senate Bill S1478

Amended

Relates to presumption of dismissal of residential mortgage foreclosure actions for repeated plaintiff non-appearance or failure to meet readiness deadlines

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 09 / Jan / 2013
    • REFERRED TO JUDICIARY
  • 08 / Jan / 2014
    • REFERRED TO JUDICIARY
  • 24 / Jan / 2014
    • AMEND AND RECOMMIT TO JUDICIARY
  • 24 / Jan / 2014
    • PRINT NUMBER 1478A

Summary

Relates to presumption of dismissal of residential mortgage foreclosure actions for repeated plaintiff non-appearance or failure to meet readiness deadlines.

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Bill Details

See Assembly Version of this Bill:
A2779
Versions:
S1478
S1478A
Legislative Cycle:
2013-2014
Current Committee:
Senate Judiciary
Law Section:
Judiciary Law
Laws Affected:
Amd ยง212, Judy L; amd R3408, CPLR
Versions Introduced in Previous Legislative Cycles:
2011-2012: S442, S442
2009-2010: S7798A, S7798A

Sponsor Memo

BILL NUMBER:S1478

TITLE OF BILL:
An act
to amend the judiciary law and the civil practice law and rules, in
relation to dismissal of residential mortgage foreclosure
actions for repeated failure by
plaintiff to appear with authority to negotiate
or to negotiate in good faith or meet other deadlines

SUMMARY OF SPECIFIC PROVISIONS:
Subdivision 2 of the Judiciary law section 212 is amended by adding a
new paragraph (s) which provides for the adoption of court rules
governing instances where the plaintiff in a residential foreclosure
action twice fails to appear at a settlement conference without the
authority to execute a settlement with the defendant or to negotiate
in good faith or to meet any deadline for the production of documents
or evidence. A new subdivision (i) is added to Rule 2408 of the civil
Practice Law and Rules which states that upon a second failure by a
plaintiff in a residential foreclosure action to appear with the
authority to execute a settlement with the defendant or to negotiate
in good faith or to meet any deadline for the production of documents
or evidence, the defendant shall be deemed to make a motion for an
order dismissing such action, unless the defendant waives the making
of such motion in writing by advice of counsel. Upon the third such
failure by a plaintiff, the court shall grant the defendant's motion
except on good cause shown by the plaintiff. The subdivision sets
forth three obligations of a plaintiff at a settlement conference: to
appear with the authority to execute a settlement with the defendant,
to negotiate in good
faith, and to meet any deadline for the production of documents or
evidence. Repeated failures of the plaintiff to fulfill the three
obligations, in any combination, will give rise to the making and
granting of the motion.

JUSTIFICATION:
The New York State Foreclosure Prevention and Responsible Lending Act
of 2008 created a court-based mandatory settlement conference process
for all homeowners with sub-prime mortgages facing foreclosure. In
November 2009, additional legislation was enacted which expands the
mandatory settlement conference process to all homeowners facing
foreclosure, requires the parties to bring key documents to the
mandatory settlement conference, and obliges both parties to
negotiate in good faith to reach a mutually agreeable resolution.

The mandatory settlement conference process was created and expanded
with the express goal of reducing foreclosures and enabling more fami-
lies to remain in their homes. Unfortunately, all too often the
settlement conference process has not lived up to the legislature's
intentions. While the settlement conference process was created to
provide homeowners a chance to negotiate directly with their lenders
and reach a workable solution, numerous reports from homeowners,
court personnel, and foreclosure prevention organizations indicate
that many lenders frequently fail to comply with the law. All too
often, lenders repeatedly send subcontracted attorneys to settlement
conferences and foreclosure proceedings who have neither the


preparation nor the authority to negotiate with homeowners. According
to a study conducted by the Center for New York City Neighborhoods,
of the nearly 800 settlement conferences they studied in 2009 in New
York City courts, only 3% resulted in any kind of settlement. The
study found that lawyers representing lenders only had a copy of an
offer already made by the homeowner to the lender 3% of the time,
knew the status of an offer with the lender 6% of the time, and only
had a phone number to call someone with authority to settle in 13% of
the conferences.

The failure of many lenders to send representatives to settlement
conferences and foreclosure proceedings who have the authority to
negotiate and execute settlements, as well as the ability to produce
documents requested by the court, is an enormous waste of the court's
and homeowners' time. Moreover, it undermines the ability of many
residents facing foreclosure to negotiate an agreement that would
enable them to stay in their homes.

This legislation directs the courts to adopt rules governing
foreclosure proceedings that will provide a strong incentive for
plaintiffs to appear at settlement conferences with the proper
authority, required knowledge and documents, and willingness to
negotiate in good faith as required by law.

FISCAL IMPLICATIONS TO STATE AND LOCAL GOVERNMENT:
None.

LEGISLATIVE HISTORY:
2010: S.7798A
2011-2012: S442

EFFECTIVE DATE:
Immediately; provided, that section two of this act shall take effect
ninety days after it shall become a law.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  1478

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  Sens.  KRUEGER,  HOYLMAN,  MONTGOMERY  -- read twice and
  ordered printed, and when printed to be committed to the Committee  on
  Judiciary

AN  ACT to amend the judiciary law and the civil practice law and rules,
  in relation to dismissal of residential mortgage  foreclosure  actions
  for  repeated failure by plaintiff to appear with authority to negoti-
  ate or to negotiate in good faith or meet other deadlines

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision  2  of  section  212  of the judiciary law is
amended by adding a new paragraph (s) to read as follows:
  (S) ADOPT RULES PROVIDING FOR CONSIDERATION OF AND WAIVER  OF  MOTIONS
TO  DISMISS  PURSUANT  TO  SUBDIVISION  (I)  OF RULE THREE THOUSAND FOUR
HUNDRED EIGHT OF THE CIVIL PRACTICE LAW AND RULES, WHERE  THE  PLAINTIFF
IN A RESIDENTIAL FORECLOSURE ACTION PURSUANT TO SECTION THIRTEEN HUNDRED
FOUR  OF  THE  REAL  PROPERTY ACTIONS AND PROCEEDINGS LAW TWICE FAILS IN
SUCH AN ACTION TO MAKE AN APPEARANCE WITH  AUTHORITY  TO  NEGOTIATE  AND
EXECUTE  A SETTLEMENT OR TO NEGOTIATE IN GOOD FAITH OR TO MEET ANY DEAD-
LINE FOR THE PRODUCTION OF DOCUMENTS OR OTHER EVIDENCE REQUIRED BY  LAW,
BY COURT RULE, BY THE COURT OR BY STIPULATION.
  S  2.  Rule  3408  of  the  civil practice law and rules is amended by
adding a new subdivision (i) to read as follows:
  (I) WHERE A PLAINTIFF IN AN ACTION SUBJECT TO THIS SECTION TWICE FAILS
IN A SETTLEMENT CONFERENCE TO MAKE AN APPEARANCE WITH AUTHORITY TO NEGO-
TIATE AND EXECUTE A SETTLEMENT OR TO NEGOTIATE IN GOOD FAITH OR TO  MEET
ANY  DEADLINE FOR THE PRODUCTION OF DOCUMENTS OR OTHER EVIDENCE REQUIRED
BY LAW, BY COURT RULE, BY THE COURT OR BY STIPULATION, UPON  THE  SECOND
SUCH FAILURE THE DEFENDANT SHALL BE DEEMED TO MAKE A MOTION FOR AN ORDER
DISMISSING  SUCH  ACTION,  WITHOUT PREJUDICE, UNLESS THE DEFENDANT SHALL
WAIVE THE MAKING OF SUCH MOTION ON ADVICE OF COUNSEL BY  SIGNED  WRITING

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00999-01-3

S. 1478                             2

FILED  WITH  THE  COURT. THE COURT SHALL RESERVE DECISION ON SUCH MOTION
AND UPON THE THIRD SUCH FAILURE BY THE PLAINTIFF  IN  SUCH  ACTION,  THE
COURT  SHALL GRANT SUCH MOTION, EXCEPT ON GOOD CAUSE SHOWN BY THE PLAIN-
TIFF.
  S  3.  This act shall take effect immediately; provided, however, that
section two of this act shall take effect ninety  days  after  this  act
shall have become a law.

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