Very often, somebody’s house is in danger of foreclosure based on a lawsuit that has been around for a long time. I often see cases dating back to 2009 or 2010, for example. The homeowners never appeared in the foreclosure action against them. They never filed or served an Answer to the bank’s Summons and Complaint and never opposed any of the bank’s Motions seeking foreclosure. Now the bank has scheduled an auction to sell the property, and the homeowners are scared of losing their home.
Can anything be done? When is it too late to stop foreclosure? Can a lawyer stop the foreclosure?
Yes. Here’s how: A lawyer can file an Order to Show Cause (which is a fancy way of saying an Emergency Motion) to “stay” or stop the foreclosure auction. In the Order to Show Cause, your attorney would specifically ask for a stay of the auction.
The Order to Show Cause would usually be filed at the county Supreme Court, such as Suffolk or Nassau or Queens, before the auction takes place. The Order to Show Cause could be heard by the judge assigned to the foreclosure lawsuit. Or, if that judge is not available the day of the Order to Show Cause, the Order to Show Cause would be heard by the judge available to hear the motion that day, the judge assigned to hear the motion by the court administration that day.
If the judge signs the Order to Show Cause and does not cross out the stay from the Order to Show Cause, you have successfully stopped the foreclosure auction using an Order to Show Cause – at least temporarily. The stay would at least be for a couple of weeks, and if the auction was only a few days away, it means that the bank must cancel the sale for now. Your lawyer should fax or email a copy of the signed order to Show Cause to the bank’s attorneys. The bank’s attorneys should then notify the referee (who is the auctioneer) to stopthe auction of your home for now.
The Emergency Motion or “OSC” will then be submitted to the judge actually assigned to the case for final review a few weeks later. If that judge so decides, the stay may become more permanent. Or, that judge could even dismiss the entire foreclosure lawsuit based upon the Order to Show Cause which your attorney files. If that happens, your attorney has saved your house from foreclosure for much longer than a merely temporary stay. You are now once again out of foreclosure.
I will discuss what the contents of an Order to Show Cause probably should be in order to provide foreclosure help in a further blog.