Bill Text: NY S06171 | 2017-2018 | General Assembly | Introduced
Bill Title: Provides for the regulation of distressed home loans.
Spectrum: Strong Partisan Bill (Democrat 10-1)
Status: (Introduced - Dead) 2018-06-20 - COMMITTED TO RULES [S06171 Detail]
Download: New_York-2017-S06171-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 6171 2017-2018 Regular Sessions IN SENATE May 11, 2017 ___________ Introduced by Sen. HAMILTON -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary AN ACT to amend the real property law, the civil practice law and rules, and the criminal procedure law, in relation to distressed home loans The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Paragraphs (c) and (e) of subdivision 2 of section 265-a of 2 the real property law, as added by chapter 308 of the laws of 2006, are 3 amended to read as follows: 4 (c) "Covered contract" means any contract, agreement, or arrangement, 5 or any term thereof, between an equity purchaser and equity seller 6 which: 7 (i) is incident to the sale of a residence in foreclosure; or 8 (ii) is incident to the sale of a residence in foreclosure or default 9 where such contract, agreement or arrangement includes a reconveyance 10 arrangement[.]; or 11 (iii) is incident to the sale of a residence that is the collateral 12 for a "distressed home loan" as defined in paragraph (d) of subdivision 13 one of section two hundred sixty-five-b of this article. 14 For purposes of this section, any reference to the "sale" of a resi- 15 dence by an equity seller to an equity purchaser shall include a trans- 16 action where an equity seller receives consideration from the equity 17 purchaser, and a transaction involving a transfer of title to the equity 18 purchaser where no consideration is provided to the equity seller. 19 (e) "Equity purchaser" means any person who or entity which acquires 20 title to any residence in foreclosure or, where applicable, default, or 21 [his or her] the representative of such person or entity as defined in 22 this subdivision, except a person who acquires such title as follows: 23 (i) to use, and who uses, such property as his or her primary resi- 24 dence; EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD02863-01-7S. 6171 2 1 (ii) by a deed from a referee in a foreclosure sale conducted pursuant 2 to article thirteen of the real property actions and proceedings law; 3 (iii) at any sale of property authorized by statute; 4 (iv) by order or judgment of any court; 5 (v) from a spouse, or from a parent, grandparent, child, grandchild or 6 sibling of such person or such person's spouse; 7 (vi) as a not-for-profit housing organization or as a public housing 8 agency; or 9 (vii) a bona fide purchaser or encumbrancer for value. 10 § 2. Paragraph (a) of subdivision 5 of section 265-a of the real prop- 11 erty law, as added by chapter 308 of the laws of 2006, is amended to 12 read as follows: 13 (a) In addition to the right of rescission described in subdivision 14 eight of this section, the equity seller has the right to cancel any 15 covered contract with an equity purchaser until midnight of the [fifth] 16 fourteenth business day following the day on which the equity seller and 17 equity purchaser sign a covered contract that complies with this 18 section. 19 § 3. Paragraphs (a) and (d) of subdivision 7 of section 265-a of the 20 real property law, as added by chapter 308 of the laws of 2006, are 21 amended to read as follows: 22 (a) Before midnight of the [fifth] fourteenth business day after the 23 date on which the covered contract is executed, the equity purchaser 24 shall not do any of the following: 25 (i) accept from any equity seller an execution of, or induce any equi- 26 ty seller to execute, any instrument of conveyance of any interest in 27 the residence in foreclosure or, where applicable, default; 28 (ii) record with the county clerk any document, including, but not 29 limited to, any instrument of conveyance, signed by the equity seller; 30 (iii) transfer or encumber or purport to transfer or encumber any 31 interest in the residence in foreclosure or, where applicable, default 32 to any third party; 33 (iv) pay the equity seller any consideration; or 34 (v) suggest, encourage, or provide any form which allows the equity 35 seller to waive his or her right to cancel or rescind under this 36 section. 37 (d) It is unlawful for any equity purchaser to initiate, enter into, 38 negotiate, or consummate any covered contract involving residential real 39 property in foreclosure or, where applicable, default if such [person] 40 equity purchaser, by the terms of such covered contract, takes [uncon-41scionable] undue advantage of the equity seller. 42 § 4. Paragraph (e) of subdivision 1 of section 265-b of the real prop- 43 erty law, as added by chapter 472 of the laws of 2008, subparagraphs (i) 44 and (vii) as amended by chapter 507 of the laws of 2009, subparagraphs 45 (iii) and (ix) as further amended by section 104 of part A of chapter 62 46 of the laws of 2011, is amended to read as follows: 47 (e) "Distressed property consultant" or "consultant" means an individ- 48 ual or a corporation, partnership, limited liability company or other 49 business entity that, directly or indirectly, solicits or undertakes 50 employment to provide consulting services to a homeowner for compen- 51 sation or promise of compensation with respect to a distressed home loan 52 or a potential loss of the home for nonpayment of taxes. A distressed 53 property consultant does not include the following: 54 (i) an attorney admitted to practice in the state of New York when the 55 attorney is directly providing [consulting services] legal represen- 56 tation to a homeowner pursuant to a retainer agreement, and has enteredS. 6171 3 1 an appearance on behalf of a homeowner, in the course of his or her 2 regular legal practice. This exception shall not apply to non-attorney 3 individuals engaged in activities covered by subdivision two of this 4 section who are employed by, associated with, or consultants for law 5 firms when such law firms are not providing legal representation to a 6 homeowner in a foreclosure action pursuant to a retainer agreement; 7 (ii) a person or entity who holds or is owed an obligation secured by 8 a lien on any property in foreclosure while the person or entity 9 performs services in connection with the obligation or lien; 10 (iii) a bank, trust company, private banker, bank holding company, 11 savings bank, savings and loan association, thrift holding company, 12 credit union or insurance company organized under the laws of this 13 state, another state or the United States, or a subsidiary or affiliate 14 of such entity or a foreign banking corporation licensed by the super- 15 intendent of financial services or the comptroller of the currency; 16 (iv) a federal Department of Housing and Urban Development approved 17 mortgagee and any subsidiary or affiliate of such mortgagee, and any 18 agent or employee of these persons while engaged in the business of such 19 mortgagee; 20 (v) a judgment creditor of the homeowner, if the judgment creditor's 21 claim accrued before the written notice of foreclosure sale is sent; 22 (vi) a title insurer authorized to do business in this state, while 23 performing title insurance and settlement services; 24 (vii) a person licensed as a mortgage banker or registered as a mort- 25 gage broker or registered as a mortgage loan servicer as defined in 26 article twelve-D of the banking law, provided that no such person shall 27 take any upfront fee in conjunction with activities constituting the 28 business of a distressed property consultant; 29 (viii) a bona fide not-for-profit organization that offers counseling 30 or advice to homeowners in foreclosure or loan default; or 31 (ix) a person licensed or registered in the state to engage in the 32 practice of other professions that the superintendent of financial 33 services has determined should not be subject to this section. 34 § 5. Paragraphs (d) and (e) of subdivision 2 of section 265-b of the 35 real property law, as added by chapter 472 of the laws of 2008, are 36 amended and eight new paragraphs (f), (g), (h), (i), (j), (k), (l) and 37 (m) and a closing paragraph are added to read as follows: 38 (d) retaining any original loan document or other original document 39 related to the distressed home loan, the property or the potential loss 40 of the home for nonpayment of taxes; [or] 41 (e) inducing or attempting to induce a homeowner to enter a consulting 42 contract that does not fully comply with the provisions of this arti- 43 cle[.]; 44 (f) inducing the transfer of a deed to any person or entity, including 45 to the distressed property consultant; 46 (g) accepting or taking ownership of a deed from a homeowner for any 47 period of time whatsoever; 48 (h) simulating in any manner a law enforcement officer, or a represen- 49 tative of any governmental agency; 50 (i) disclosing or threatening to disclose information affecting the 51 homeowner's reputation for credit worthiness with knowledge or reason to 52 know that the information is false; 53 (j) communicating with the homeowner or any member of his family or 54 household with such frequency or at such unusual hours or in such a 55 manner as can reasonably be expected to abuse or harass the homeowner;S. 6171 4 1 (k) claiming, attempting, or threatening to enforce a right with know- 2 ledge or reason to know that the right does not exist; 3 (l) using a communication which simulates in any manner legal or judi- 4 cial process or which gives the appearance of being authorized, issued 5 or approved by a government, governmental agency, or attorney at law 6 when it is not; or 7 (m) encumbering the property with a lien without any contractual or 8 legal basis. 9 If any provision of this subdivision or the application thereof to any 10 person or circumstances is held invalid, the invalidity thereof shall 11 not affect other provisions or applications of this subdivision which 12 can be given effect without the invalid provision or application, and to 13 this end the provisions of this subdivision are severable. 14 § 6. The opening paragraph of subdivision (b) of rule 6312 of the 15 civil practice law and rules, as amended by chapter 24 of the laws of 16 1996, is amended to read as follows: 17 Except as provided in section 2512 and in actions brought under 18 section two hundred sixty-five-a of the real property law, prior to the 19 granting of a preliminary injunction, the plaintiff shall give an under- 20 taking in an amount to be fixed by the court, that the plaintiff, if it 21 is finally determined that he or she was not entitled to an injunction, 22 will pay to the defendant all damages and costs which may be sustained 23 by reason of the injunction, including: 24 § 7. The criminal procedure law is amended by adding a new section 25 420.45 to read as follows: 26 § 420.45 Post-trial motion relating to certain instruments affecting 27 residential real property. 28 1. When a defendant has been convicted after a trial or pled guilty to 29 violating either section 175.30 or 175.35 of the penal law in connection 30 to an instrument that is material to the transfer or purchase of resi- 31 dential real property, the district attorney may file a motion in the 32 supreme court in the county where the property that is subject to the 33 instrument is located on behalf of the victim to void the instrument 34 that is the subject of such criminal information or indictment. Such 35 motion must be in writing and provide reasonable notice to all persons 36 who have an interest in the property affected by such instrument. The 37 motion papers must state the county or borough, if in the city of New 38 York, and block, lot, street address of such property, and a description 39 of such property. The motion papers must state the grounds of the 40 motion, must contain sworn allegations of fact supporting such grounds, 41 and include a copy of the guilty disposition attached to the document. 42 2. Within ten days after filing a motion pursuant to subdivision one 43 of this section, the district attorney shall record a copy of the notice 44 of motion in the office of the clerk of the county in which the property 45 is situated. The notice shall be indexed by the clerk in the manner 46 prescribed by subdivision (c) of rule sixty-five hundred eleven of the 47 civil practice law and rules for a notice of pendency of action and 48 shall have the same effect as such notice. 49 3. The supreme court must conduct a hearing and make findings of fact 50 essential to the determination whether to declare the instrument 51 described in subdivision one of this section void ab initio. All persons 52 providing factual information at such hearing must testify under oath. 53 There will be a rebuttable presumption that where a party is convicted 54 after a trial in criminal court or a guilty plea to either section 55 175.30 or section 175.35 of the penal law in connection with an instru-S. 6171 5 1 ment that is material to the transfer or sale of residential real prop- 2 erty, that such instrument is void ab initio. 3 4. Upon the defendant's conviction of or guilty plea to section 175.30 4 or section 175.35 of the penal law as described in subdivision one of 5 this section, and after conducting a hearing pursuant to subdivision 6 three of this section, a court shall make a determination and if appro- 7 priate shall order that the instrument described in subdivision one of 8 this section be declared void ab initio or grant other appropriate 9 relief to the victim. The order of the court shall describe the nature 10 of the false statement or false information contained in such instru- 11 ment. A copy of such instrument shall be attached to the order of the 12 court. 13 5. If the order relates to an instrument that has been filed with, 14 registered, or recorded in a public office, the district attorney shall 15 record a certified copy of such order in the office of the recording 16 officer of the county in which such property is situated, in the same 17 manner as a conveyance duly acknowledged or proved and certified so as 18 to entitle it to be recorded. Such recording officer shall record the 19 same in his or her said office. 20 6. For purposes of this section, "all persons who have an interest in 21 the property affected by such instrument" shall mean all parties who 22 have recorded an instrument affecting the real property that is the 23 subject of the instrument described in subdivision one of this section, 24 including any party or entity that may have liens of interest on the 25 property, and any current residents of the property, as of the date of 26 the filing of the criminal information or indictment. 27 7. Nothing in this section shall be deemed to inhibit or prevent a 28 party's right to appeal such order. 29 § 8. This act shall take effect immediately.
