Protecting Your Home: How a Motion for Protective Order Can Stop Foreclosure Sales During Your Appeal
When facing a foreclosure judgment in New York, homeowners often feel their options have run out. However, even after a judgment of foreclosure and sale has been entered, there are still legal avenues available to prevent the immediate loss of your home while you pursue an appeal. Understanding how to properly file a Motion for Protective Order can be the difference between keeping your home and watching it disappear at a foreclosure auction.
The Critical Window: Understanding Your Rights After Judgment
After the Judge signs a judgment of foreclosure and sale, your home will be sold by the Referee at an auction sale at the courthouse to the highest bidder. However, at common law, however, a borrower’s right to redeem the home lasted until the home was officially sold at public auction, meaning that entry of judgment of foreclosure and sale does not act as an end-all for the borrower’s rights.
Upon entry of Judgment of Foreclosure and Sale in New York Supreme Court, the judgment will generally direct that the mortgaged premises be sold at public auction at a particular date and time, typically four months after entry of the foreclosure judgment. This timeframe provides a crucial opportunity for homeowners to take protective action.
Order to Show Cause: Your Primary Defense Tool
The most common avenue New York foreclosure attorneys will take, especially those retained only after a judgment of foreclosure and sale is entered, is to file an Order to Show Cause to stop the sale pursuant to CPLR 2214(d). Orders to show cause may be filed in lieu of a notice of motion to vacate or reargue the judgment of foreclosure and sale, and they generally result in quicker adjudication when time is of the essence.
You can ask the Court to stop the sale by making an Order to Show Cause. The Order to Show Cause to stop the sale should ask the Court to stay the sale until the Judge makes a decision. This legal mechanism is particularly powerful when combined with an appeal strategy.
Combining Appeals with Protective Orders
When pursuing an appeal, homeowners can simultaneously seek protection through multiple legal pathways. The borrower can, however, stop or at least delay the foreclosure sale by filing a notice of appeal with the appellate division and an OSC with the trial court. The OSC may request either a stay of the litigation under CPLR 22016 or notify the trial court of a specific stay of enforcement of the order for judgment of foreclosure of sale under CPLR 55197 pending appeal.
Understanding the difference between these protective measures is crucial. CPLR 5519 authorizes a stay enforcement of the order being appealed. In contrast a stay under CPLR 2201 stays the entire case. When filing a Foreclosure Motion, strategic consideration of which type of stay to seek can significantly impact the outcome.
Automatic Stays Under CPLR 5519
In certain circumstances, New York law provides automatic protection for homeowners who file appeals. Stays of enforcement under CPLR 5519 are generally granted automatically upon service of a notice of appeal when the order appealed from directs the sale of a mortgaged property and payment of any deficiency. This automatic protection can provide immediate relief while the appeal process moves forward.
CPLR 5519 provides the mechanism to stay enforcement of an order under appeal until the appeal itself is decided. CPLR 5519 provides the mechanism to stay enforcement of an order under appeal until the appeal itself is decided. Sections (a) and (b) of CPLR 5519 provide automatic stays of enforcement, while subsection (c) authorizes the Court to use its discretion in granting a stay of enforcement by motion.
Emergency Relief: When Time is Running Out
For cases where the foreclosure sale is imminent, emergency procedures are available. An “Emergency Order to Show Cause for a Stay Pending Appeal” is an expedited motion which seeks to stop the foreclosure action and usually a foreclosure sale pending appeal. This emergency relief can be crucial when homeowners discover viable grounds for appeal just days before their scheduled foreclosure sale.
Grounds for Protective Orders
You can ask the Court to stop the sale by making an Order to Show Cause if you have a good reason, like: You are in the middle of refinancing your home with a loan that will cover the mortgage and other costs ยท You have found a buyer for your home and have an offer for a sale Additionally, legal defenses such as standing issues, procedural violations, or fraud can provide grounds for protective relief.
Generally, “the court’s invocation of its equity powers to deny the remedy of foreclosure and sale or to set aside its effects is limited to cases wherein there is clear and convincing evidence of fraud, exploitive overreaching or unconscionable conduct. However, even without these extreme circumstances, procedural and legal defenses can provide valid grounds for protective orders.
The Appeal Process and Strategic Considerations
Appeals are useful instruments for defendants in foreclosure litigation, when the defendant believes a decision of the New York State Supreme Court, where most foreclosure cases are litigated, was wrongly decided. An appeal starts with the filing of a Notice of Appeal, which references the Order from which the appeal is taken and the basis of the appeal.
Timing is critical in this process. Often, as a matter of strategy, the Notice of Appeal to the Appellate Division, and a motion for reargument to the Supreme Court, are filed at the same time since both are due within 30 days of the notice of entry of the order or decision from which there is the appeal.
Professional Legal Guidance: The Key to Success
The complexity of foreclosure appeals and protective orders requires experienced legal representation. With the protections afforded by New York foreclosure law, an experienced Long Island foreclosure attorney should be able to recognize when it may be beneficial to file an OSC in an attempt to prevent the sale of your home.
At the Law Offices of Ronald D. Weiss, P.C., located in Melville, New York, homeowners receive comprehensive foreclosure defense services. The Law Offices of Ronald D. Weiss, PC have been supplying expert bankruptcy, foreclosure defense, and debt negotiation services since 1993. We offer practical, compassionate solutions customized to each client’s financial situation. With over 30 legal professionals on our team, we have the resources to handle your important legal matter. Six (6) veteran attorneys with many years of combined legal experience.
Alternative Protection: Bankruptcy Relief
In some cases, bankruptcy can provide additional protection. Filing for Chapter 7 of Chapter 13 individual bankruptcy in federal court is also a means by which the borrower can stay enforcement of the judgment for foreclosure and sale. While an OSC may be filed with an affirmation or affidavit informing the court of the borrower’s intent to file a bankruptcy petition in federal court and requesting relief under CPLR 2201, the automatic stay of litigation applicable in most bankruptcy matters only takes effect after the bankruptcy petition is filed.
Conclusion: Don’t Give Up Hope
Whether its asking the court to vacate default and essentially reset the action, filing a notice of appeal and request to stay enforcement of the judgment, or submitting a petition to bankruptcy court, there are options available to defaulting borrowers even after entry of a judgment of foreclosure and sale. Whether its asking the court to vacate default and essentially reset the action, filing a notice of appeal and request to stay enforcement of the judgment, or submitting a petition to bankruptcy court, there are options available to defaulting borrowers even after entry of a judgment of foreclosure and sale.
The key to successfully preventing a foreclosure sale while pursuing an appeal lies in understanding the various protective mechanisms available under New York law and acting quickly with proper legal representation. Getting initial information and advice is free. Our approach is personalized to your specific situation and goals. Don’t let the complexity of the legal system prevent you from exploring every available option to save your home.