senate Bill S1478A

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:
A2779A
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:S1478A

TITLE OF BILL: An act to amend the judiciary law and the civil practice
law and rules, in relation to dismissal of residential mortgage foreclo-
sure 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 (t) which provides fox the adoption of court rules govern-
ing instances whore 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 3408 of the civil Practice Law and
Rules which states that upon a second failure by a plaintiff in a resi-
dential 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 fail-
ures of the plaintiff to fulfill the three obligations, in any combina-
tion, will give rise to the making and granting of the motion.

JUSTIFICATION:

The New York State Foreclosure Prevention and Responsible Lending Act of
2002 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 settle-
ment 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 author-
ity 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 repres-
enting lenders only had a copy of an offer already made by the homeowner
to the lender of the time, knew the status of an offer with the lend- er
6% of the time, and only had a phone number to call someone with author-
ity 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 nego-
tiate and execute settlements, as well as the ability to produce docu-
ments 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: S.442

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--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  Sens.  KRUEGER,  HASSELL-THOMPSON,  HOYLMAN, MONTGOMERY,
  PARKER, PERKINS -- read twice and ordered printed, and when printed to
  be committed to the Committee  on  Judiciary  --  recommitted  to  the
  Committee  on  Judiciary  in  accordance with Senate Rule 6, sec. 8 --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted to said committee

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 (t) to read as follows:
  (T) 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00999-02-4

S. 1478--A                          2

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
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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