NY State Senate Bill 2011-S7571

Archive: Last Bill Status - In Senate Committee Rules Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 05, 2012	referred to rules

2011-S7571 (ACTIVE) - Details

See Assembly Version of this Bill:: A10395
Current Committee:: Senate Rules
Law Section:: Civil Practice Law and Rules
Laws Affected:: Add §3012-b, amd R3408, CPLR
Versions Introduced in 2013-2014 Legislative Session:: A5582

2011-S7571 (ACTIVE) - Summary

Relates to requiring certificates of merit in certain residential foreclosure actions.

2011-S7571 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S7571

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

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her
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,
executed by the plaintiff's attorney, declaring that the attorney has
reviewed the merits of the action and that, based upon consultation
with authorized representatives of the plaintiff or the attorney's
review of pertinent documents, the attorney has concluded on the
basis of that consultation or review that there is a reasonable basis
for commencement of the action. Also, the plaintiff's attorney must

attach to the complaint copies of the relevant instruments of
indebtedness and any instruments of assignment. 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, including any UCC Article 9
document evidencing a security interest in the note, and all
instruments of assignment, if any, are in place at the commencement
of the action.

This measure, which would have no fiscal impact on the State, would
take effect immediately.

LEGISLATIVE HISTORY:
None. New proposal.

2011-S7571 (ACTIVE) - Bill Text download pdf

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

                                  7571

                            I N  S E N A T E

                              June 5, 2012
                               ___________

Introduced  by  COMMITTEE ON RULES -- (at request of the Office of Court
  Administration) -- read twice and ordered printed, and when printed to
  be committed to the Committee on Rules

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.
  (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

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

                                                           LBD15520-03-2

S. 7571                             2

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.

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Senate Bill S7571

Sponsored By

Archive: Last Bill Status - In Senate Committee Rules Committee

2011-S7571 (ACTIVE) - Details

2011-S7571 (ACTIVE) - Summary

2011-S7571 (ACTIVE) - Sponsor Memo

2011-S7571 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S7571

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Sponsored By

Archive: Last Bill Status - In Senate Committee Rules Committee

2011-S7571 (ACTIVE) - Details

2011-S7571 (ACTIVE) - Summary

2011-S7571 (ACTIVE) - Sponsor Memo

2011-S7571 (ACTIVE) - Bill Text download pdf

Comments