I asked the architect, who was seeking pro bono representation for his foreclosure case (the 2008 recession had severely affected his business), whether he had answered the summons and complaint. He asked what I meant. I referred to the summons, which stated that he must serve a copy of his answer within a certain amount of time, that failure to do so would result in a default judgment, which would result in the loss of the home. He said “what do you mean by serve an answer?” I explained that an answer was a written response to the complaint. He said, “I have no idea how to do that, but I did call the attorney whose name is on the summons.” And what did the attorney say? That he should find a lawyer. By the time he found the pro bono project where I worked, the time to answer had expired.
I have had a variation of this conversation with scores of foreclosure defendants over the last seven and a half years. The essence of each was this question from the client: “what do you mean by answer the complaint?” The story was almost always the same: the defendant had no idea how to prepare an answer, could not afford a lawyer, and did not have timely access to free legal assistance. The defendants’ solutions were also consistent: they usually called the plaintiff’s lawyer or their mortgage servicer. The outcome of those calls was never a timely answer. I give the example of the architect because it is not just the uneducated or unsophisticated who are stymied by the notion of preparing a legal pleading.
Nationally, the vast majority of individual defendants sued for consumer debt fail to answer the complaint. It is widely recognized that most individuals (and certainly individuals in economic distress) cannot afford to hire private lawyers and do not have free legal services available to them. When a response to the summons requires preparing and serving a pleading, as it does in a foreclosure action, the unrepresented defendant will almost certainly default.
Notwithstanding this reality, recent decisions from the Appellate Division, Second Department, have imposed a strict standard for what constitutes a reasonable excuse sufficient to vacate a homeowner’s default. Not only does the court routinely affirm lower court orders denying motions to vacate defaults, it routinely reverses orders granting the motions—13 to date. Research shows that the Second Department has found only one excuse for a homeowner’s default reasonable—”law office failure”—and only in one instance. Deutsche Bank Nat’l Trust Co. v. Luden, 91 A.D.3 701 (2d Dept. 2012).
This is a troubling trend given that the Second Department oversees four of the counties that are hardest hit with foreclosures—Brooklyn, Nassau, Suffolk, and Rockland—and it by far decides the largest volume of foreclosure appeals.
The trend is also at odds with the state’s efforts to prevent foreclosures. When the foreclosure crisis hit in 2008, the default rate had historically been at 90 percent. Concerned about this high rate in light of the sharp increase in foreclosure filings that year, the Office of Court Administration implemented a pilot project in Queens providing for settlement conferences in foreclosure actions involving subprime loans; the conferences were designed to get homeowners to participate in the foreclosure case, with the goal of avoiding foreclosures where possible. As a result of legislative action, by 2009 these settlement conferences were mandated in all residential foreclosure actions.
The mandatory settlement conferences turned the default rate upside down: as of 2010, only 20 percent of homeowners failed to appear for their settlement conferences. Why do the vast majority of defendants default in answering the complaint but not in appearing at the settlement conference? The answer is obvious. The court sends the defendant a notice of the settlement conference, and the defendant has only to show up at the date, time and place given. Most people know how to show up for an appointment. No lay person has a clue as to how to prepare a legal pleading.
The disparity in the default rate between serving a written legal pleading (very high) and appearing at conferences (very low) reveals a systemic problem. Clearly, most defendants want to try to save their homes. Lack of access to justice is a recognized problem threatening the integrity of the legal system. The high rate, nationally, of consumer defendant defaults shows that the problem is not one of individual moral failing. But rather than recognize that defaults in foreclosure cases are part of a systemic problem, warranting the application of a liberal standard for vacating them, the Second Department so narrowly defines what constitutes a “reasonable excuse” sufficient to vacate the default that virtually no homeowner can satisfy the test.
An illustrative example of the court’s approach is Chase Home Finance v. Minott, 115 A.D.3d 634 (2d Dep’t 2014). There the court found unreasonable the homeowner’s excuse that she did not know she needed to answer the complaint and relied on the advice of her real estate broker instead of consulting an attorney. “This was especially so,” the court held, “in view of the fact that the summons … contained the specific language mandated by RPAPL 1320 warning her to ‘speak to an attorney or go to court,’ and that she ‘must respond by serving a copy of her answer’ or risk the loss of her home.”
The Minott decision is based on assumptions that do not reflect today’s reality: that the homeowner had timely access to an attorney; that she understood what it means to “respond by serving a copy of your answer;” that she had the ability to prepare an answer.
Moreover, it was a cruel irony to use the summons’ special warnings, required by legislation meant to protect homeowners, as a basis for denying the homeowner’s motion. And this was not an isolated ruling; since Minott the court has repeatedly held that the special notice on the foreclosure summons advising homeowners of the need to answer the complaint prevail over any excuse a homeowner may offer for not having answered. HSBC Bank USA v. Lafazan,115 A.D.3d 647 (2d Dep’t 2014); Emigrant Bank v. Wiseman, 127 A.D.3d 1013 (2d Dep’t 2015); Morgan Stanley Mtge. Loan Trust v. Waldman, 131 A.D.3d 1140 (2d Dep’t 2015); HSBC Bank USA v. Rotimi, 121 A.D.3d 855 (2d Dep’t 2014). But the high level of consumer and foreclosure defendant defaults shows that warnings on summonses are not effective in getting ordinary people to respond to lawsuits.
The court’s refusal to vacate defaults is not an academic issue. Even though most homeowners do not answer, there are ample grounds for defense. Many mortgages in foreclosure were originated during the subprime lending boom during which deceptive and predatory practices were common. Many foreclosure plaintiffs are in violation of regulations that were promulgated in the wake of the financial crisis, including prohibitions on commencing foreclosure actions without first attempting to work out some sort of loss mitigation.
Another ripe area of defense is the standing of the plaintiff to sue: the sloppy securitization practices that took place during the lending frenzy and the “robo-signing” of mortgage assignments give rise to legitimate questions as to who actually owns the mortgage debt. Of course, not only do most homeowners lack any understanding of how to prepare a written answer, they almost certainly do not understand, and would not be able to articulate, the complex legal defenses they may have to the action.
Potential defenses, however, are not discussed in the Second Department decisions on vacating defaults because these decisions consistently reject homeowners’ excuses for not answering, ending the analysis. Were the defenses discussed, they would tell, among other things, the story of the deception and predatory behavior underlying this foreclosure crisis.
But most homeowners in the Second Department do not get to tell their story. While the expectation articulated in the case law is that homeowners should respond to the summons because the summons says they should, the truth is that the ordinary person has no idea how to answer a complaint, has no idea how to articulate legal defenses, and does not have access to affordable legal services.
In setting an impossibly high bar for vacating a default, the Second Department decisions to date fail to recognize the real challenges facing foreclosure defendants and are at odds with the remedial foreclosure prevention legislation expressly intended to avoid foreclosures where possible.