What Defenses Can You Raise in an NYC Foreclosure Case?

How the summons and complaint were served affects both personal jurisdiction and the time to appear.

Under CPLR 320, a defendant generally must appear within 20 days after personal delivery. When specified alternative methods of service apply, the period is generally 30 days after service is complete.

The affidavit of service can show when, where, and how service allegedly occurred. If service was defective, the defendant may have a personal-jurisdiction defense.

That objection has its own preservation rules. Raising improper service in an answer may not be enough. CPLR 3211(e) generally requires a defendant who pleads improper service to move for judgment on that ground within 60 days after serving the pleading, unless the court extends the period because of undue hardship or another statutory exception applies.

Standing asks whether the plaintiff had the right to enforce the note when the foreclosure action began.

The evidence may include possession of the note, endorsements, an allonge, or assignments, depending on how the plaintiff claims enforcement rights.

For a foreclosure involving a statutory "home loan," RPAPL § 1302-a creates an important exception to ordinary waiver rules. A lack-of-standing defense is not waived merely because it was omitted from a responsive pleading or pre-answer motion.

The statute restricts raising standing after a foreclosure sale, however, unless the judgment of foreclosure and sale was entered on default. Standing should therefore be evaluated against both the loan type and the procedural history.

A defendant who was not properly served may challenge the court's personal jurisdiction.

Relevant evidence can include the affidavit of service, the address used, the description of the person allegedly served, and records showing where the defendant lived or was present at the relevant time.

This is different from standing. Standing challenges the plaintiff's right to bring the foreclosure. Improper service challenges whether the court obtained jurisdiction over the defendant.

Because service objections can be lost through waiver, the 60-day CPLR 3211(e) rule discussed above can matter even when improper service was included in the answer. Procedural disputes of this kind may also overlap with broader civil litigation rules governing motions and evidence.

New York foreclosure law uses different notices for different purposes.

RPAPL § 1303 requires specified notice to a mortgagor when a foreclosure concerns an owner-occupied one-to-four-family dwelling. The notice must accompany the summons and complaint.

RPAPL § 1304 is separate. For a loan meeting the statute's definition of a "home loan," the lender, assignee, or mortgage loan servicer generally must send the prescribed notice at least 90 days before starting legal action.

Compliance involves more than timing. Section 1304 requires specified content and mailing procedures, including mailing by registered or certified mail and by first-class mail in a separate envelope. The statute expressly makes the required notice a condition precedent to commencing a covered foreclosure proceeding.

Commercial and other loans outside the statutory home-loan definition should not automatically be analyzed under § 1304.

A borrower may dispute whether the plaintiff calculated the debt correctly.

Bank statements, canceled checks, servicer records, escrow statements, modification agreements, and correspondence may show that a payment was omitted or a charge is disputed.

A useful defense identifies the specific part of the calculation at issue rather than simply asserting that the balance is wrong. Questions about the underlying loan terms may also overlap with loan agreements and disputes.

CPLR 3408 requires a mandatory settlement conference in qualifying residential foreclosure actions involving a home loan when the defendant resides at the property.

The conference may address loan modification, short sale, deed in lieu, or other loss-mitigation options. It does not replace the need to respond to the lawsuit.

CPLR 3408(m), however, protects a defendant who appears at the settlement conference after missing the original answer deadline. The defendant is presumed to have a reasonable excuse and may serve and file an answer within 30 days of the initial conference appearance, without substantive defenses being deemed waived. The default is deemed vacated when the answer is served and filed.

This rule applies within the statutory settlement-conference process. It is not a general 30-day extension for every foreclosure defendant.

If the plaintiff moves for summary judgment, merely identifying a possible defense may no longer be enough.

The defendant may need admissible evidence showing a genuine dispute about standing, service, notice, payment, or another material issue. At that stage, the question is not only whether a defense exists, but whether the evidence is sufficient to prevent judgment without a trial.