Bill Text: NY A06756 | 2009-2010 | General Assembly | Introduced
Bill Title: Provides foreclosure relief for fundamentally unaffordable mortgage loans, second mortgages and home equity loans.
Spectrum: Partisan Bill (Democrat 68-3)
Status: (Introduced - Dead) 2010-01-06 - referred to judiciary [A06756 Detail]
Download: New_York-2009-A06756-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 6756 2009-2010 Regular Sessions I N A S S E M B L Y March 12, 2009 ___________ Introduced by M. of A. BRENNAN, CLARK, JEFFRIES, ORTIZ, ROBINSON, ROSEN- THAL, DIAZ, PERRY, CAMARA, CAHILL, GALEF, J. RIVERA, P. RIVERA, SCAR- BOROUGH, BOYLAND, N. RIVERA, BRODSKY, LANCMAN, KAVANAGH, DINOWITZ, RAMOS, MAISEL, ESPAILLAT, HOOPER, ENGLEBRIGHT, SPANO -- Multi-Spon- sored by -- M. of A. ABBATE, ALESSI, ALFANO, ARROYO, AUBRY, BENEDETTO, BENJAMIN, BING, BROOK-KRASNY, COLTON, COOK, CYMBROWITZ, DelMONTE, DESTITO, EDDINGTON, FIELDS, GABRYSZAK, GLICK, GOTTFRIED, GREENE, HEASTIE, HOYT, HYER-SPENCER, JACOBS, JAFFEE, JOHN, KELLNER, KOON, LENTOL, LIFTON, V. LOPEZ, LUPARDO, MARKEY, McENENY, MILLMAN, NOLAN, PEOPLES, PERALTA, PHEFFER, POWELL, PRETLOW, QUINN, REILLY, SALADINO, SCHIMEL, SWEENEY, TITUS, WALKER, WEISENBERG, WRIGHT -- read once and referred to the Committee on Judiciary AN ACT to amend the real property actions and proceedings law, in relation to providing foreclosure relief; and providing for the repeal of such provisions upon expiration thereof THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Legislative intent. The legislature declares that a public 2 emergency exists in regards to real estate foreclosures due to the 3 extension of fundamentally unaffordable mortgage loans, fundamentally 4 unaffordable second mortgages and fundamentally unaffordable home equity 5 loans. Many such loans were extended under conditions which evince 6 deception, misrepresentation and fraud on the part of many lenders and 7 agents. This is particularly true of loans which qualify as subprime. 8 The presence of such subprime loans is distorting the New York state 9 real estate market. The problems associated with these subprime loans 10 are adversely affecting availability of capital, the demand for housing, 11 and the value of real estate. The financial problems created by such 12 subprime loans threaten to spill over into the rest of the real estate 13 market and the general economy. It is in the interest of New York state 14 to ensure the rights of all parties are protected and that all foreclo- EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD07381-01-9 A. 6756 2 1 sures which come into the New York courts during this period are care- 2 fully scrutinized. 3 S 2. The real property actions and proceedings law is amended by 4 adding a new section 1305 to read as follows: 5 S 1305. FORECLOSURES; COURT RELIEF. 1. VENUE. IN ANY ACTION TO FORE- 6 CLOSE A MORTGAGE UNDER THIS ARTICLE A MORTGAGOR NAMED IN SUCH ACTION MAY 7 APPLY FOR RELIEF IN STATE SUPREME COURT PURSUANT TO THIS SECTION. 8 2. TIMING OF YEAR-LONG MORATORIUM. IF A MORTGAGEE HAS OTHERWISE ESTAB- 9 LISHED ITS LEGAL RIGHT TO JUDGMENT ON AN ACTION TO FORECLOSE A MORTGAGE 10 PURSUANT TO THIS CHAPTER, THEN SUCH ACTION SHALL BE HELD IN ABEYANCE BY 11 THE COURT BEFORE WHICH SUCH ACTION IS PENDING. SUCH PERIOD OF TIME IS 12 INTENDED TO PERMIT THE PARTIES TO SETTLE THE ACTION OUTSIDE OF COURT AND 13 TO FORESTALL FORECLOSURE WITHIN THE CURRENT ECONOMIC CLIMATE. 14 3. PROCESS AND FEES. IF AN ACTION TO FORECLOSE A MORTGAGE HAS BEEN 15 COMMENCED PRIOR TO THE EFFECTIVE DATE OF THIS SECTION, A MORTGAGOR MAY 16 ASK THE COURT BEFORE WHICH SUCH ACTION IS COMMENCED TO HOLD SUCH ACTION 17 IN ABEYANCE PURSUANT TO SUBDIVISION TWO OF THIS SECTION. MOTIONS ON 18 NOTICE IN ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES MADE BY THE 19 MORTGAGOR SHALL BE DEEMED TO HAVE BEEN FILED BY A POOR PERSON PURSUANT 20 TO ARTICLE ELEVEN OF THE CIVIL PRACTICE LAW AND RULES AND ALL COURT FEES 21 OTHERWISE APPLICABLE TO SUCH ACTIONS AND PAYABLE BY A MORTGAGOR SHALL BE 22 WAIVED. IF A FORECLOSURE ACTION HAS NOT BEEN COMMENCED PRIOR TO THE 23 EFFECTIVE DATE OF THIS SECTION, A MORTGAGOR MUST COMMENCE AN ACTION IN 24 STATE SUPREME COURT BY FILING AND SERVING A SUMMONS PURSUANT TO ARTICLE 25 THREE OF THE CIVIL PRACTICE LAW AND RULES WITH A REQUEST FOR RELIEF 26 PURSUANT TO THE TERMS OF THIS SECTION. IN SUCH CASE, SUCH FILING SHALL 27 BE DEEMED TO HAVE BEEN FILED BY A POOR PERSON PURSUANT TO ARTICLE ELEVEN 28 OF THE CIVIL PRACTICE LAW AND RULES AND ALL FILING AND COURT FEES OTHER- 29 WISE APPLICABLE TO SUCH ACTIONS AND PAYABLE BY A MORTGAGOR IN THE FORM 30 OF INDEX AND MOTION FEES SHALL BE WAIVED. 31 4. PRIMA FACIE CASE. A MORTGAGOR MUST ESTABLISH A PRIMA FACIE CASE IN 32 THE MOTION OR PLEADING. AMENDMENTS TO SUCH MOTION OR PLEADING SHALL BE 33 LIBERALLY GRANTED. SUCH PLEADING MUST ESTABLISH THAT: 34 A. THE MORTGAGOR IS A NATURAL PERSON; AND 35 B. THE DEBT IS INCURRED BY THE MORTGAGOR PRIMARILY FOR PERSONAL, FAMI- 36 LY OR HOUSEHOLD PURPOSES; AND 37 C. THE LOAN IS SECURED BY A MORTGAGE, SECOND MORTGAGE OR HOME EQUITY 38 LOAN ON REAL PROPERTY WHICH IS IMPROVED WITH A RESIDENTIAL BUILDING 39 CONTAINING ONE TO SIX DWELLING UNITS; AND 40 D. THE REAL PROPERTY SUBJECT TO FORECLOSURE IS THE PRINCIPAL RESIDENCE 41 OF THE MORTGAGOR; AND 42 E. THE MORTGAGOR OWNS NO OTHER REAL PROPERTY; AND 43 F. THE REAL PROPERTY IS LOCATED IN THIS STATE; AND 44 G. THE MORTGAGE, SECOND MORTGAGE OR HOME EQUITY LOAN QUALIFIES AS A 45 SUBPRIME HOME LOAN. A SUBPRIME HOME LOAN FOR A FIRST LIEN LOAN IS ONE 46 WHICH HAS AN ANNUAL PERCENTAGE RATE OF THREE OR MORE PERCENTAGE POINTS 47 ABOVE THE YIELD ON TREASURY SECURITIES OF COMPARABLE MATURITY MEASURED 48 AS OF THE FIFTEENTH DAY OF THE MONTH PRECEDING THE MONTH IN WHICH THE 49 APPLICATION FOR THE LOAN IS RECEIVED BY THE LENDER. A SUBPRIME HOME LOAN 50 FOR A SUBORDINATE LIEN LOAN IS ONE WHICH HAS AN ANNUAL PERCENTAGE RATE 51 OF FIVE OR MORE PERCENTAGE POINTS ABOVE THE YIELD ON TREASURY SECURITIES 52 OF COMPARABLE MATURITY MEASURED AS OF THE FIFTEENTH DAY OF THE MONTH 53 PRECEDING THE MONTH IN WHICH THE APPLICATION FOR THE LOAN IS RECEIVED BY 54 THE LENDER. 55 5. MONTHLY PAYMENT SCHEDULE. IF A PRIMA FACIE CASE HAS BEEN ESTAB- 56 LISHED, THE COURT MUST SET FORTH THE TERMS OF A MONTHLY PAYMENT SCHEDULE A. 6756 3 1 WHICH WILL PRESERVE THE RELATIVE FINANCIAL INTERESTS OF BOTH PARTIES 2 UNDER TERMS WHICH ARE EQUITABLE AND JUST. TOWARDS THAT END, THE COURT 3 SHALL INQUIRE INTO THE FINANCES OF BOTH THE MORTGAGEE AND THE MORTGAGOR. 4 THE PURPOSE OF SUCH INQUIRY SHALL BE TO DETERMINE THE MINIMUM AMOUNT 5 NECESSARY TO MAINTAIN THE MORTGAGEE'S FINANCIAL POSITION AND TO DETER- 6 MINE THE AMOUNT WHICH THE MORTGAGOR WILL BE ABLE TO AFFORD. SUCH MONTH- 7 LY PAYMENTS SHALL BE APPLIED TO THE PRINCIPAL AND INTEREST UPON THE 8 INDEBTEDNESS. IF THE FINANCIAL CONDITION OF THE MORTGAGOR EXCEEDS THE 9 MINIMUM AMOUNT NECESSARY TO MAINTAIN THE FINANCIAL POSITION OF THE MORT- 10 GAGEE, SUCH MONTHLY AMOUNT MAY BE INCREASED BEYOND THE MINIMUM AMOUNT AS 11 DETERMINED WITHIN THE DISCRETION OF THE COURT. IT IS WITHIN THE COURT'S 12 DISCRETION TO DETERMINE WHETHER THE ESTABLISHMENT OF SUCH PAYMENT SCHED- 13 ULE IS POSSIBLE UNDER TERMS WHICH ARE EQUITABLE AND JUST. THE PURPOSE OF 14 SUCH MONTHLY PAYMENTS ARE TO PRESERVE THE RELATIVE FINANCIAL INTERESTS 15 OF BOTH PARTIES UNTIL A SETTLEMENT CAN BE REACHED BUT IN NO EVENT SHALL 16 SUCH ORDER GOVERN FOR MORE THAN ONE YEAR. FAILURE TO ADHERE TO THE TERMS 17 OF SUCH SCHEDULE MAY ALSO RESULT IN FORECLOSURE OR LIFTING OF THE ABEY- 18 ANCE. MORE THAN ONE SINGLE YEAR LONG MORATORIUM MAY BE GRANTED IN THE 19 DISCRETION OF THE COURT SUBJECT TO THE FACTS ESTABLISHED DURING THE 20 PROCEEDINGS. 21 6. POSTPONEMENT ORDER. ONCE THE COURT DETERMINES THAT AN EQUITABLE AND 22 JUST PAYMENT SCHEDULE CAN BE ESTABLISHED, IT SHALL ISSUE AN ORDER WHICH 23 SETS FORTH THE TERMS OF SUCH PAYMENT SCHEDULE AND SERVE IT UPON ALL 24 PARTIES TO THE PROCEEDING. SUCH ORDER SHALL SET FORTH A RETURN DATE FOR 25 THE REEXAMINATION OF SUCH MATTER AFTER PASSAGE OF THE POSTPONEMENT TIME 26 PERIOD AT A FORMAL HEARING ON NOTICE TO THE PARTIES. THE COURT MAY 27 TAILOR RELIEF AS REQUIRED BY THE FACTS OF EACH CASE THAT FALLS WITHIN 28 THE PURVIEW OF THIS SECTION. HOWEVER, IN NO EVENT SHALL SUCH ORDER POST- 29 PONE FINAL ACTION BEYOND ONE YEAR WITHOUT A RE-EXAMINATION OF THE 30 PARTIES' FINANCIAL CIRCUMSTANCES AFTER FORMAL HEARING ON NOTICE TO THE 31 PARTIES. THE TIME PERIOD OF SUCH ORDER SHALL RUN FROM THE DATE OF THE 32 ENTRY OF SUCH ORDER. SUCH ABEYANCE SHALL NOT BEGIN UNTIL THE FORECLO- 33 SURE PROCESS HAS REACHED THE POINT WHERE A FINAL DETERMINATION IS POSSI- 34 BLE BUT SHALL BE WITHHELD UNTIL THE POSTPONEMENT PERIOD HAS ELAPSED. 35 ENTITLEMENT TO SUCH ABEYANCE MAY BE ESTABLISHED AT ANY TIME REGARDLESS 36 OF WHETHER FORECLOSURE IS BEING SOUGHT BY THE MORTGAGEE. MULTIPLE POST- 37 PONEMENTS MAY BE GRANTED IN THE DISCRETION OF THE COURT IF WARRANTED BY 38 THE FACTS OF A GIVEN CASE AND THE ECONOMIC CONDITIONS ACROSS THE STATE. 39 7. CONTINUING JURISDICTION. THE COURT SHALL MAINTAIN CONTINUING JURIS- 40 DICTION OF THE MATTER UNTIL IT REACHES FINAL RESOLUTION. UPON THE APPLI- 41 CATION OF EITHER PARTY, PRIOR TO THE EXPIRATION OF THE POSTPONEMENT 42 PERIOD, UPON PRESENTATION OF EVIDENCE THAT THE TERMS FIXED BY THE COURT 43 ARE NO LONGER JUST AND EQUITABLE, THE COURT MAY REVISE AND ALTER SUCH 44 TERMS IN SUCH MANNER AS THE CHANGED CIRCUMSTANCES AND CONDITIONS MAY 45 REQUIRE. 46 S 3. This act shall take effect immediately and shall expire and be 47 deemed repealed 3 years after such date.