An Order to Show Cause is an emergency motion filed by an attorney. In the context of foreclosure lawsuits, it usually is to stop foreclosure auction. It is a great way to provide foreclosure help.
An emergency motion is needed because the homeowner has not appeared in the foreclosure lawsuit previously. For example, the homeowner probably did not fight the Summons and Complaint with an Answer at the commencement of the lawsuit and probably did not oppose the bank’s Motions in the lawsuit over a period of several years. Now a sale seems imminent.
How long do you have in your house? Can you save your house from foreclosure now?
Since the borrower or homeowner did not fight the lawsuit over the past several years, the homeowner has “waived” or forfeited defenses which were actually available and probably “winning” if used earlier. That is why it is so important to hire a qualified attorney to fight foreclosure as soon as possible. It actually saves money and is cost effective. You don’t want to “DYI” this, in my professional opinion.
In any case, what’s done is done. You want to stop foreclosure at the last minute now, and the way to do that is probably with an Order to Show Cause.
And while you forfeited many of your defenses by not fighting the foreclosure lawsuit initially, there are some defenses you do not forfeit by not fighting the foreclosure lawsuit. For example: Lack of Jurisdiction. If the bank never served you properly with the Summons and Complaint when the lawsuit started, then you can stop the sale and even get the case dismissed on that basis – using an Order to Show Cause or emergency motion. You just need to prove that the bank never served you properly or that the bank disobeyed the law when it attempted to serve you. (You also must never have appeared in the lawsuit previously – because that would be how you forfeit the defense based on lack of jurisdiction. Once you appear in the lawsuit, you are deemed to accept the court’s jurisdiction over you even without proper service of Summons and Complaint, for example.)
Or, if the bank has committed fraud in the foreclosure lawsuit, you can also stop the auction with an Order to Show Cause proving the fraud. So you should hire an attorney to evaluate whether the fraud warrants the judge staying or stopping the foreclosure auction. Not every fraud warrants stoppingthe auction or throwing out the foreclosure lawsuit.
Or, you can stop the auction with an Order to Show Cause if the bank obtained a judgment of foreclosure when a valid Notice of Pendency (also called a “lis pendens”) was not filed with the county clerk at least 20 days before the judge issued a judgment of foreclosure and sale. RPAPL §1331. A lis pendens only lasts for 3 years, then it must be re-filed or renewed. Banks often forget to renew a lis pendens, especially since loans get assigned and transferred to other banks and companies, and since banks change law firms during the foreclosure lawsuit.
These are just a few examples of how you can have your lawyer stop foreclosure just before an auction. I hope it may provide foreclosure help Long Island and New York homeowners can use to save their homes.