Summons and Complaint
(Foreclosure) (NY)

Summary

This summons and complaint template can be used to initiate an action to foreclose on real property in New York. It is intended as a general drafting aid and will require modification according to the particular circumstances and the intentions of the parties. This template includes practical guidance and drafting notes. Once a mortgage lender in New York decides to pursue foreclosure and completes all necessary, pre-foreclosure action, the next step is preparation of the foreclosure summons and complaint. The foreclosure complaint must: • Establish standing. The foreclosure complaint must establish that the plaintiff has standing at the time the foreclosure is filed. Standing exists where the plaintiff is the original holder of the note, is an assignee of the underlying note, or has been delegated authority to prosecute a foreclosure action (such as in the case of a special servicer). • Identify any action to recover any part of the mortgage debt. Pursuant to N.Y. Real Prop. Acts. Law § 1301(2), the foreclosure complaint should state "whether any other action has been brought to recover any part of the mortgage debt, and, if so, whether any part has been collected." • Preserve the right to seek deficiency. To preserve the lender's right to seek a deficiency judgment following foreclosure, the complaint should include a prayer for recovery of a deficiency and name any parties (including unconditional guarantors) who may be liable for any such deficiency. There is no requirement to attach copies of the loan documents to a foreclosure complaint. However, it is good practice to do so, particularly because these written instruments constitute documentary evidence that a New York court can consider on a motion to dismiss. In New York, a foreclosure complaint does not need to be verified. However, if it is verified, the answer will need to be verified as well. The summons and complaint must be served on all defendants to the action. If there are specific provisions in the loan documents governing service of process, service in accordance with those provisions is valid. See Lease Fin. Grp., LLC v. Moore, 984 N.Y.S.2d 632 (App. Term 2014), ("personal jurisdiction was obtained over defendant, service of process having been made in accordance with the parties' [agreement]"); Nat'l Equip. Rental, Ltd. v. Dec-Wood Corp., 51 Misc. 2d 999, 1000, 274 N.Y.S.2d 280 (2d Dep't 1966) (where defendants were served with process in accordance a written agreement, "[s]uch service was sufficient and effectively conferred jurisdiction over the defendants"). Otherwise, all service should be accomplished as set forth in the C.P.L.R. See N.Y. C.P.L.R. 306–318. Within 10 days of service of the summons and complaint in a case involving residential real property as defined in N.Y. Real Prop. Acts. Law § 1305(a). N.Y. Real Prop. Acts. Law § 1303 requires separate notice to any tenant of a dwelling unit regarding the tenant's rights to remain after the foreclosure is completed. For more information about foreclosure of real property in New York, see Commercial Mortgage Foreclosure (NY), Commercial Foreclosure Checklist (NY), and Residential Foreclosure Alternatives (NY). See also Bergman on New York Mortgage Foreclosures §§ 16.01 through 16.07.