senate Bill S4530A

Provides for the filing of a certificate of merit in certain residential foreclosure actions

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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

  • 08 / Apr / 2013
    • REFERRED TO JUDICIARY
  • 14 / Jun / 2013
    • AMEND AND RECOMMIT TO JUDICIARY
  • 14 / Jun / 2013
    • PRINT NUMBER 4530A
  • 21 / Jun / 2013
    • COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • 21 / Jun / 2013
    • ORDERED TO THIRD READING CAL.1643
  • 21 / Jun / 2013
    • SUBSTITUTED BY A5582A

Summary

Provides for the filing of a certificate of merit in any residential foreclosure action involving a home loan in which the defendant is a resident of the property subject to the foreclosure.

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Bill Details

See Assembly Version of this Bill:
A5582A
Versions:
S4530
S4530A
Legislative Cycle:
2013-2014
Law Section:
Civil Practice Law and Rules
Laws Affected:
Add §3012-b, amd R3408, CPLR

Sponsor Memo

BILL NUMBER:S4530A

TITLE OF BILL:
An act
to amend the civil practice law and rules, in relation to residential
foreclosure actions

This measure is being introduced at the request of the Chief Judge of
the State and the Attorney General upon the recommendation of the
Chief Administrative Judge's Advisory Committee on Civil Practice.
This measure would add a new section 3012-b to the CPLR in relation to
residential foreclosure actions. This new section would create a
procedure whereby the plaintiff lender's attorney must take certain
steps to ascertain that his or her client has standing to maintain
the action, Specifically, before commencing such an action, he or she
must be assured that the plaintiff he or she represents holds the
instrument of indebtedness in the action. To evidence that the
plaintiff's attorney has received such assurance, the complaint he or
she files in the action must be accompanied by a certificate, signed
by the plaintiff s attorney, declaring that the attorney has reviewed
the merits of the action and that, based upon consultation with
representatives of the plaintiff or the attorney's review of
pertinent documents, the attorney has concluded to the best of the
attorney's knowledge, information and belief there is a reasonable
basis for commencement of the action. Also, if not attached to the
complaint, the plaintiff's attorney must attach to the certificate
copies of the relevant instruments of indebtedness and any
instruments of modification, extension, consolidation and assignment.

Where the required documents are lost whether by destruction, theft or
otherwise, the attorney shall attach to the certificate supplemental
affidavits by the attorney or by a representative of plaintiff. In
such a case, the plaintiffs obligations under the New York uniform
commercial code are not replaced or abrogated. This measure would
also amend rule 3408 of the CPLR to require a plaintiff to file proof
of service within 20 days of service.

This amendment will supply the necessary ingredient to ensure
participation by the parties in the mandatory foreclose conference
with the court.

We believe that, in addition to helping the bar by clarifying in
statute the plaintiff attorney's obligation to the court in a
residential foreclosure action, this measure is an appropriate public
policy response to the crisis in foreclosure cases. Statutory reform
is needed to ensure the integrity of the mortgage foreclosure process
and eliminate the cases brought without standing or merit. This
measure seeks to prevent completely the problem of "shadow dockets"
in residential foreclosure actions, a problem unforeseen at the time
the recent affirmations rule was promulgated by administrative order.
Under this measure, the trial court would have reasonable assurance
that all of the instruments of indebtedness underpinning these
actions, and all instruments of assignment, if any, are in place at
the commencement of the action.

This measure shall take effect in 30 days and shall apply to actions
commenced on or after such effective date; provided, however that the


amendments to subdivision (a) of rule 3408 of the civil practice law
and rules made by section two of this act shall not affect the
expiration of such subdivision and shall be deemed to expire therewith.

2013 Legislative History: Senate 4530 (Senator Klein) (ref to
Judiciary) Assembly 5582 (M. of A. Weinstein) (PASSED)

2012 Legislative History: S. 7571 (Rules) (ref to Rules)
A. 10395 (M. of A. Weinstein) (Passed)

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

                                 4530--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              April 8, 2013
                               ___________

Introduced  by  Sens.  KLEIN, AVELLA, GOLDEN, HASSELL-THOMPSON, KENNEDY,
  LANZA, LATIMER, PARKER, PERALTA, TKACZYK -- (at request of the  Office
  of  Court  Administration) -- (at request of the Department of Law) --
  read twice and ordered printed, and when printed to  be  committed  to
  the  Committee  on  Judiciary  --  committee discharged, bill amended,
  ordered reprinted as amended and recommitted to said committee

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:

  Section 1. The civil practice law and rules is amended by adding a new
section 3012-b to read as follows:
  S 3012-B. CERTIFICATE OF  MERIT  IN  CERTAIN  RESIDENTIAL  FORECLOSURE
ACTIONS.  (A)  IN  ANY  RESIDENTIAL  FORECLOSURE ACTION INVOLVING A HOME
LOAN, AS SUCH TERM IS DEFINED IN SECTION THIRTEEN HUNDRED  FOUR  OF  THE
REAL  PROPERTY  ACTIONS AND PROCEEDINGS LAW, IN WHICH THE DEFENDANT IS A
RESIDENT OF THE PROPERTY WHICH IS SUBJECT TO FORECLOSURE, THE  COMPLAINT
SHALL  BE  ACCOMPANIED  BY A CERTIFICATE, SIGNED BY THE ATTORNEY FOR THE
PLAINTIFF, CERTIFYING THAT THE ATTORNEY HAS REVIEWED THE  FACTS  OF  THE
CASE  AND THAT, BASED ON CONSULTATION WITH REPRESENTATIVES OF THE PLAIN-
TIFF IDENTIFIED IN THE CERTIFICATE AND THE ATTORNEY'S REVIEW  OF  PERTI-
NENT  DOCUMENTS,  INCLUDING THE MORTGAGE, SECURITY AGREEMENT AND NOTE OR
BOND UNDERLYING THE MORTGAGE EXECUTED BY DEFENDANT AND  ALL  INSTRUMENTS
OF  ASSIGNMENT, IF ANY, AND ANY OTHER INSTRUMENT OF INDEBTEDNESS INCLUD-
ING ANY MODIFICATION, EXTENSION, AND CONSOLIDATION, TO THE BEST OF  SUCH
ATTORNEY'S KNOWLEDGE, INFORMATION AND BELIEF THERE IS A REASONABLE BASIS
FOR  THE COMMENCEMENT OF SUCH ACTION AND THAT THE PLAINTIFF IS CURRENTLY
THE CREDITOR ENTITLED TO ENFORCE RIGHTS UNDER SUCH DOCUMENTS.    IF  NOT
ATTACHED TO THE SUMMONS AND COMPLAINT IN THE ACTION, A COPY OF THE MORT-
GAGE,  SECURITY  AGREEMENT  AND  NOTE  OR  BOND  UNDERLYING THE MORTGAGE
EXECUTED BY DEFENDANT AND ALL INSTRUMENTS OF ASSIGNMENT, IF ANY, AND ANY

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
S                                                          LBD08975-10-3

S. 4530--A                          2

OTHER INSTRUMENT OF INDEBTEDNESS INCLUDING ANY MODIFICATION,  EXTENSION,
AND CONSOLIDATION SHALL BE ATTACHED TO THE CERTIFICATE.
  (B) WHERE A CERTIFICATE IS REQUIRED PURSUANT TO THIS SECTION, A SINGLE
CERTIFICATE SHALL BE FILED FOR EACH ACTION EVEN IF MORE THAN ONE DEFEND-
ANT HAS BEEN NAMED IN THE COMPLAINT OR IS SUBSEQUENTLY NAMED.
  (C)  WHERE  THE  DOCUMENTS  REQUIRED  UNDER  SUBDIVISION  (A)  ARE NOT
ATTACHED TO THE SUMMONS AND COMPLAINT OR TO THE CERTIFICATE, THE  ATTOR-
NEY FOR THE PLAINTIFF SHALL ATTACH TO THE CERTIFICATE SUPPLEMENTAL AFFI-
DAVITS  BY  SUCH  ATTORNEY OR REPRESENTATIVE OF PLAINTIFF ATTESTING THAT
SUCH DOCUMENTS ARE LOST WHETHER  BY  DESTRUCTION,  THEFT  OR  OTHERWISE.
NOTHING  HEREIN SHALL REPLACE OR ABROGATE PLAINTIFF'S OBLIGATIONS AS SET
FORTH IN THE NEW YORK UNIFORM COMMERCIAL CODE.
  (D) THE PROVISIONS OF SUBDIVISION (D) OF RULE  3015  OF  THIS  ARTICLE
SHALL  NOT  BE  APPLICABLE  TO  A DEFENDANT WHO IS NOT REPRESENTED BY AN
ATTORNEY.
  (E) IF A PLAINTIFF WILLFULLY FAILS TO PROVIDE COPIES OF THE PAPERS AND
DOCUMENTS AS REQUIRED BY SUBDIVISION (A) OF THIS SECTION AND  THE  COURT
FINDS,  UPON  THE  MOTION OF ANY PARTY OR ON ITS OWN MOTION ON NOTICE TO
THE PARTIES, THAT SUCH PAPERS AND DOCUMENTS OUGHT TO HAVE BEEN PROVIDED,
THE COURT MAY DISMISS THE COMPLAINT OR MAKE SUCH  FINAL  OR  CONDITIONAL
ORDER  WITH  REGARD TO SUCH FAILURE AS IS JUST INCLUDING BUT NOT LIMITED
TO DENIAL OF THE ACCRUAL OF ANY INTEREST,  COSTS,  ATTORNEYS'  FEES  AND
OTHER FEES, RELATING TO THE UNDERLYING MORTGAGE DEBT. ANY SUCH DISMISSAL
SHALL BE WITHOUT PREJUDICE AND SHALL NOT BE ON THE MERITS.
  S 2. Subdivision (a) of rule 3408 of the civil practice law and rules,
as  amended  by  chapter  507 of the laws of 2009, is amended to read as
follows:
  (a) In any residential foreclosure action involving  a  home  loan  as
such  term is defined in section thirteen hundred four of the real prop-
erty actions and proceedings law, in which the defendant is  a  resident
of  the  property  subject to foreclosure, PLAINTIFF SHALL FILE PROOF OF
SERVICE WITHIN TWENTY DAYS OF SUCH SERVICE, HOWEVER SERVICE IS MADE, AND
the court shall hold a mandatory conference within sixty days after  the
date  when proof of service UPON SUCH DEFENDANT is filed with the county
clerk, or on such adjourned date as has been agreed to by  the  parties,
for  the  purpose  of  holding  settlement discussions pertaining to the
relative rights and obligations of the parties under the  mortgage  loan
documents, including, but not limited to determining whether the parties
can  reach  a  mutually agreeable resolution to help the defendant avoid
losing his or her home, and evaluating the potential for a resolution in
which payment schedules or amounts may  be  modified  or  other  workout
options  may  be  agreed  to,  and for whatever other purposes the court
deems appropriate.
  S 3. This act shall take effect on the thirtieth day  after  it  shall
have  become a law and shall apply to actions commenced on or after such
effective date; provided, however that the amendments to subdivision (a)
of rule 3408 of the civil practice law and rules made by section two  of
this  act  shall not affect the expiration of such subdivision and shall
be deemed to expire therewith.

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