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What to do when served with a supplemental Summons

2/5/2018

2 Comments

 
It is often enough when a homeowner is served with a supplemental summons and amended complaint which can occur anytime after the initial summons and complaint were served on the homeowner.  Typically, the foreclosing attorney will seek to file a supplemental summons and amended complaint when there is a need to change or add to the allegations in the the complaint-for example, another defendant is being added or an additional cause of action seeking to correct the mortgage recording information or amend the legal description. The serving of the supplemental summons and amended complaint will permit the homeowner to file an answer which can be important if the homeowner previously defaulted in responding to the initial summons and complaint. 

There is a statutory rule (CPLR Section 306[b]) that requires that a defendant be served within 120 days of the filing of the summons and complaint. Thus, CPLR 306(b) must be complied with if the foreclosing attorney is seeking to add another Defendant in the action; however, if the foreclosing attorney can show good cause for amending the complaint to include an additional defendant, the court upon motion may grant permission to serve such party after 120 days.  It is vital for a homeowner to consult immediately with an experienced foreclosing attorney before unwittingly defaulting in answering a foreclosure complaint or an amended complaint which will result in the homeowner waiving important defenses that may prevent the bank from foreclosing. 
2 Comments
Teri
6/20/2021 12:07:33 pm

I am writing because my grandfather was recently hand-delivered an envelope (presumably from some type of courier) an apparent supplemental summons from a NY attorney. The 65+ page document claims that he is at risk of losing his home because of a $60k mortgage debt from some distant relative he has never even heard of (who had no children or other living immediate relatives). The document stated ancestry including his direct lineage to show how he is related to this individual. He certainly cannot be held responsible for this debt of someone whom he certainly never co-signed for, right? Why is he (and five other living distant relatives) receiving this notice? Does he ignore it? Is this a scam?

Reply
Arnold M. Bottalico, Esq.
6/22/2021 12:16:56 pm

Greetings Teri,

In this day and age there are a lot of scams, but I wouldn't know if this is the case here. If a summons was served than it must be taken seriously and a simple court check can confirm if the lawsuit is real. Your grandfather appears to be a relative of a decedent/mortgagor who has real property in the state of NY. Your grandfather and other heirs may have a claim to the property which may have significant equity after the just debts are paid from any estate proceeding and or sale of the property. If the property is sold in a foreclosure auction, the property could sell for much less than an estate sale. A public administrator may be appointed, but not necessarily. There are way too many issues to address in this reply; hence, I recommend that you contact an attorney or call our office to discuss the matter in greater detail.

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    Arnold M. Bottalico is an experienced Long Island, NY foreclosure attorney with over 25 years of experience, and he welcomes your questions and comments.

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