Bill Text: NY S07571 | 2011-2012 | General Assembly | Introduced

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Bill Title: Relates to requiring certificates of merit in certain residential foreclosure actions.

Spectrum: Committee Bill

Status: (Introduced - Dead) 2012-06-05 - REFERRED TO RULES [S07571 Detail]

Download: New_York-2011-S07571-Introduced.html

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                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         7571
                                   I N  S E N A T E
                                     June 5, 2012
                                      ___________
       Introduced  by  COMMITTEE ON RULES -- (at request of the Office of Court
         Administration) -- read twice and ordered printed, and when printed to
         be committed to the Committee on Rules
       AN ACT to amend the civil practice law and rules, in relation  to  resi-
         dential foreclosure actions
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. The civil practice law and rules is amended by adding a new
    2  section 3012-b to read as follows:
    3    S 3012-B. CERTIFICATE OF  MERIT  IN  CERTAIN  RESIDENTIAL  FORECLOSURE
    4  ACTIONS.  (A)  IN  ANY  RESIDENTIAL  FORECLOSURE ACTION INVOLVING A HOME
    5  LOAN, AS SUCH TERM IS DEFINED IN SECTION THIRTEEN HUNDRED  FOUR  OF  THE
    6  REAL  PROPERTY  ACTIONS AND PROCEEDINGS LAW, IN WHICH THE DEFENDANT IS A
    7  RESIDENT OF THE PROPERTY SUBJECT TO FORECLOSURE, THE COMPLAINT SHALL  BE
    8  ACCOMPANIED  BY  A  CERTIFICATE, EXECUTED BY THE ATTORNEY FOR THE PLAIN-
    9  TIFF, CERTIFYING THAT THE ATTORNEY HAS REVIEWED THE FACTS  OF  THE  CASE
   10  AND  THAT,  BASED ON CONSULTATION WITH AUTHORIZED REPRESENTATIVES OF THE
   11  PLAINTIFF AND THE ATTORNEY'S REVIEW OF  PERTINENT  DOCUMENTS,  INCLUDING
   12  THE  MORTGAGE,  SECURITY AGREEMENT AND NOTE OR BOND UNDERLYING THE MORT-
   13  GAGE EXECUTED BY  THE  RESIDENTIAL  DEFENDANT  AND  ALL  INSTRUMENTS  OF
   14  ASSIGNMENT,  IF ANY, OR ANY OTHER INSTRUMENT OF INDEBTEDNESS, THERE IS A
   15  REASONABLE BASIS FOR THE COMMENCEMENT OF SUCH ACTION AND THAT THE PLAIN-
   16  TIFF IS CURRENTLY THE CREDITOR ENTITLED TO  ENFORCE  RIGHTS  UNDER  SUCH
   17  DOCUMENTS. SUCH CERTIFICATE SHALL ATTACH A COPY OF THE MORTGAGE, SECURI-
   18  TY  AGREEMENT  AND  NOTE OR BOND UNDERLYING THE MORTGAGE EXECUTED BY THE
   19  RESIDENTIAL DEFENDANT AND ALL INSTRUMENTS OF ASSIGNMENT.
   20    (B) WHERE A CERTIFICATE IS REQUIRED PURSUANT TO THIS SECTION, A SINGLE
   21  CERTIFICATE SHALL BE FILED FOR EACH ACTION EVEN IF MORE THAN ONE DEFEND-
   22  ANT HAS BEEN NAMED IN THE COMPLAINT OR IS SUBSEQUENTLY NAMED.
   23    (C) THE PROVISIONS OF SUBDIVISION (D) OF RULE  3015  OF  THIS  ARTICLE
   24  SHALL  NOT BE APPLICABLE TO A DEFENDANT RESIDENT OF THE PROPERTY SUBJECT
   25  TO FORECLOSURE WHO IS NOT REPRESENTED BY AN ATTORNEY.
   26    (D) IF A PLAINTIFF WILLFULLY FAILS TO PROVIDE COPIES OF THE PAPERS AND
   27  DOCUMENTS AS REQUIRED BY SUBDIVISION (A) OF THIS SECTION AND  THE  COURT
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD15520-03-2
       S. 7571                             2
    1  FINDS,  UPON  THE  MOTION OF ANY PARTY OR ON ITS OWN MOTION ON NOTICE TO
    2  THE PARTIES, THAT SUCH PAPERS AND DOCUMENTS OUGHT TO HAVE BEEN PROVIDED,
    3  THE COURT MAY DISMISS THE COMPLAINT OR MAKE SUCH  FINAL  OR  CONDITIONAL
    4  ORDER  WITH  REGARD TO SUCH FAILURE AS IS JUST INCLUDING BUT NOT LIMITED
    5  TO DENIAL OF THE ACCRUAL OF ANY INTEREST,  COSTS,  ATTORNEYS'  FEES  AND
    6  OTHER FEES, RELATING TO THE UNDERLYING MORTGAGE DEBT. ANY SUCH DISMISSAL
    7  SHALL NOT BE ON THE MERITS.
    8    S 2. Subdivision (a) of rule 3408 of the civil practice law and rules,
    9  as  amended  by  chapter  507 of the laws of 2009, is amended to read as
   10  follows:
   11    (a) In any residential foreclosure action involving  a  home  loan  as
   12  such  term is defined in section thirteen hundred four of the real prop-
   13  erty actions and proceedings law, in which the defendant is  a  resident
   14  of  the  property  subject to foreclosure, PLAINTIFF SHALL FILE PROOF OF
   15  SERVICE WITHIN TWENTY DAYS OF SUCH SERVICE, HOWEVER SERVICE IS MADE, AND
   16  the court shall hold a mandatory conference within sixty days after  the
   17  date  when  proof  of service UPON SUCH DEFENDANT RESIDENT is filed with
   18  the county clerk, or on such adjourned date as has been agreed to by the
   19  parties, for the purpose of holding settlement discussions pertaining to
   20  the relative rights and obligations of the parties  under  the  mortgage
   21  loan  documents,  including,  but not limited to determining whether the
   22  parties can reach a mutually agreeable resolution to help the  defendant
   23  avoid  losing his or her home, and evaluating the potential for a resol-
   24  ution in which payment schedules or amounts may  be  modified  or  other
   25  workout  options  may  be agreed to, and for whatever other purposes the
   26  court deems appropriate.
   27    S 3. This act shall take effect immediately and shall apply to actions
   28  commenced on or after such effective date; provided,  however  that  the
   29  amendments to subdivision (a) of rule 3408 of the civil practice law and
   30  rules made by section two of this act shall not affect the expiration of
   31  such subdivision and shall be deemed to expire therewith.