Need Answers For Foreclosure In Ny-plaintiff Motioned For Dismissal

Youngone

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Oct 6, 2015
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Hi im new and just have a couple of questions. My parents home which we still live in has been in the foreclosure process since 2012. My father stopped paying because he decided the house was a burden since me and my siblings range from the ages of 25-33.

Anyway to fast forward, we are at the last step where there is a trial before auction( i dont know what its called but its the step to decide whether the house will be put up for auction). Well, since January every trial has been adjourned. For the up coming trial, the plaintiff has motioned for dismissal.

What does that mean at this point? Is the home gonna go up for auction or do I have a lot of time left before I have to start looking for an apartment?
 
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Moe Bedard

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It looks like you have some time since they seem to be in no real hurry with the plaintiff who has motioned for dismissal. But this can change at anytime and no one knows really when they will actually foreclose until they do. If I were you, I would look for an apartment now and get ready to pull the rental trigger at a moment's notice.

It could be in 2-3 months or 6 or 12, you just never know. I have seen some people who stayed in their homes for 5 years with no payment.
 

Youngone

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It looks like you have some time since they seem to be in no real hurry with the plaintiff who has motioned for dismissal. But this can change at anytime and no one knows really when they will actually foreclose until they do. If I were you, I would look for an apartment now and get ready to pull the rental trigger at a moment's notice.

It could be in 2-3 months or 6 or 12, you just never know. I have seen some people who stayed in their homes for 5 years with no payment.
The plaintiff is asking for dismissal with prejudice. Does that make a difference with time?
 

Moe Bedard

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Not really since they just need to refile the right paperwork.

It means that it is dismissed permanently. A case dismissed with prejudice is over and done with, once and for all, and can't be brought back to court. A case dismissed without prejudice means the opposite.

Many foreclosure dismissals result from failure to comply with procedural requirements, or from defects in the way the complaint was written. . In 2004, the Florida Supreme Court ruled that in a foreclosure proceeding, each time you default on your obligation under the note and mortgage, the mortgage holder has a new right to sue you.

If your foreclosure case is dismissed with prejudice for a procedural or technical matter, it is likely that it can be refiled as long as the mortgage holder sues using a different default date.
 

Youngone

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Not really since they just need to refile the right paperwork.

It means that it is dismissed permanently. A case dismissed with prejudice is over and done with, once and for all, and can't be brought back to court. A case dismissed without prejudice means the opposite.

Many foreclosure dismissals result from failure to comply with procedural requirements, or from defects in the way the complaint was written. . In 2004, the Florida Supreme Court ruled that in a foreclosure proceeding, each time you default on your obligation under the note and mortgage, the mortgage holder has a new right to sue you.

If your foreclosure case is dismissed with prejudice for a procedural or technical matter, it is likely that it can be refiled as long as the mortgage holder sues using a different default date.
so pretty much the plaintiff is going to sue under a different circumstance.
hopefully I make it to 2016
 

I'll Spin the Wheel Pat!

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Mar 25, 2015
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so if a case dismissed with prejudice is over and done with, once and for all, and then the the plaintiff has to re-file, doesn't that put Youngone at the end of the line again? Serve papers again, give time for settlement conferences and all that? That could mean another 3 years at the rate things are moving in NY.
 

Youngone

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so if a case dismissed with prejudice is over and done with, once and for all, and then the the plaintiff has to re-file, doesn't that put Youngone at the end of the line again? Serve papers again, give time for settlement conferences and all that? That could mean another 3 years at the rate things are moving in NY.
Im curious about this now since the house isnt quite ok for sale, theres alot of work to be done. Theres a hole in the backyard where the pool used to be, the fencing is messed up, one of the bathrooms doesnt work as in the sink or the toilet and the ceiling to the laundry room leaks. There was also an extra room built in the garage. I wonder is this has an affect on anything.
 

Moe Bedard

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so if a case dismissed with prejudice is over and done with, once and for all, and then the the plaintiff has to re-file, doesn't that put Youngone at the end of the line again? Serve papers again, give time for settlement conferences and all that? That could mean another 3 years at the rate things are moving in NY.
Yes, I believe you are correct.
 

Moe Bedard

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Im curious about this now since the house isnt quite ok for sale, theres alot of work to be done. Theres a hole in the backyard where the pool used to be, the fencing is messed up, one of the bathrooms doesnt work as in the sink or the toilet and the ceiling to the laundry room leaks. There was also an extra room built in the garage. I wonder is this has an affect on anything.
No it doesn't in regards to the foreclosure law and time frames.
 

PatZZ

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Dismissal with prejudice is what we all would like to see. Make sure that the dismissal w/prejudice applied to your parents as opposed to dismissing claims against parties that have no interest in the proceedings - such as John Does, or even one of your parents if he/she is not on the loan. MANY people get confused by this.

For them to dismiss the entire case at this stage smells of some kind of trouble with the bank proving their case. It's impossible for the bank to create a new default date if no additional payments are made & accepted after the original default date. Double check the NY court rules to be certain what must occur in order for the bank to refile a case that was dismissed w/prejudice. Get a free consultation with an attorney if necessary. You MUST know the answer to this question - no maybes or perhaps or I think. Get a solid answer.

A true dismissal w/prejudice means you have a LONG time in the home. The bank would have to start all over again.

All the best.
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Youngone

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The court date for the dismissal keeps getting postponed. Right now its postponed until March.
Crazy
 

PatZZ

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The court date for the dismissal keeps getting postponed. Right now its postponed until March.
Crazy

Could be because plaintiff wants more time to beef up their case before a dismissal. They may figure that by March, they can get all their ducks in a row and won't need a dismissal. In my state, I'm fairly certain, we could not even calendar a motion date that far in advance. Every state has its nuances.
.
 

Youngone

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Could be because plaintiff wants more time to beef up their case before a dismissal. They may figure that by March, they can get all their ducks in a row and won't need a dismissal. In my state, I'm fairly certain, we could not even calendar a motion date that far in advance. Every state has its nuances.
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Maybe? Im not sure how these things work in NY. I just go with the flow.
I actually looked at a few similar cases in my town and there are quite a few cases being postponed until mid next year.
 

PatZZ

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Maybe? Im not sure how these things work in NY. I just go with the flow.
I actually looked at a few similar cases in my town and there are quite a few cases being postponed until mid next year.
You may want to study up because the foreclosure mills often play tricks and do things wrong that the court will ignore if the other side fails to speak up. The court is not on our side.
.
 

Youngone

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Does anyone know where I can view NY foreclosure cases online? Ecourts web supreme isnt working for me. All of a sudden, ecourts isnt displaying any supreme cases.