NY State Senate Bill S5928

Archive: Last Bill Status - In Senate Committee Housing, Construction And Community Development Committee

Introduced
In Committee
On Floor Calendar
- Passed Senate
- Passed Assembly
Delivered to Governor
Signed/Vetoed by Governor

Your Voice

Please enter your contact information

First Name *

Last Name *

Email Address *

A valid email address is required.

Home address search or enter your address manually *

Home address is used to determine the senate district in which you reside. Your support or opposition to this bill is then shared immediately with the senator who represents you.

Optional services from the NY State Senate:

Create an account. An account allows you to officially support or oppose key legislation, sign petitions with a single click, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.

Include a custom message for your Senator? (Optional)

Enter a message to your senator. Many New Yorkers use this to share the reasoning behind their support or opposition to the bill. Others might share a personal anecdote about how the bill would affect them or people they care about.

Leave this field blank

Actions

view actions (2)

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2018	referred to housing, construction and community development
May 08, 2017	referred to housing, construction and community development

S5928 (ACTIVE) - Details

See Assembly Version of this Bill:: A1371
Current Committee:: Senate Housing, Construction And Community Development
Law Section:: Real Property Actions and Proceedings Law
Laws Affected:: Amd §1302, RPAP L
Versions Introduced in Other Legislative Sessions:: 2015-2016: A10373
2019-2020: S3216, A5611
2021-2022: S5785, A2502

S5928 (ACTIVE) - Summary

Makes the affirmative allegation provisions for high-cost loans and subprime home loans, applicable to all mortgage foreclosures.

S5928 (ACTIVE) - Sponsor Memo

 BILL NUMBER:  S5928

 TITLE OF BILL :  An act to amend the real property actions and
proceedings law, in relation to foreclosure of mortgages

 SUMMARY OF PROVISIONS OF BILL :

Section 1: Amends section 1302 of RPAPL to require that foreclosing
plaintiffs plead ownership of the note and mortgage applicable to all
homeowners instead of limited to only homeowners with subprime and
high-cost home loans.

It also ensures that RPAPL 1302 defenses are applicable to all
homeowners instead of limited to just homeowners with subprime and
high-cost home loans.

Section 2: Sets the effective date on the first of January after it
shall have become law.

 JUSTIFICATION :

There has been a nationwide increase in foreclosures throughout the
country. However, many of the foreclosure actions initiated by lenders
and trusts to obtain the securitized debt obligation (the property),"
have called into question the inherent legality of the proceedings,
due to the plaintiffs lack of "standing" and in many cases it is

simply not clear who actually owns the mortgage or debt.  Despite the
fact that in order to have an appropriate foreclosure proceeding the
filing party must legally have "standing to commence a foreclosure
action" against a mortgagor or borrower, many lenders and trusts alike
continue to move forward with bringing a legal action against
borrowers when many of these lenders don't even own the debts in the
first place.

In New York, numerous court decisions have held that if the borrower
doesn't raise standing upon answering the foreclosure action, the
defense of standing is waived for the borrower. See, HSBC Bank USA v
Dammond, 59 AD3d 679 (2nd Dept 2009). Unfortunately, many times the
borrower often has no way of knowing who owns the loan, and despite
the clear requirement that the plaintiff own the note, if the
defendant borrower does not raise the issue initially in an answer or
pre-answer motion to dismiss up front, they may never be able to raise
it again. In this situation, an entity foreclosing can foreclose on a
home they don't have any legal right to foreclose on.

The proposed bill would require plaintiffs in a foreclosure action to
plead ownership of the note and mortgage for all home loans and would
enable all homeowners to avail the statutory defenses to protect their
homes, as opposed to just those homeowners with subprime or high-cost
home loans.

 LEGISLATIVE HISTORY :

2016: A.10373 -A.Rules

 FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS :

None.

 EFFECTIVE DATE :
First of January after it shall have become law.

S5928 (ACTIVE) - Bill Text download pdf


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

                                  5928

                       2017-2018 Regular Sessions

                            I N  S E N A T E

                               May 8, 2017
                               ___________

Introduced  by  Sen.  AVELLA -- 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 foreclosure of mortgages

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

  Section  1.  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:
  §  1302. Foreclosure of [high-cost home loans and subprime home loans]
MORTGAGES. 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  bank-
ing  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 section
thirteen hundred four of this article.
  2. It shall be a defense to an action to foreclose a mortgage  [for  a
high-cost  home  loan  or subprime home loan] that the terms of the home
loan or the actions of the lender violate any provision of section six-l
or six-m of the banking law or section thirteen  hundred  four  of  this
article.
  §  2. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a  law  and  shall  apply  to
actions commenced on or after such date.

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

                                                           LBD02864-01-7

Comments

Open Legislation is a forum for New York State legislation. All comments are subject to review and community moderation is encouraged.

Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity, hate or toxic speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Attempts to intimidate and silence contributors or deliberately deceive the public, including excessive or extraneous posting/posts, or coordinated activity, are prohibited and may result in the temporary or permanent banning of the user. Comment moderation is generally performed Monday through Friday. By contributing or voting you agree to the Terms of Participation and verify you are over 13.

The New York State Senate

senate Bill S5928

Sponsored By

Archive: Last Bill Status - In Senate Committee Housing, Construction And Community Development Committee

Your Voice

Actions

S5928 (ACTIVE) - Details

S5928 (ACTIVE) - Summary

S5928 (ACTIVE) - Sponsor Memo

S5928 (ACTIVE) - Bill Text download pdf

Comments

senate Bill S5928

Share this bill

Sponsored By

Tony Avella

Archive: Last Bill Status - In Senate Committee Housing, Construction And Community Development Committee

Your Voice

Actions

S5928 (ACTIVE) - Details

S5928 (ACTIVE) - Summary

S5928 (ACTIVE) - Sponsor Memo

S5928 (ACTIVE) - Bill Text download pdf

Comments