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

Hollis homeowners who lost a case, often by never answering it, tend to learn about the auction from a stranger at the door claiming to own the house. That person or company may in fact hold the referee's deed, and the deed does transfer ownership. What it does not do is authorize anyone to change the locks, remove belongings, shut off utilities or threaten the family. New York treats a former owner who stays after a foreclosure sale as a person entitled to notice and a hearing before removal, and self-help eviction is a crime under Real Property Actions and Proceedings Law and the Administrative Code, with civil penalties and a right to be restored.

The lawful route for the purchaser is RPAPL 713(5): a ten-day notice to quit, personally served with a certified copy of the referee's deed exhibited, followed by a summary holdover proceeding in the Queens County Civil Court, Housing Part, on Sutphin Boulevard. The Hollis occupant answers, appears, and can raise defenses including improper service of the notice, a defective deed, an unresolved motion to vacate the sale in Supreme Court, and tenant status where the occupant is a renter. The Housing Court judgment, if the purchaser wins, is followed by a marshal's notice and, ordinarily, a stay of execution for a period the court sets. From the referee's deed to an actual removal is rarely less than three or four months and often longer, and that time is what the household uses to arrange a move on its own terms or to negotiate a paid departure.

Purchasers at a Sutphin Boulevard auction, and lenders who take back Hollis houses when no one else bids, want possession quickly and cleanly. A contested holdover in Queens Housing Court costs them months of carrying charges, legal fees and the risk that a family under pressure leaves the house damaged. Paying the occupant to leave on a schedule is cheaper, and the servicers and asset managers who handle these properties have standard relocation assistance programs for exactly that reason. The first offer is a floor. It goes up when the occupant has appeared in Housing Court with counsel, has raised a plausible defense, or has a pending motion in Supreme Court to vacate the sale.

The agreement I negotiate for a Hollis family covers the amount, the move-out date, payment on delivery of keys with the house in broom-clean condition, a waiver of any claim for use and occupancy for the months since the deed, and a discontinuance of the holdover. The household should not sign a purchaser's form on the doorstep, should not accept a promise of payment after they leave, and should not surrender keys before the check clears. Where the occupant is a tenant rather than the former owner, RPAPL 1305 gives them the remainder of a bona fide lease or 90 days, whichever is longer, and a purchaser who wants them out sooner pays for that too. I have watched Hollis families move from a threatened lockout to a funded, orderly relocation in a matter of weeks once the purchaser understood the occupant knew the law.

The Sutphin Boulevard corridor in Jamaica holds both courts a Hollis homeowner may face: the Supreme Court, where the foreclosure is decided and the auction held, and the Civil Court's Housing Part a few blocks away, where a purchaser must go to remove an occupant after the sale. I have practiced foreclosure defense for 27 years, and in Jamaica the two courts talk to each other in practice, because a Housing Court judge will generally adjourn a holdover while a motion to vacate the sale is pending before the Supreme Court justice who signed the judgment.

Before any sale, the Supreme Court case follows the ordinary path. The court attorney referees in the conference part run the CPLR 3408 settlement conferences for owner-occupied Hollis homes and record whether the servicer negotiates in good faith. The assigned justice decides standing, RPAPL 1304 and 1306, CPLR 213(4) and the amount due, and Queens justices have dismissed Southeast Queens foreclosures on each of those grounds. A contested Hollis case runs two to four years from the summons to an auction at the courthouse. An unanswered case reaches the auction in about a year, which is why so many Hollis families meet me for the first time after the deed has changed hands. Even then, an order to show cause in Supreme Court to vacate the default and the sale, supported by a defect in the service or the notice of sale, can undo the auction, and I have brought them.

The Second Department requires strict compliance with RPAPL 1304 and places the burden on the plaintiff to prove the mailing through a witness with personal knowledge or a standard office practice the witness actually follows. Hollis loans from the boom years were sold and re-serviced repeatedly, and the current plaintiff often cannot produce that witness. Notices combining two borrowers in one envelope, notices with extra collection language, counselor lists for the wrong county and conclusory mailing affidavits have all been rejected by the appellate court that reviews Queens cases. RPAPL 1306 requires the filing with the Department of Financial Services within three business days, proven by the confirmation, and a plaintiff that pleads it without the confirmation has not established the condition.

After a default judgment and sale, these defects are the substance of a motion to vacate under CPLR 5015. A Hollis owner who was never properly served has a jurisdictional argument that requires no excuse for the default; one who was served but defaulted needs a reasonable excuse and a meritorious defense, and a lender's failure to prove RPAPL 1304 compliance is such a defense. Courts weigh the purchaser's rights, so the motion must be made quickly, before a deed is recorded and the property resold, and the occupant should stay in possession while it is pending. Where the sale is vacated, the case returns to the point before judgment, the household is back in the conference part, and the 90-day process may have to be restarted, sometimes outside the six years CPLR 213(4) allows.

Answering on time is what preserves every defense a Hollis homeowner has. The answer pleads standing first or it is waived, the statute of limitations as an affirmative defense, the RPAPL 1304 and 1306 conditions precedent, and a specific denial of the amount claimed, and it establishes owner occupancy so the CPLR 3408 conference is mandatory. A contested case runs two to four years and puts the household in front of a court attorney referee with the leverage those defenses provide. An unanswered case runs to auction in about a year with no conference and no review of the lender's proof.

A missed deadline is not the end. Before judgment, a motion under CPLR 3012(d) to compel acceptance of a late answer is granted liberally in Queens where the delay is short and a defense is shown. After judgment, CPLR 5015(a)(1) requires a reasonable excuse and a meritorious defense, and CPLR 5015(a)(4) requires neither where service was never properly made, which happens more often than lenders admit when a process server claims to have left papers with a person of suitable age at a Hollis address where no such person lived. Even after a sale, these motions are brought by order to show cause with a request to stay the purchaser's holdover. What no Hollis owner should do is wait until the marshal's notice arrives; every month that passes without a motion makes a court less willing to unwind a completed sale.

For a Hollis household still before the auction, the full range applies. A modification through the conference part on Sutphin Boulevard ends the case on a payment the household can carry; a reinstatement or repayment plan cures a hardship that has passed; a sale while the case is pending pays the lender at closing and keeps the equity, and Hollis equity is substantial after two decades of appreciation. A short sale on an underwater loan requires the lender's consent and a written RPAPL 1371 waiver, and a deed in lieu with a waiver is the last alternative to an auction.

After a referee's deed, the choices narrow but do not disappear. A motion to vacate the sale, where service or the notice of sale was defective or the lender never proved RPAPL 1304, can restore title. Where the sale stands, the former owner negotiates the terms of leaving through the holdover proceeding, with cash for keys as the usual result. And where the auction price exceeded the debt, which happens regularly with Hollis houses bought in the 1990s, the surplus is deposited with the Queens County Clerk and belongs to the former owner, subject to junior liens, on an RPAPL 1361 motion and a referee's hearing; lenders do not file that motion for you. A deficiency is sought only by an RPAPL 1371 motion within 90 days of the deed and is measured against fair market value, not the auction price. I take the same call from a Hollis family before the sale and after it, and there is more to do at either point than they expect.