Monday, August 26, 2013

Foreclosure Requirements After 7/31/13

At the end of last month, the Governor signed into law Bill A5582-2013. This Bill added CPLR 3012-B and amended CPLR 3408. Effectively, this Bill eliminates prior rules with respect to attorneys filing the Attorney Affirmation pursuant to AO/413/11. Specifically, this Bill changes the time period for the requirement from accompanying the Request for Judicial Intervention (RJI) to accompanying the Complaint. As a result, a shadow docket can be eliminated of cases that were commenced, but cannot move to be assigned to a Judge. So, this is a great change in operations for foreclosures in this state. Additionally, it adds precise sanctions for failure at CPLR 3012-B(D) thereby taking out the guesswork for Judges that has plagued the State for the last years.

CPLR 3012-B now reads as follows: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  BEACCOMPANIED  BY  A  CERTIFICATE, EXECUTED BY THE ATTORNEY FOR THE PLAIN-TIFF, CERTIFYING THAT THE ATTORNEY HAS REVIEWED THE FACTS  OF  THE  CASEAND  THAT,  BASED ON CONSULTATION WITH AUTHORIZED REPRESENTATIVES OF THEPLAINTIFF AND THE ATTORNEY'S REVIEW OF  PERTINENT  DOCUMENTS,  INCLUDINGTHE  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 AREASONABLE 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 SINGLECERTIFICATE 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 ANDDOCUMENTS  AS  REQUIRED BY SUBDIVISION (A) OF THIS SECTION AND THE COURTFINDS, UPON THE MOTION OF ANY PARTY OR ON ITS OWN MOTION  ON  NOTICE  TOTHE PARTIES, THAT SUCH PAPERS AND DOCUMENTS OUGHT TO HAVE BEEN PROVIDED,THE  COURT  MAY  DISMISS THE COMPLAINT OR MAKE SUCH FINAL OR CONDITIONALORDER WITH REGARD TO SUCH FAILURE AS IS JUST INCLUDING BUT  NOT  LIMITEDTO  DENIAL  OF  THE  ACCRUAL OF ANY INTEREST, COSTS, ATTORNEYS' FEES ANDOTHER FEES, RELATING TO THE UNDERLYING MORTGAGE DEBT. ANY SUCH DISMISSALSHALL NOT BE ON THE MERITS. 


Amended CPLR 3048 now reads as follows: (a) In any residential foreclosure action involving a home loan assuch term is defined in section thirteen hundred four of the real prop-erty actions and proceedings law, in which the defendant is a residentof the property subject to foreclosure, PLAINTIFF SHALL FILE PROOF OFSERVICE WITHIN TWENTY DAYS OF SUCH SERVICE, HOWEVER SERVICE IS MADE, ANDthe court shall hold a mandatory conference within sixty days after thedate when proof of service UPON SUCH DEFENDANT RESIDENT is filed withthe county clerk, or on such adjourned date as has been agreed to by theparties, for the purpose of holding settlement discussions pertaining tothe relative rights and obligations of the parties under the mortgageloan documents, including, but not limited to determining whether theparties can reach a mutually agreeable resolution to help the defendantavoid losing his or her home, and evaluating the potential for a resol-ution in which payment schedules or amounts may be modified or otherworkout options may be agreed to, and for whatever other purposes thecourt deems appropriate.

Friday, August 23, 2013

NY STAR Registration ONLINE

The New York State Tax Department just unveiled an easy, fast and secure online STAR Registration platform.

This is great news because the deadline for completing the registration is December 31, 2013, so homeowners go check it out now.

Short Sales & Deeds in Lieu added to Hope LoanPort

In offering their organized and systematic portal from modifications to Deeds in Lieu and Short Sales hopefully homeowners will realize increased success.

Today, our firm received this email:
------------

Hello Hope LoanPort Partners,
We have responded to request from portal users by adding a robust processing platform for liquidation workouts, intended to match our existing functionality for retention workouts.  Such a liquidation portal requires significant development to not only allow for short sales and deeds in lieu as workout types, but also include system availability for liquidation-specific documents, statuses, and data fields.

We released a pilot program of the liquidation case type back in the spring.  We are now proceeding with a release of the Liquidation functionality for all registered housing counselors and authorized third-party representatives.  Effective with our upcoming system release on August 30, all counselors registered with the portal will have access to submit Liquidation cases.  This functionality will be limited to those select servicers who will be accepting these cases.

Participating Servicers: Select Portfolio Services; Nationstar; M&T Bank; Caliber; LoanCare; RCS; HSBC; Ocwen; Resurgent; Bayview

When processing a Liquidations case, users will need to be familiar with the enhancements to HLP, such as:

New Case Type: Liquidation
New Case Statuses: Property Listed, Offer Tendered, Short Sale Approved, Short Sale Denied, Offer Rejected, etc. (See PDF for full list*)
New Document Types: Listing Agreement, Appraisal, BPO, etc. (See PDF for full list*)
New Data Fields: Seller Realtor Name, List Price, Closing Date, Title Company, etc. (See PDF for full list*)
*A PDF overview of all items and can be viewed from this link.

We will be issuing system Release Notes in advance of the anticipated go-live date of August 30.

If you would like to request additional training on the liquidation case type, please contact Nora Conklin, Hope LoanPort Project Coordinator, at nconklin@hopeloanportal.org.
Sincerely,
Samantha Sue Friedman - Director of Product Development & Delivery
sfriedman@hopeloanportal.org
www.hopeloanportal.org

Monday, August 12, 2013

The Real Deal Prematurely Pronounces the Death of the Term "Licensed Real Estate Broker"

In an August 6, 2013 article, The Real Deal conclusively proclaimed that real estate brokers, associate brokers, and salespersons no longer have to place the term "licensed" in front of their license type.  Quoting Alfred Fazio of Capuder, Fazio, Giacoia, LLP, the article reasoned that "[i]t seemed particularly redundant to require agents to use 'licensed' before real estate salesperson, real estate associate broker, or real estate broker.  In a similar example, it would be as if requiring attorneys to advertise themselves as 'licensed.'"

Not so fast my friend.  While The Real Deal's advice is sound for a large percentage of situations where a salesperson or broker would describe their license type, brokers can't do away with the requirement altogether.  A Department of State Opinion Letter can interpret statutes or regulations, and the Department of State can issue and alter regulations; however, an Opinion Letter cannot override the express language of a statute instituted by the legislature.

RPL § 441-a(3) requires real estate brokers to "conspicuously post on the outside of the building in which [their place of business] is conducted a sign of sufficient size to be readable from the sidewalk indicating the name and the business of the applicant as a licensed real estate broker, unless said office shall be located in an office, apartment or hotel building, in which event the name and words 'licensed real estate broker' shall be posted in the space provided for posting of names and occupants of the building, other than the mail box."

Where does that leave us?  The Opinion Letter relieves brokers, associate brokers, and salespersons from the duty of including the term "licensed" in their advertising and other descriptions of their license type, but it cannot eliminate the explicit requirements of RPL § 441-a(3).  Real estate brokers, associate brokers, and salespersons can rejoice in the news that their business cards and for-sale signs can be one word shorter, but the industry can't throw away with the term "licensed" completely.  If you're a broker, you still need to have the full title "Licensed Real Estate Broker" displayed on the outside of your place of business.

Wednesday, August 7, 2013

The President: "A Better Bargain for the Middle Class: Housing"

When the President speaks on housing, its a must to know the facts. The Fact Sheet from the President's speech on August 5, 2013 lays out the following key goals:
  1. An increase in refinancing before interest rates go up 
  2. Cutting red tape
  3. Increasing home values by fixing our broken immigration system
  4. Helping the hardest hit communities rebuild
  5. Increasing decent & affordable options for renters
Of particular interest was the President's goal to put private capital at the center of the housing finance system by stating that current "government guarantees [of] more than 80% of all mortgages through Fannie Mae and Freddie Mac and FHA, is unsustainable".

Friday, August 2, 2013

The Real Deal's Not So Real Deal - Bill Introduction Means Very Little (Foreign Buyer Legislation)

The Real Deal reported yesterday on proposed legislation to reform the Foreign Investment in Real Property Tax Act (FIRPTA) in a manner that would have you believe that the Bill was destined to be law. This is a common theme with news media when they exaggerate the impact of a story to gain readership. However, The Real Deal is typically better than this and they should know better as their readership counts on them to lead the brokerage profession in New York City and beyond.

While the article does contain a great topic that should be discussed, whether there should be alien landholder disabilities in the US, The Real Deal should make clear what many know, that Bills rarely pass. In fact, accordingly to govtrack.us, the Bill has only a "2% chance of being enacted". So, discuss the topic, but know its not the law.

Remember, in real estate the rule is No Case, No Statute, No Talk - know the law as it governs your every move.

With respect to alien landholdings, its great that the Bill seeks to reduce restrictions on foreign investment, but remember those restrictions were created for some really good reasons in the first place. To illustrate, would you like a foreign national to own our fresh water supply; how about our trees or nuclear arsenal? What about taxes, should a foreigner be required to pay taxes and how can the Government make one accountable. To discuss these thoughts and more, stay tuned for Lieb School's real estate continuing education course, Foreign Buyers, which is coming soon.

Check out 88.3 at 5:30pm Today and Tomorrow for Real Life

Tune in today and tomorrow 8/2 and 8/3 at 5:30pm WPPB Peconic Public Broadcasting 88.3- Check out Real Life hosted by John Christopher from Brown Harris Stevens. John will be interviewing Andrew Lieb concerning a multitude of issues facing Hamptonites in the real estate market from commercial valuation to simply the new regulations requiring a bank to verify ability to repay a loan.

Thursday, August 1, 2013

Smart Housing - Its the Key

In our recent push for real estate professionals to know what is out there in smart technology for the house, we direct your attention to a door lock that uses bluetooth "to let you unlock your door by touching it".

Check out a great article on NFC-powered door locks and open a door into the future.

Attempting to modify 2nd mortgage? Read Supplemental Directive 13-05

2nd Mortgage Modifications - Supplemental Directive 13-05

Treasury just issued Supplemental Directive 13-05, which addresses the scenario of "when a borrower’s first lien is modified under HAMP and the servicer of the corresponding second lien is a 2MP participant, the 2MP servicer must offer to modify or extinguish the borrower’s second lien according to a defined protocol".

Specifically, this Directive addresses the following topics:
  • Matching Second Liens to First Lien GSE Standard Modifications
  • Dodd-Frank Certification Requirement for 2MP
  • Incorporating HFA Payments into the NPV Result for HAMP Tier 2
  • Handbook Mapping Clean-Up
So, if you or your client is attempting to modify a second mortgage, read this directive as its the roadmap to success.