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

                                  1000

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced by M. of A. WEINSTEIN, CLARK, COLTON, WEPRIN, CASTRO, JAFFEE,
  WRIGHT  --  Multi-Sponsored  by  -- M. of A. ABINANTI, PERRY, SCHIMEL,
  SWEENEY -- read once and referred to the Committee on Judiciary

AN ACT to amend the  real  property  actions  and  proceedings  law,  in
  relation to standing to commence an action to foreclose a mortgage

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

  Section 1. Subdivision 1 of section 1302 of the real property  actions
and  proceedings  law, as amended by chapter 472 of the laws of 2008, is
amended to read as follows:
  1. Any complaint served in a proceeding  initiated  pursuant  to  this
article  relating  to  a high-cost home loan or a subprime home loan, as
such terms are defined in section six-l and six-m of  the  banking  law,
respectively,  must  contain  an affirmative allegation that at the time
the proceeding is commenced, the plaintiff[:
  (a) is the owner and holder of the subject mortgage and note,  or  has
been  delegated the authority to institute a mortgage foreclosure action
by the owner and holder of the subject mortgage and note; and
  (b)] has complied with all of the provisions of section  five  hundred
ninety-five-a  of  the banking law and any rules and regulations promul-
gated thereunder, section six-l or six-m of the banking law, and  SUBDI-
VISION  TWO  OF  SECTION  THIRTEEN  HUNDRED  TWO-A  AND section thirteen
hundred four of this article.
  S 2. The real property actions  and  proceedings  law  is  amended  by
adding a new section 1302-a to read as follows:
  S 1302-A. STANDING TO COMMENCE AN ACTION ON A HOME LOAN.  1. NO PERSON
SHALL  HAVE  STANDING  TO COMMENCE AN ACTION PURSUANT TO THIS ARTICLE TO
FORECLOSE ON A HOME LOAN, AS DEFINED IN  PARAGRAPH  (A)  OF  SUBDIVISION
FIVE  OF SECTION THIRTEEN HUNDRED FOUR OF THIS ARTICLE, UNLESS IT IS THE
OWNER AND HOLDER OF THE SUBJECT MORTGAGE AND NOTE, OR HAS BEEN DELEGATED

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

                                                           LBD03701-01-3

A. 1000                             2

THE AUTHORITY TO INSTITUTE A MORTGAGE FORECLOSURE ACTION  BY  THE  OWNER
AND  HOLDER  OF  THE  SUBJECT  MORTGAGE  AND  NOTE.  NOTWITHSTANDING THE
PROVISIONS OF SUBDIVISION (E) OF RULE THIRTY-TWO HUNDRED ELEVEN  OF  THE
CIVIL  PRACTICE LAW AND RULES, ANY DEFENSE BASED ON THE PLAINTIFF'S LACK
OF STANDING IN A FORECLOSURE PROCEEDING SHALL NOT BE WAIVED IF A DEFEND-
ANT FAILS TO RAISE THE DEFENSE IN A RESPONSIVE  PLEADING  OR  PRE-ANSWER
MOTION TO DISMISS.
  2.  EVERY  SUMMONS AND COMPLAINT TO COMMENCE A FORECLOSURE ACTION ON A
HOME LOAN, AS DEFINED IN PARAGRAPH (A) OF SUBDIVISION  FIVE  OF  SECTION
THIRTEEN  HUNDRED  FOUR  OF  THIS  ARTICLE, SHALL INCLUDE AN AFFIRMATIVE
ALLEGATION THAT AT THE TIME THE PROCEEDING IS COMMENCED,  THE  PLAINTIFF
IS  THE  OWNER  AND HOLDER OF THE SUBJECT MORTGAGE AND NOTE, OR HAS BEEN
DELEGATED THE AUTHORITY TO INSTITUTE A MORTGAGE  FORECLOSURE  ACTION  BY
THE OWNER AND HOLDER OF THE SUBJECT MORTGAGE AND NOTE.  IN ADDITION, THE
PLAINTIFF SHALL PLEAD IN ITS COMPLAINT THAT THE ORIGINALS OF THE SUBJECT
MORTGAGE  AND  NOTE  ARE  IN  ITS POSSESSION AND CONTROL, OR THAT OF THE
HOLDER OR CUSTODIAN, OR THAT THE PLAINTIFF HAS COMPLIED WITH SUBDIVISION
FIVE OF THIS SECTION AND THAT SUCH PLAINTIFF IS  OTHERWISE  ENTITLED  TO
ENFORCE THE SUBJECT MORTGAGE AND NOTE PURSUANT TO LAW.
  3. THERE SHALL BE FILED WITH EVERY SUMMONS AND COMPLAINT TO COMMENCE A
FORECLOSURE ACTION ON A HOME LOAN, AS DEFINED IN PARAGRAPH (A) OF SUBDI-
VISION FIVE OF SECTION THIRTEEN HUNDRED FOUR OF THIS ARTICLE:
  (A) A COPY OF THE ORIGINAL SUBJECT MORTGAGE AND NOTE, AND PROOF OF THE
OWNERSHIP  THEREOF  INCLUDING ALL ORIGINAL ENDORSEMENTS, ASSIGNMENTS AND
TRANSFERS OF SUCH MORTGAGE AND NOTE; AND
  (B) IF APPLICABLE, PROOF OF DELEGATION OF AUTHORITY FROM THE OWNER AND
HOLDER OF THE SUBJECT MORTGAGE AND NOTE TO INSTITUTE A MORTGAGE FORECLO-
SURE ACTION ON BEHALF OF SUCH OWNER AND HOLDER.
  4. THE COURT SHALL MAKE AN AFFIRMATIVE FINDING OF STANDING WHICH SHALL
BE INCLUDED IN THE JUDGMENT OF FORECLOSURE AND SALE ON A HOME  LOAN,  AS
DEFINED IN PARAGRAPH (A) OF SUBDIVISION FIVE OF SECTION THIRTEEN HUNDRED
FOUR OF THIS ARTICLE.
  5.  IF THE ORIGINAL NOTE OR ANY ORIGINAL ENDORSEMENTS, ASSIGNMENTS AND
TRANSFERS OF SUCH MORTGAGE AND NOTE ARE LOST OR  OTHERWISE  UNAVAILABLE,
THE  PLAINTIFF MUST COMPLY WITH APPLICABLE LAW TO ESTABLISH THE RIGHT TO
ENFORCE THE MORTGAGE AND NOTE INCLUDING THE UNIFORM COMMERCIAL CODE.
  S 3. This act shall take effect immediately, except that  section  one
of this act and subdivisions 2 and 3 of section 1302-a of the real prop-
erty  actions  and proceedings law, as added by section two of this act,
shall take effect on the ninetieth day after it shall have become a law.