The service of process for foreclosure cases is rarely simple. Because New York is a judicial foreclosure state, lenders may not easily evict a resident and foreclose a house even if said resident has records of missed payments. It’s critical that legal papers are served properly upon the defendant. If a homeowner is not properly served a Summons and Complaint, the court may dismiss the lawsuit entirely.
The foreclosure process in New York involves strict rules and steps. For instance, lenders may only send a 90-day pre-foreclosure notice to borrowers who are at least 30 days late on their mortgage payments. Borrowers then are given a 90-day grace period to settle their balance. Apart from the amount of debt, the pre-foreclosure notice must also indicate a list of five housing counselor agencies the borrower can visit for assistance.
If the borrower still has not paid their debt, the lenders may proceed to court and file a complaint. Borrowers are given 20 days to respond to a summons and complaint if the process server served them personally and 30 days if the process service was done in another method apart from face-to-face delivery.
If a lender and their legal team violate any of these rules, borrowers can use those errors to strengthen their defense.
Methods of services
Under the New York Civil Practice Law and Rules (CPLR) and the Federal Rules of Civil Procedure (FRCP), a plaintiff is required to properly and promptly serve both the complaint and summons to the defendant. The complaint is the petition filed by the plaintiff with the court to begin the foreclosure lawsuit, while summons informs the defendant of their offenses and how long they have to respond.
According to the New York Civil Procedures Rules, service can be carried out in one of several methods:
The legal documents are handed to the defendant by anyone who is over 18 years old and isn’t directly involved with the case.
Papers can’t be handed out on Sundays or on a person’s religious observance
days. For many Housing Court cases in New York, papers should be served between 6:00 AM – 10:00 PM.
Substituted service can only be used after an unsuccessful attempt at personal delivery.
In this method, the papers are left to a person of age and in the right mental state to give the documents to the defendant.
In a civil case, the papers can be entrusted to someone else at the defendant’s residence or workplace.
In a landlord-tenant case, the papers can be left with a responsible party at the defendant’s home, but not at their workplace.
In both cases, a copy of the papers must also be mailed to the defendant
This method involves leaving the papers for the defendant in a location where they are likely to be found. Apart from the delivered papers, a copy of the documents must be mailed to the defendant.
In a civil case, the papers can be taped to the door of the defendant’s residence or workplace.
In a landlord-tenant case, the papers can be taped to the door or slipped under the door of the defendant’s home, but not at their workplace.
Reputable foreclosure process servers
If legal papers are not served in compliance with the law, your foreclosure case may be thrown out of court for bad service.
Working with experienced foreclosure process servers can ensure an error-free delivery. At Serve Index LLC, our licensed team is trained to perform due diligence and ensure the service remains undisputed and credible.
Give us a call at 1-888-994-6339 and we’ll be happy to discuss your needs.