New York’s Lis Pendens Filing Rules Could Save Your Home: What Every Foreclosure Defendant Must Know in 2024
If you’re facing foreclosure in New York, understanding the state’s lis pendens notice requirements could be the difference between losing your home and having time to mount an effective defense. A notice of pendency, also known as lis pendens, is a provisional remedy available to litigants seeking a judgment that affects title to real property, and New York has specific rules that both protect homeowners and ensure proper legal procedures are followed.
What Is a Lis Pendens and Why Does It Matter?
A notice of pendency puts the world on constructive notice that an action has been commenced that may affect the title to the property and, accordingly, “a person whose conveyance or incumbrance is recorded after the filing of the notice is bound by all proceedings taken in the action after such filing to the same extent as a party”. In simpler terms, once a lis pendens is filed, it creates a cloud on your property’s title, making it difficult to sell or refinance until the foreclosure case is resolved.
The term lis pendens means “a suit pending” in Latin and is used to put the public on notice that there is a pending lawsuit over a particular real estate or a piece of land. For homeowners, this notice serves as both a warning and an opportunity – it alerts you that foreclosure proceedings are underway, but it also triggers important legal protections and deadlines.
New York’s Specific Requirements for Foreclosure Cases
New York law has unique requirements for lis pendens filings in foreclosure cases that differ from other types of property litigation. Section 1331 of the Real Property Actions and Proceedings Law (“RPAPL”) requires that “at least twenty days before a final judgment directing a sale [in a mortgage foreclosure action] is rendered, [plaintiff] shall file in the clerk’s office of each county where the mortgaged property is situated a notice of the pendency of the action, which shall specify, in addition to other particulars required by law, the date of the mortgage, the parties thereto and the time and place of recording”.
This requirement creates an important safeguard for homeowners. The lender must file this notice at least 20 days before obtaining a final judgment of sale, giving you additional time to respond or seek legal assistance. A notice of pendency shall state the names of the parties to the action, including the name and telephone number of the mortgage servicer for a foreclosing party involving a mortgage foreclosure of a one- to four-family residential property, the object of the action and a description of the property affected.
Duration and Extension Rules
A notice of pendency shall be effective for a period of three years from the date of filing. Before expiration of a period or extended period, the court, upon motion of the plaintiff and upon such notice as it may require, for good cause shown, may grant an extension for a like additional period. This three-year limitation is crucial for homeowners to understand, as it can affect the timeline of foreclosure proceedings.
However, New York has strict rules about extensions. Courts have noted that any request for an extension “must be [made] prior to the expiration of the prior notice” and that this is an “exacting rule” and a “notice of pendency that has expired without extension is a nullity”. If a lender fails to properly extend the notice, it could significantly impact their foreclosure case.
The “No Second Chance” Rule and Its Foreclosure Exception
New York generally follows what’s known as the “no second chance” rule for lis pendens filings. The New York Court of Appeals has held that “an expired or cancelled notice of pendency may not be refiled on the same cause of action or claim”. However, foreclosure cases have a special exception.
CPLR 6516(a), which was enacted to address this conundrum, allows the filing of successive notices of pendency to permit compliance with RPAPL 1331 “notwithstanding that a previously filed notice of pendency in such action or in a previous foreclosure action has expired pursuant to section 6513”. This means that in foreclosure cases, lenders can file new lis pendens notices even if previous ones have expired, but only to comply with the specific requirements of foreclosure law.
Public Record Requirements and Consumer Protection
Lis pendens filings become part of the public record, serving multiple purposes in consumer protection. Its purpose is to identify the parties to the lawsuit and to create a public record for anyone who searches the property in the County Clerk’s office. This transparency helps ensure that all interested parties are aware of pending litigation.
The filing requirements also include specific information that can help homeowners verify the legitimacy of the foreclosure action. When reviewing your Foreclosure Complaint, you should ensure that all required information is properly included in the lis pendens filing, as procedural errors can sometimes provide grounds for defense.
How The Law Offices of Ronald D. Weiss Can Help
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 locations serving Long Island, Brooklyn, Queens, Staten Island, Manhattan, the Bronx, and Westchester County, the firm is well-positioned to help homeowners throughout the New York area navigate complex foreclosure proceedings.
With over 30 legal professionals on our team, we have the resources to handle your important legal matter. The firm’s experience in foreclosure defense means they understand the intricacies of lis pendens requirements and how to use procedural requirements to protect homeowners’ rights.
What You Should Do If You Receive a Lis Pendens
If you’ve received a lis pendens notice, time is critical. If you are facing a foreclosure and have just received a lis pendens, you should contact a lawyer right away. Navigating the foreclosure process can pose significant legal challenges, potentially impacting your eligibility for obtaining a mortgage or homeowner’s insurance in the long term.
First, verify that the lis pendens contains all required information and was filed properly. Check that it includes the mortgage date, parties, and recording information as required by RPAPL § 1331. Any deficiencies in the filing could provide grounds for challenging the foreclosure action.
Second, understand your timeline. Remember that the lender must wait at least 20 days after filing the lis pendens before obtaining a final judgment of sale. Use this time wisely to explore your options, whether that’s loan modification, bankruptcy protection, or mounting a defense to the foreclosure.
Conclusion
New York’s lis pendens notice requirements in foreclosure cases provide important protections for homeowners, but only if you understand and act on them promptly. The state’s specific requirements for timing, content, and filing procedures create opportunities for defense, while the public record nature of these filings ensures transparency in the process.
If you’re facing foreclosure, don’t navigate these complex legal requirements alone. Getting initial information and advice is free. Our approach is personalized to your specific situation and goals. Understanding your rights under New York’s lis pendens laws could be the key to protecting your home and your financial future.