Jamaica courthouse become one of the more accommodating in the state for homeowners whose first language is not English, which matters when a settlement conference turns on whether the servicer's application checklist was understood.

The court attorney referees in the conference part supervise the CPLR 3408 conferences in the lender's case, record whether the servicer negotiates in good faith, and are accustomed to Flushing files where the unit's common charges and a building assessment are part of the affordability picture. The assigned justices decide the ordinary motions, standing, RPAPL 1304, CPLR 213(4) and the amount due in the mortgage case, and the validity of the lien and the charges in the board's case. A contested Flushing mortgage foreclosure runs two to four years from the summons to any auction; a board's action moves faster on paper but almost always settles. An unanswered case of either kind reaches judgment far sooner, and an unanswered common charge case leaves a judgment for fees that can double the arrears.

Condominium lenders sometimes argue that the statute was written for houses, and the argument fails; RPAPL 1304 defines a home loan by the borrower's occupancy and the loan's purpose, not the form of ownership, and unit mortgages across Flushing are covered. The Second Department, which hears appeals from Queens, requires strict compliance and puts the burden on the plaintiff to prove the mailing by a witness with personal knowledge or a standard practice the witness actually follows. Flushing loans were originated in volume by a handful of lenders during the 2000s condo boom and sold repeatedly, and the current plaintiff frequently cannot produce that witness. Notices sent to two borrowers in a single envelope, notices with extra collection language, notices mailed to the unit when the borrower had given a different mailing address, and boilerplate affidavits have each been rejected. RPAPL 1304 also requires the notice to be available in the borrower's language where the servicer has that information, and a Mandarin-speaking Flushing borrower who received only English is a fact worth developing.

RPAPL 1306 requires the electronic filing with the Department of Financial Services within three business days of mailing, proven by the confirmation, and a complaint that pleads the filing without the confirmation has not established it. Failure on either statute ends the lender's case without prejudice and forces a restart of the 90-day process. None of this reaches the board's case, which has its own requirements under Real Property Law 339-z and the bylaws, and a Flushing owner facing both cannot let a strong notice defense in the lender's case become an excuse to ignore the board's.

The two summonses may arrive weeks apart and look alike, and a Flushing owner who answers the bank and assumes the board is covered, or the reverse, defaults in the other case. Each default has consequences. In the lender's action a default forfeits standing, the notice defenses and the statute of limitations, eliminates the mandatory settlement conference, and moves the unit toward auction in about a year. In the board's action a default produces a judgment for the arrears plus every fee and interest charge the bylaws allow, and that judgment becomes a lien the owner must satisfy to sell, refinance or even complete a modification, since lenders will not modify a loan on a unit with an unresolved board judgment.

The lender's answer pleads standing first or it is waived, the six-year limitations period as an affirmative defense, the RPAPL 1304 and 1306 conditions precedent, and a specific denial of the amount claimed, and it states that the owner occupies the Flushing unit so the CPLR 3408 conference is required. The board's answer challenges the lien filing and its service, the adoption of any special assessment, the calculation of interest and late fees, and the reasonableness of the attorney's fees claimed, and it may counterclaim where the board has failed in its own obligations to the unit. Nothing said to the managing agent or the servicer extends either deadline; a written stipulation from the plaintiff's attorney does, and I obtain them in both cases when an owner needs time to assemble records. Miss a deadline and a motion to vacate is still available, but it costs more than answering did.

For the Flushing owner who wants to stay, the mortgage is modified through the conference part on Sutphin Boulevard, and the modification application must show the common charges as a housing expense; a servicer that ignores them produces a payment the household cannot carry, and a court attorney referee will send it back. The board's arrears are settled separately, usually on a plan of twelve to twenty-four months with the board's fees reduced in exchange for reliable payment, and the two agreements are timed so that one does not break the other. A reinstatement of the mortgage combined with a board plan ends both cases at once.

For the owner who is leaving, a sale while the cases are pending is the clean exit. Flushing units bought before 2015 carry real equity, the buyer's title company pays the mortgage and the board's lien at closing, the board issues its estoppel letter and waiver of the right of first refusal, and the balance is the owner's. The auction is the outcome to avoid in either case: a discounted price, default interest, the board's fees and the lender's fees off the top, and any surplus deposited with the Queens County Clerk until an RPAPL 1361 claim is filed. Where the unit is worth less than the mortgage, a short sale needs the lender's consent, a written RPAPL 1371 waiver of the deficiency, and the board's agreement to release its lien for what the sale can pay, which boards give when the alternative is a bank-owned unit that pays nothing. I coordinate all three parties for Flushing owners, and the sale closes.