Assembly Bill A10395

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

                                  10395

                          I N  A S S E M B L Y

                              May 25, 2012
                               ___________

Introduced  by M. of A. WEINSTEIN, V. LOPEZ, ROBINSON -- Multi-Sponsored
  by -- M. of A.  ABINANTI, CLARK, ENGLEBRIGHT, GALEF -- (at request  of
  the  Office  of Court Administration) -- read once and referred to the
  Committee on Judiciary

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 SUBJECT TO FORECLOSURE, THE COMPLAINT SHALL  BE
ACCOMPANIED  BY  A  CERTIFICATE, EXECUTED BY THE ATTORNEY FOR THE PLAIN-
TIFF, CERTIFYING THAT THE ATTORNEY HAS REVIEWED THE FACTS  OF  THE  CASE
AND  THAT,  BASED ON CONSULTATION WITH AUTHORIZED REPRESENTATIVES OF THE
PLAINTIFF AND THE ATTORNEY'S REVIEW OF  PERTINENT  DOCUMENTS,  INCLUDING
THE  MORTGAGE,  SECURITY AGREEMENT AND NOTE OR BOND UNDERLYING THE MORT-
GAGE EXECUTED BY  THE  RESIDENTIAL  DEFENDANT  AND  ALL  INSTRUMENTS  OF
ASSIGNMENT,  IF ANY, OR ANY OTHER INSTRUMENT OF INDEBTEDNESS, THERE IS A
REASONABLE BASIS FOR THE COMMENCEMENT OF SUCH ACTION AND THAT THE PLAIN-
TIFF IS CURRENTLY THE CREDITOR ENTITLED TO  ENFORCE  RIGHTS  UNDER  SUCH
DOCUMENTS. SUCH CERTIFICATE SHALL ATTACH A COPY OF THE MORTGAGE, SECURI-
TY  AGREEMENT  AND  NOTE OR BOND UNDERLYING THE MORTGAGE EXECUTED BY THE
RESIDENTIAL DEFENDANT AND ALL INSTRUMENTS OF ASSIGNMENT.
  (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) THE PROVISIONS OF SUBDIVISION (D) OF RULE  3015  OF  THIS  ARTICLE
SHALL  NOT BE APPLICABLE TO A DEFENDANT RESIDENT OF THE PROPERTY SUBJECT
TO FORECLOSURE WHO IS NOT REPRESENTED BY AN ATTORNEY.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD15520-02-2
              

A. 10395                            2

  (D) 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 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 RESIDENT  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  resol-
ution  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 immediately 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.