I want to make a quick observation prior to responding to the substance of your query. Mr. Roper some time ago posted a caution against Forum participants sharing identifying details about their foreclosure situation.
You are posting under the name "Steve Anderson". Perhaps this is merely a screen name or handle. If this is actually your name, I would highly recommend that you adopt some other handle which is less identifying.
I say this, in part, because discussing a foreclosure in which the defendant is executor of the estate of a deceased borrower already significantly narrows the universe as to your identity and other details which you have included may uniquely identify you to the plaintiff's foreclosure mill law firm.
On the bright side, it is most common for foreclosure mills to cut corners and devote minimal time to each case. Therefore it is unlikely that the plaintiff will search for information about you. But it is probably better to take Mr. Roper's caution to heart and to take care to avoid posting unique identifying details.
Without seeing the pleadings, the motion or the plaintiff's response, I am going to hazard a guess about what is going on and this reflects some concern about just how treacherous it can be for a pro se litigant to defend against a judicial foreclosure.
Those who use sites like the Forum to school themselves about the issues, the law and viable defenses very often miss some subtle, but really significant issues and aspects, which might be immediately and intuitively obvious to a bright and reasonably experienced attorney.
Your post mentions "I am the executor of my mother's estate, which this home is a part of". Your post also states that "Everyone knows I reside at the premises under foreclosure as even some documents he submitted from me and others say that".
This information is suggestive that you might have at least three separate and distinct interests in the subject property, any of which would explain WHY you might be named and served.
First, if your mother expressly bequeathed to you all or a portion of her fee interest in the subject property, you may have an individual ownership interest in the property. Whether this is the case probably depends upon both some specifics of probate law in your jurisdiction, as well as the express provisions of the Will admitted into probate.
Second, to the extent that you occupy and are in actual possession of the property, you have some interests and rights as an occupant. Whether your occupancy is as a tenant under a lease, a tenant at will or by sufferance, as a guest, as a person in hostile adverse possession or as an owner in occupancy would seem to depend upon a variety of facts not mentioned within your post. It is not uncommon for plaintiffs in a foreclosure to expressly name those in actual possession of a subject property, even if they lack an ownership interest. By naming and serving these persons, the plaintiff obtains jurisdiction over these people and forces them to present any defenses or counterclaims to the foreclosure suit, obtaining a single adjudication and determination of the suit and making any judicial order of foreclosure binding on these.
Third, as executor of your mother's estate, the probate laws may vest in you the rights to the subject property during the pendency of the probate. It is not altogether unusual for probate laws to vest the assets of the estate in an executor or administrator and to make these assets subject to various other claims against the estate, whether secured or unsecured. Usually, those who can establish that they were owed money by a decedent can make claims against an estate and those claims which are properly established must be paid from amongst estate assets.
For example, suppose that your mother had owned the house free and clear of a mortgage and that the house was valued at $250,000. Further suppose that this was the ONLY asset of the estate. Now suppose that your mother had $25,000 in outstanding credit card debt, as well as $25,000 in unpaid medical expenses at her death.
Finally, let us suppose that the creditors to whom the $25,000 in credit card debt as well as the $25,000 in medical expenses was properly established through a valid, lawful claim, properly allowed by the executor or administrator and approved by the court (where necessary).
The Will might have vested ownership of the subject property in YOU and, perhaps, one sibling.
But this bequest would usually be subject to the payment of just debts, including the claims mentioned above. To the extent that there existed $50,000 in valid unpaid claims against the estate, despite the fact that the Will made a specific bequest to you and the sibling, the executor or administrator would probably have to sell the subject property to pay these valid claims.
In some places, the subject property would be said to be owned by the heirs, but that this ownership would be subject to a form of trust during the pendency of the estate, where the subject property would be held and managed by the executor or administrator and would be subject to sale to pay the just debts as reflected by the valid approved claims.
Here, things can get a little complicated, and we see the emergence of some differing concepts discussed in other threads. These are the concepts of standing and capacity.
As an heir and beneficiary of a specific bequest of the subject property, you would seem to clearly have an economic interest and be subject to injury in respect of the suit. You would seem to be a necessary and possibly even an indispensable party to the suit as an heir. So you would probably be named in the suit as an heir.
But separately, as executor, you are seemingly managing this property as a fiduciary for the benefit of not only the heirs, but also the other persons interested in the estate, including creditors.
You need to realize and recognize that you are wearing three distinct hats in this matter and you ignore this distinction at your peril.
The plaintiff probably also named you in the suit as executor of your mother's estate. Your role as executor is a separate capacity than your role as heir.
If you filed your Motion To Dismiss (MTD) and failed to make this motion as executor, then you may have made the motion in an incorrect capacity. Moreover, if an answer was due and you failed to answer in each capacity, you may be in default in that capacity.
That is, if you answer only as Steve Anderson (implicitly in an individual capacity), you may already be in default in your role as Steve Anderson, as executor of the Mother Anderson Estate.
This may possibly still be corrected by making another separate filing in a timely way, possibly a filing accompanied by the NY equivalent of a Federal Rule 6(b)(2) motion.
There is yet another problem for which you need to be aware. In many jurisdictions, while a person may represent themselves pro se, they are not permitted to represent another person or entity pro se. For example, in almost all jurisdictions, an officer of a corporation who is not an attorney cannot represent a corporation in court. A corporation must be represented by a lawyer. Pro se representation of a corporation, even a very small corporation with a single shareholder is not permitted.
Similarly, a non-attorney who is a partner would usually not be permitted to represent a partnership in court. The partner could represent himself or herself. But each other partner would also need to appear individually pro se OR the partnership would need to employ an attorney.
The law is a little more muddled and mixed as to whether a trustee of a trust or the personal representative of an estate is entitled to represent the trust or the estate pro se. I have seen some cases going both ways in a couple of jurisdictions, but have never researched the law about this in New York State.
If you are representing yourself pro se as an heir, you might need to employ an attorney to represent yourself as executor of the estate. This can be problematic if the estate lacks funds to pay the attorney.
It seems that it is probably better to at least file an answer or a MTD as executor, but if this is done without employing an attorney, you need to be aware that the answer or the MTD might be stricken on the plaintiff's motion due to the UPL issue. Depending upon the UPL laws in NY and the case law on self-representation of executors and administrators, you might also have some other exposure.
It seems to me that of the allegations you assert have been made by the plaintiff, at least two of these would seem likely to be TRUE and probably can be admitted, though I would definitely encourage you to research the matter and to consult an attorney.
It seems to me that based upon the facts you describe, you would probably not be a "borrower" under RPAPL or otherwise. You didn't borrow any money. This is certainly true individually. And it seems more than plausible that the estate isn't a borrower either. Your Mother, the decedent, was the borrower. The estate is now responsible for her debts, but ONLY to the extent of the estate's assets. The estate is a debtor in respect of properly established claims. But the estate didn't borrow anything.
(NOTE: The above interpretation is based upon my common sense understanding of the meaning of these terms and is NOT based upon ANY research as to New York laws. YOU NEED TO READ THE STATUTE AND THE ASSOCIATED CASES. Perhaps Angelo or another NY litigant can give you some additional insight.)
Neither does it seem to me that the estate is a mortgagor. Again, it was your Mother who probably executed the mortgage. The heirs and the estate acquired its interest in the subject property subject to the mortgage. But an ordinary common sense reading would seem to me to preclude a finding that the estate or the heirs are mortgagors.
To the extent that your defense employs particular defenses available to borrowers or to mortgagors, this seems to me to be rather thin.
(Again, I have NOT researched this issue as it regards New York state law. I am simply giving you an informed lay opinion. In my view, if you took the dictionary definition of mortgagor and a common sense understanding of the meaning of that word, I can hardly see how you, the estate or the other heirs could be found to be mortgagors.)
As to whether you are an "owner", I would think you would need to look to the express provisions of the probate laws, the cases interpreting those laws and the language of the Will.
IF, for example, the property was bequeathed to your nieces and nephews, but NOT YOU, then I would think that you were NOT an owner in your individual capacity as an heir. If you were bequeath an interest in this property by the Will, I would think that you probably are an owner, individually, but subject to the ownership of the estate during the pendency of the probate proceeding. You then might very well be an owner of the subject property as executor.
You seem to be trying to school yourself up on the law in respect of both probate and foreclosure. This seems to me to be a bridge too far for most litigants.
Finally, I would encourage you to heed Mr. Roper's suggestion that net borrower equity in the subject property ought to be the primary guide in selecting an overall strategy.
If there exists any equity that could be salvaged by a workout or a sale of the subject property, you probably have a fiduciary duty to the other heirs to sell the property, realize that value and distribute it. To the extent that the outstanding debt exceeds the value of the property and this property has a net negative equity, sale (other than a short sale or deed in lieu) seems unlikely.
If the property is under water, I certainly understand your personal interest in drawing the matter out to continue your occupancy. However, IF the estate has any other assets, you also need to take care since it is possible that a creditor might be able to reach other estate assets should there be an established secured claim and a deficiency. (Again, I have NOT researched NY law as to secured claims in probate. In some jurisdictions, a secured claimant must make an irrevocable election as to whether to pursue the subject property under the security interest or the debt under the note.)
Realize that while it might be in your personal interest as an individual to draw out the foreclosure, if this results in a larger debt and either the extinguishment of actual equity in the property OR the dissipation of other estate assets, YOU could be held responsible for breach of fiduciary duty by your nieces and nephews for any loss of value to which they were rightfully entitled. YOU OWE A DUTY TO THE OTHER HEIRS AND OUGHT NOT BE VIEWING THIS MATTER SOLELY THROUGH THE PRISM OF YOUR OWN INDIVIDUAL SELF-INTEREST.