senate Bill S5719

Provides for summary action to foreclose upon vacant and abandoned residential real property

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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

  • 07 / Jun / 2013
    • REFERRED TO HOUSING, CONSTRUCTION AND COMMUNITY DEVELOPMENT
  • 21 / Jun / 2013
    • COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • 21 / Jun / 2013
    • ORDERED TO THIRD READING CAL.1656
  • 21 / Jun / 2013
    • PASSED SENATE
  • 21 / Jun / 2013
    • DELIVERED TO ASSEMBLY
  • 24 / Jun / 2013
    • REFERRED TO JUDICIARY
  • 08 / Jan / 2014
    • DIED IN ASSEMBLY
  • 08 / Jan / 2014
    • RETURNED TO SENATE
  • 08 / Jan / 2014
    • REFERRED TO HOUSING, CONSTRUCTION AND COMMUNITY DEVELOPMENT
  • 27 / Jan / 2014
    • 1ST REPORT CAL.56
  • 28 / Jan / 2014
    • 2ND REPORT CAL.
  • 03 / Feb / 2014
    • ADVANCED TO THIRD READING
  • 20 / Jun / 2014
    • COMMITTED TO RULES

Summary

Provides for summary action to foreclose upon vacant and abandoned residential real property.

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Bill Details

See Assembly Version of this Bill:
A7871
Versions:
S5719
Legislative Cycle:
2013-2014
Current Committee:
Senate Rules
Law Section:
Real Property Actions and Proceedings Law
Laws Affected:
Add §1308, RPAP L

Sponsor Memo

BILL NUMBER:S5719

TITLE OF BILL: An act to amend the real property actions and
proceedings law, in relation to summary action to foreclose mortgages
on vacant and abandoned residential property

PURPOSE OF BILL: The bill would allow for an expedited procedure for
abandoned property foreclosure for residential properties. Through
this process, once the property has been deemed abandoned by the
court, plaintiffs would be authorized to move for judgment and sale
after a foreclosure complaint is filed and the time for all defendants
to answer has expired.

SUMMARY OF PROVISIONS: OF BILL: The bill would create a new § 1308 to
the Real Property Actions and Proceedings Law entitled "Abandoned
Property Foreclosure Summary Procedure."

*Section 1308(1)(a) would define "vacant and abandoned" residential
property under the new Section as that which a mortgagee proves,
through reports, affidavits, affirmations, photographs or otherwise,
to the satisfaction of the Court, that the property is, vacant and has
been abandoned. To do so, the property must fit the criteria of at
least two of the factors listed in the bill. Furthermore, property can
only be deemed vacant and abandoned if the Court finds that the
property is not occupied by a tenant pursuant to a written lease
agreement entered into prior to the foreclosure action.

*Section 1308(1)(b) lists the factors that would prevent a residential
property from being declared vacant or abandoned including: the
building is under construction or renovation, the building is occupied
on a seasonal basis, or the building is the subject of a court action
such as probate, quiet title or ownership dispute.

*Section 1308(2) describes how a plaintiff could allege in its
complaint that a property is vacant and abandoned. This would allow
for bypassing the referee process and/or settlement conference (where
appropriate) at the start of the action. Should the information
regarding proof of vacancy and abandonment arise after the initiation
of the foreclosure action, the bill lays out the method at each stage
of the matter, including for those properties defined as a home loan
under RPAPL § 1304(5)(a).

*Section 1308(3) provides that a judgment of foreclosure and sale
cannot be entered if at any time the court finds that the property is
not vacant and abandoned or if the mortgagor files an answer,
appearance or other written objection that contests the status of the
property as vacant and abandoned.

*Section 1308(4) provides that should the judgment of foreclosure and
sale be denied pursuant to the court's finding that the property is
not, in fact, vacant and abandoned, then all rights and procedures
available would be restored.

*Section 1308(5) provides that the Section would not pre-empt, reduce
or limit any rights for a locality's ability to enforce laws with
respect to property maintenance.


*Section 1308(6) provides an immediate effective date.

JUSTIFICATION: The longer an abandoned home stays in foreclosure, the
greater the chances of blight, resulting in deterioration in value to
the property itself and the neighborhood at large. The longer an
abandoned or vacant property languishes in foreclosure the more likely
it will drag down the neighborhood it is in as well, through
delinquency, blight and distressed pricing in those areas. High
concentrations of vacant properties in certain parts of the State are
taking a heavy toll on our towns and communities.

This bill would apply to vacant and abandoned residential properties
pursuant to a newly articulated definition in the bill. Such property
would be deemed vacant and abandoned when a mortgagee can prove so
according to several factors listed in the bill and pursuant to court
finding. The bill would allow for bypassing of the referee stage
and/or settlement conference stage (where appropriate) of the
foreclosure process for such properties. In such cases, after a
foreclosure complaint is filed and the time for all defendants to
answer has expired, the plaintiff would be authorized to move for
judgment and sale, with the court compelled to compute the sum due in
the judgment.

LEGISLATIVE HISTORY: New bill, 2013.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: Undetermined

EFFECTIVE DATE: Immediately.

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

                                  5719

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              June 7, 2013
                               ___________

Introduced  by  Sen.  SKELOS -- read twice and ordered printed, and when
  printed to be committed to the Committee on Housing, Construction  and
  Community Development

AN  ACT  to  amend  the  real  property  actions and proceedings law, in
  relation to summary action to foreclose mortgages on vacant and  aban-
  doned residential property

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

  Section 1. The real property actions and proceedings law is amended by
adding a new section 1308 to read as follows:
  S 1308. ABANDONED PROPERTY FORECLOSURE SUMMARY PROCEDURE.  1. FOR  THE
PURPOSES OF THIS SECTION, THE FOLLOWING DEFINITIONS SHALL APPLY:
  (A) "VACANT AND ABANDONED" RESIDENTIAL PROPERTY MEANS RESIDENTIAL REAL
PROPERTY,  AS  DEFINED IN SECTION THIRTEEN HUNDRED FIVE OF THIS ARTICLE,
WITH RESPECT TO WHICH THE MORTGAGEE  PROVES  BY  REPORTS,  AFFIDAVIT  OR
AFFIDAVITS,  AFFIRMATION  OR  AFFIRMATIONS, PHOTOGRAPHS OR OTHERWISE, OR
ANY COMBINATION THEREOF TO THE SATISFACTION OF THE COURT, THAT THE MORT-
GAGED REAL PROPERTY IS VACANT AND  HAS  BEEN  ABANDONED.  REAL  PROPERTY
SHALL BE DEEMED "VACANT AND ABANDONED" IF THE COURT FINDS THAT THE MORT-
GAGED  PROPERTY IS NOT OCCUPIED BY A MORTGAGOR OR TENANT PURSUANT TO AND
AS EVIDENCED BY A WRITTEN LEASE AGREEMENT  IN  THE  TENANT'S  POSSESSION
ENTERED  INTO  PRIOR TO THE INITIATION OF THE FORECLOSURE ACTION, AND AT
LEAST TWO OF THE FOLLOWING CONDITIONS EXIST:
  (I) THE PROPERTY IS NOT MAINTAINED BY A MORTGAGOR IN A MANNER CONSIST-
ENT WITH THE STANDARDS SET FORTH IN SUBDIVISION FIVE OF SECTION THIRTEEN
HUNDRED SEVEN OF THIS ARTICLE;
  (II) THE PROPERTY IS A RISK TO THE HEALTH, SAFETY OR  WELFARE  OF  THE
PUBLIC,  OR  ANY ADJOINING OR ADJACENT PROPERTY OWNERS, WHICH EXISTS DUE
TO  ACTS  OF  VANDALISM,  LOITERING,  CRIMINAL  CONDUCT,   OR   PHYSICAL
DESTRUCTION OR DETERIORATION OF THE PROPERTY;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11331-01-3

S. 5719                             2

  (III) THE PROPERTY IS SUBJECT TO AN UNCORRECTED VIOLATION OF A MUNICI-
PAL  BUILDING,  HOUSING OR SIMILAR CODE DURING THE YEAR PRECEDING INITI-
ATION OF THE FORECLOSURE ACTION, OR AN ORDER BY ANY MUNICIPAL  OR  OTHER
GOVERNMENTAL AUTHORITY DECLARING THE PROPERTY UNFIT FOR OCCUPANCY AND TO
REMAIN VACANT AND UNOCCUPIED OR TO BE DEMOLISHED;
  (IV)  A  WRITTEN STATEMENT HAS BEEN ISSUED BY ANY MORTGAGOR EXPRESSING
THE CLEAR INTENT OF ALL MORTGAGORS TO ABANDON THE PROPERTY; OR
  (V) ANY OTHER REASONABLE INDICIA OF ABANDONMENT.
  (B) A RESIDENTIAL PROPERTY SHALL NOT BE CONSIDERED "VACANT  AND  ABAN-
DONED" IF, ON THE PROPERTY:
  (I)  THERE IS AN UNOCCUPIED BUILDING WHICH IS UNDERGOING CONSTRUCTION,
RENOVATION  OR  REHABILITATION  THAT   IS   PROCEEDING   DILIGENTLY   TO
COMPLETION,  AND THE BUILDING IS IN COMPLIANCE WITH ALL APPLICABLE ORDI-
NANCES, CODES, REGULATIONS AND STATUTES;
  (II) THERE IS A BUILDING OCCUPIED ON A SEASONAL BASIS, BUT  IS  OTHER-
WISE SECURE; OR
  (III)  THERE  IS  A  BUILDING  THAT IS SECURE, BUT IS THE SUBJECT OF A
PROBATE ACTION,  ACTION  TO  QUIET  TITLE  OR  OTHER  SIMILAR  OWNERSHIP
DISPUTE.
  2.  WHERE THE FORECLOSING PARTY REASONABLY BELIEVES THAT THE MORTGAGED
PROPERTY IS VACANT AND ABANDONED PURSUANT TO  THIS  SECTION,  THEN  THAT
FORECLOSING  PARTY  MAY INCLUDE AN ALLEGATION IN THE COMPLAINT THAT UPON
INFORMATION AND BELIEF THE MORTGAGED PREMISES ARE VACANT  AND  ABANDONED
PURSUANT  TO  THIS  SECTION, AND PURSUE AWARD AND ENTRY OF A JUDGMENT OF
FORECLOSURE AND SALE WITHOUT NECESSITY FOR THE APPOINTMENT OF A  REFEREE
TO  COMPUTE  AND  THE  REFEREE'S COMPUTATION OF THE SUM DUE AS OTHERWISE
REQUIRED BY THIS ARTICLE. IF THE INFORMATION SUPPORTING THE BELIEF  THAT
THE  MORTGAGED  PREMISES  ARE VACANT AND ABANDONED IS OBTAINED OR DETER-
MINED AFTER INITIATION OF THE FORECLOSURE ACTION, THE COMPLAINT  ALLEGA-
TION THEREFOR SHALL NOT BE REQUIRED AND APPOINTMENT OF A REFEREE AND THE
REFEREE'S  CALCULATION  OF THE SUM DUE SHALL BE BYPASSED PURSUANT TO THE
FOLLOWING PROCEDURE:
  (A) AFTER SERVICE OF PROCESS OF THE SUMMONS AND COMPLAINT IN THE FORE-
CLOSURE ACTION IS COMPLETE AND THE TIME FOR  ALL  DEFENDANTS  OVER  WHOM
JURISDICTION  HAS  BEEN  OBTAINED  TO  APPEAR OR ANSWER HAS EXPIRED, THE
FORECLOSING PARTY MAY:
  (I) IF ANY ANSWER HAS BEEN INTERPOSED, EXCEPT AN ANSWER CONTESTING THE
VACANT AND ABANDONED STATUS OF THE MORTGAGED PREMISES,  IN  WHICH  EVENT
THE  PROCEDURE  OF  THIS  SECTION  SHALL  BE UNAVAILABLE, UPON NOTICE OF
MOTION OR ORDER TO SHOW CAUSE MOVE FOR SUMMARY JUDGMENT PURSUANT TO RULE
THIRTY-TWO HUNDRED TWELVE OF THE CIVIL PRACTICE LAW AND RULES TO  STRIKE
THE  ANSWER  OR  ANSWERS AND, IN ADDITION, FOR ISSUANCE AND ENTRY BY THE
COURT OF A JUDGMENT OF FORECLOSURE AND SALE WHICH  JUDGMENT  SHALL  HAVE
BEEN SUBMITTED BY THE FORECLOSING PARTY WITH THE MOTION OR ORDER TO SHOW
CAUSE,  AND  IN  WHICH JUDGMENT THE COURT SHALL HAVE DETERMINED THAT THE
MORTGAGED PROPERTY IS VACANT AND ABANDONED, COMPUTED THE  SUM  DUE  UPON
THE  SUBJECT  MORTGAGE  DOCUMENTS AND SHALL HAVE DECLARED THAT THE MORT-
GAGED PROPERTY IS TO BE SOLD AS ONE PARCEL OR IN PARCELS  AS  THE  COURT
SHALL HAVE DECIDED; OR
  (II)  IF  ONLY  A  GENERAL NOTICE OF APPEARANCE HAS BEEN INTERPOSED BY
DEFENDANT OR DEFENDANTS, AND ANY DEFENDANT  NOT  INTERPOSING  A  GENERAL
NOTICE  OF  APPEARANCE  HAS  DEFAULTED  IN  ANSWERING OR APPEARING, UPON
NOTICE OF MOTION OR ORDER TO SHOW CAUSE MOVE FOR ISSUANCE AND  ENTRY  BY
THE COURT OF A JUDGMENT OF FORECLOSURE AND SALE AS SET FORTH IN SUBPARA-
GRAPH (I) OF THIS PARAGRAPH; OR

S. 5719                             3

  (III) IF ONLY A NOTICE OF APPEARANCE AND WAIVER HAS BEEN INTERPOSED BY
DEFENDANT  OR  DEFENDANTS  AND ANY DEFENDANT NOT INTERPOSING A NOTICE OF
APPEARANCE AND WAIVER HAS DEFAULTED IN APPEARING OR ANSWERING,  UPON  EX
PARTE  APPLICATION  FOR ISSUANCE AND ENTRY BY THE COURT OF A JUDGMENT OF
FORECLOSURE AND SALE AS SET FORTH IN SUBPARAGRAPH (I) OF THIS PARAGRAPH.
  (B)  ANY  MOTION OR ORDER TO SHOW CAUSE PURSUANT TO THIS SECTION SHALL
CONTAIN A DECLARATION IN THE NOTICE OF  MOTION  OR  THE  ORDER  TO  SHOW
CAUSE, AS THE CASE MAY BE, THAT:
  "THIS  MOTION SEEKS ENTRY OF A JUDGMENT OF FORECLOSURE AND SALE PURSU-
ANT TO SECTION 1308 OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW  ON
THE GROUND THAT THE MORTGAGED PREMISES ARE VACANT AND ABANDONED."
  (C)  IF THE MORTGAGED PROPERTY, IN ADDITION TO BEING RESIDENTIAL PROP-
ERTY, SHALL ALSO BE A HOME LOAN AS DEFINED IN PARAGRAPH (A) OF  SUBDIVI-
SION  FIVE  OF  SECTION  THIRTEEN HUNDRED FOUR OF THIS ARTICLE, THEN THE
SETTLEMENT CONFERENCE OTHERWISE REQUIRED  BY  RULE  THIRTY-FOUR  HUNDRED
EIGHT OF THE CIVIL PRACTICE LAW AND RULES SHALL BE DISPENSED WITH CONDI-
TIONED  UPON THE COMPLAINT HAVING PROPOUNDED THE ALLEGATION SET FORTH IN
SUBDIVISION TWO OF THIS SECTION THAT THE MORTGAGED PREMISES  ARE  VACANT
AND ABANDONED.
  3.  A  JUDGMENT  OF  FORECLOSURE  AND SALE UNDER THE PROCEDURE OF THIS
SECTION SHALL NOT BE ENTERED IF THE COURT FINDS THAT:
  (A) THE PROPERTY IS NOT VACANT OR ABANDONED; OR
  (B) THE MORTGAGOR OR ANY OTHER DEFENDANT HAS FILED AN ANSWER,  APPEAR-
ANCE  OR OTHER WRITTEN OBJECTION THAT IS NOT WITHDRAWN, AND A DEFENSE OR
OBJECTION ASSERTED CONTESTS THE STATUS OF  THE  PROPERTY  AS  VACANT  OR
ABANDONED.
  4.  IF  A JUDGMENT OF FORECLOSURE AND SALE PURSUANT TO THIS SECTION IS
DENIED UPON THE COURT'S FINDING  THAT  THE  MORTGAGED  PROPERTY  IS  NOT
VACANT  AND ABANDONED, THEN ALL OTHER RIGHTS AND PROCEDURES AVAILABLE TO
A FORECLOSING PARTY PURSUANT TO THIS ARTICLE  MAY  BE  PURSUED  AND  ANY
MOTION  FOR  SUMMARY  JUDGMENT  WHICH  SHALL  HAVE BEEN GRANTED AS TO AN
ANSWER INTERPOSED SHALL STILL BE EFFECTIVE.
  5. THIS SECTION SHALL NOT PREEMPT, REDUCE OR LIMIT ANY RIGHTS OR OBLI-
GATIONS IMPOSED BY ANY LOCAL LAWS WITH RESPECT TO  PROPERTY  MAINTENANCE
AND THE LOCALITY'S ABILITY TO ENFORCE THOSE LAWS.
  S 2. This act shall take effect immediately.

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