A bill (S1579A) awaiting Gov. Hochul's signature will amend section 1307 of New York Real Property Actions and Proceedings Law ("RPAPL") & require plaintiffs, lenders, assignees, or mortgage loan servicers in a residential mortgage foreclosure action to maintain vacated foreclosed property at the commencement of a foreclosure action. 

Currently, section 1307 of the RPAPL imposes a similar duty on plaintiffs to maintain vacated foreclosed property after obtaining a judgment of foreclosure and sale through the time ownership of the vacated foreclosed property has been transferred to another party. 

It is not uncommon for residents who fall behind on their mortgage to leave or abandon their homes. As a result, lenders will commence a foreclosure action, but may delay in taking control of the vacated or abandoned property, resulting in unmaintained and deteriorating property. 

As we all know, the foreclosure process in New York State can be quite lengthy and, in many instances, it can take years for a plaintiff or lender to obtain a judgment of foreclosure and sale. 

Requiring plaintiffs or lenders to maintain abandoned or vacated foreclosed property at the start of a foreclosure proceeding ensures that the foreclosed property will not deteriorate due to lack of maintenance and upkeep and will ensure that the future owner of the foreclosed property will have a home that is in adequate, or even pristine condition, at the time of closing. 

On the other hand, plaintiffs and lenders will likely argue that this amendment places an undue burden on them since they now have to maintain a vacated property at the start of a foreclosure action, rather than towards the tail end of it. 

This could cause lenders to either: 

1. Move quickly in a foreclosure action rather than take their time, or 
2. Delay or limit foreclosure actions altogether in order to avoid the burden of maintaining a vacant or abandoned residential home at the start of a foreclosure proceeding. 

Regardless, aren't there going to be disputes as to whether a property was abandoned and whether the lender was trespassing? Would you want a lender going into your home, even if they were maintaining it, as obligated? 

Lenders would be wise to seek court orders confirming that property is abandoned and they can enter prior to acting under this bill, if it becomes law. Otherwise, they should expect to be counterclaimed for trespassing as they don't have any legal right to the property until the foreclosure proceeding is concluded. 

Stay tuned to see if Gov. Hochul signs this bill into legislation...

Starting January 2, 2022, borrowers negotiating a loan modification have a right to a single point of contact at their lender.

On November 3, 2021, Governor Hochul signed BillS671 into law, which amends Section 6-o to the banking law, and starting on January 3, 2022, upon written request by the borrower, lenders will be required to provide borrowers with a single point of contact who must provide accurate account and other information related to the foreclosure process and loss mitigation efforts.

This is huge because many mortgage modifications are functionally blocked by a lack of access to lenders rather than based upon qualification criteria. As the foreclosure moratorium is coming to an end on January 15, 2022 and a wave of foreclosures are about to hit New York State, this is a needed law for borrowers, and their attorneys, to settle cases.

• Extend residential and commercial eviction and foreclosure moratoria to January 15, 2022;
• Expand eviction protections for tenants under the COVID-19 Emergency Rental Assistance Program (CERAP);
• Create a due process mechanism for a landlord to challenge a tenant’s Hardship Declaration;
• Direct judges to require residential tenants to apply for CERAP if their hardship claim is determined to be valid;
• Extend the period covered by the Tenant Safe Harbor Act to January 15, 2022; and
• Increase funding for CERAP, Hardship Fund, and legal services for tenants facing evictions.

Eligible tenants are:

1. Tenants or occupants obligated to pay rent in their primary NYS residence;
2. Individuals who have qualified for unemployment or experienced a reduction in household income, incurred significant costs, or experienced other financial hardship due – directly or indirectly – to the COVID-19 outbreak;
3. Tenants who demonstrate a risk of experiencing homelessness or housing instability; AND
4. Tenants who have a household income at or below 80% of the area median income, adjusted for household size.

If a tenant is approved for rental assistance under CERAP, the money goes directly to the landlord. However, landlords who accept CERAP payments, must:

• Not use any prior arrears as a basis for a nonpayment eviction proceeding;
• Waive late fees;
• Not increase monthly rent due 1 year from the date the first CERAP payment is received; and
• Not evict based on an expired lease for a period of 12 months after the first CERAP payment is received, UNLESS the property is in a building with 4 or fewer units, and in which case, the landlord may decline to extend the lease only if the landlord or his immediate family intends to immediately occupy the unit for personal use as a primary residence.

Nonetheless, landlords who accept CERAP may still commence evictions against tenants who:

• Intentionally cause significant damage to the property;
• Persistently and unreasonably engage in behavior that substantially infringes on the use and enjoyment of other tenants or occupants; or
• Causes a substantial safety hazard to others.

What should landlords do now?
Start an eviction proceeding and challenge the hardship, which will either result in CERAP money or permission to continue the eviction process. Alternatively, if a landlord does not have a good faith basis to challenge the hardship or does not want to be restricted by the program’s requirements, then, a landlord should bring a breach of contract lawsuit in NYS Supreme Court against their non-paying tenants, as explained by the federal courts in Elmsford Apartment Associates LLC v. Cuomo.

Take a read of Maura McDermott's latest article in Newsday, "NY's COVID-19 foreclosure ban is set to expire, but homeowners can still get help," where she quotes our very own Leslie Mendoza, Esq.

Leslie explains that while the "[t]he state’s temporary foreclosure ban 'merely delays any kind of discussion between the borrower and the lender in terms of resolving the delinquencies,' the CFPB rule should help many homeowners get a modified loan, as long as they qualify for one."

To learn more about whether you qualify, read the article and always speak to a great lawyer.

The Town of Southampton has issued a new compliance protocol (Town Code at Chapter 262) for Foreclosure Plaintiffs in response to an increase in crime and deterioration in property appearance. 

The new law sets forth a Registration Scheme with new maintenance obligations:

• Homes are to kept free and clear of weeds, overgrown brush, trash, dead vegetation, debris, etc.
• No graffiti
• Requirements for watering, irrigation, cutting and mowing of lawn
• Pools and spas to be clear of pollutants and debris

• Locked windows, doors, and gates
• Repairs to broken windows, doors, and gates
• Designation of a property manager to maintain and perform necessary work

Penalties & Fines include:

• $1,000 fine or up to 15 days in jail (or both), for each violation
• $1,000-$5,000 fine or up to 15 days in jail (or both) for a second or subsequent violation
• $150 for first day of violation, $250 for second day of violation, $500 for third day of violation and continuing.

A new NYS law permits tenants who did not occupy a foreclosure premises at the time of the commencement of the foreclosure lawsuit to remain in occupancy for the remainder of their lease term, up to a maximum of 3 years. 

This new law gives tenants greater protection in the event that they happen to occupy a home subject to a foreclosure action, prior to their possession. The ongoing COVID-19 pandemic has caused so much chaos, disruption, and hardship to families across this nation (and the world for that matter) and the ability for families to be able to remain in a rental dwelling that is being foreclosed upon for at least the remainder of their lease and up to a maximum of 3 years, can give these families some relief and afford them a little more time to figure out their next move. 

On the other hand, this law could create delays in the purchase and sale of residential homes due to a tenant's ability to remain at a foreclosed home as referenced above. 

Would you even want to buy a house from foreclosure anymore? 

Do you support the new law that gives tenants additional rights during foreclosure? 

How much of an impact will this new bill have on future purchase and sales on foreclosed homes? 

• The Act applies to owners or mortgagors of commercial properties who:
• owns 10 or fewer commercial units (directly or indirectly; units may be in more than 1 property or building as long as total units are occupied or available for rent);
• is a business that is a resident in New York State;
• is independently owned and operated;
• is not dominant in its field; and
• employs 50 or fewer persons.
• The Act does not apply to mortgage loans backed by a state corporate governmental agency.

• The Act requires the Court or the foreclosing party (depending on the status of the foreclosure proceeding) to provide the borrower with a statement of protections available under the Act in 14-point type (“Hardship Declaration”).
• More importantly, the borrower must complete the Hardship Declaration and provide it to the foreclosing party to be afforded relief under the Act, if the borrower is suffering a financial hardship including, but not limited to:
• a significant loss of revenue;
• a significant increase in necessary expenses related to providing protective equipment to prevent transmission of COVID-19;
• moving expenses and difficulty securing alternative property; or
• a commercial tenants’ default on a significant amount of rent since March 1, 2020,
• The borrower’s submission of the Hardship Declaration is a rebuttable presumption of a financial hardship for purposes of establishing a defense.

• If the borrower provides a Hardship Declaration to the foreclosing party/foreclosing party’s agent, the foreclosing party is prohibited from commencing any foreclosure proceeding until May 1, 2021.
• If the borrower does not provide a hardship affidavit, the lender is required to file the following to commence a foreclosure proceeding:
• affidavit of service of the Hardship Declaration in; and
• affidavit of the foreclosing party / foreclosing party’s agent attesting that the foreclosing party or his agent did not receive a Hardship Declaration from the Borrower.
• If the Court determines that the foreclosing party failed to provide the Hardship Declaration to the borrower, the court shall stay the foreclosure for at least 10 days to allow the borrower to complete the Hardship Declaration.

• Refers to proceedings commenced before March 7, 2020 or commenced within 30 days of March 10, 2021.
• Stayed for at least 60 days to May 9, 2021, or to such later date the Court deems necessary to provide borrower time to complete and submit the hardship declaration.
• Court shall issue stay and mail copy of the Hardship Declaration to the borrower.
• If the borrower provides a completed Hardship Declaration to the court or lender, the foreclosure proceedings are stayed until May 1, 2021.

Post-Judgment

• In any foreclosure proceeding in which a judgment of sale has already been issued, execution is stayed until the court holds a status conference with the parties.
• If the borrower provides a Hardship Declaration, the execution of the warrant is stayed until May 1, 2021.

The headlines are in - the federal foreclosure / eviction moratoriums are extended to June 30, 2021 from March. This extension applies to 70% of single family home mortgages.

The subtext is that we have a foreclosure / eviction crisis on the horizon. According to the White House "1 in 5 renters is behind on rent and just over 10 million homeowners are behind on mortgage payments." 

If you just use a little deduction, you will quickly realize that almost every block across America is going to see foreclosures and evictions. In the micro, this will result in firesales, which will reduce comparable home prices across the board. In the macro, it will decrease property upkeep and maintenance, which will create a secondary impact on the greater community's desirability and pricing. 

That's the bad. 

The good is that it's going to be a buyer's market soon.

We need to start thinking about strategies to Purchase Property Post-Pandemic. 

What's your strategy? 

Here is the scenario - You are trying to sell a property and you order a payoff from your mortgage company, but that payoff quote comes in much higher than you believe that it should. 

You are in a real bind. 

You need to sell, but you don't want to overpay. What should you do?

This is particularly problematic where you are in default on your mortgage and the lender has started tacking on exorbitant penalties and attorneys' fees.

The answer is that you better protest the payoff, in writing, while requesting an itemization and then, you should pay it anyway. 

If you do, you can then file a motion for an accounting and ask the court to compute the appropriate fees, charges, expenses, and other payments due under the mortgage. 

If you don't, your motion to the court for an accounting will probably be denied in light of the voluntary payment doctrine, equitable estoppel, and waiver bar the accounting.

Again, protest and pay is the strategy based upon the appellate court decision in US Bank v. Cordero. 

Are you selling a house in foreclosure? If so, pay attention. 

On 12/28/2020, the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 became law. 

This law effectively stops all residential foreclosures in NYS until May 1, 2021, but it does nothing about the borrower's obligation to repay their loan.  

Do you think that makes sense?

Isn’t that just delaying the inevitable foreclosure crisis?

Shouldn't something be done about the loan too? 

Here is how the law works – a homeowner needs to submit a hardship declaration to their lender and magic, no more foreclosure until May.

The Details:

o   Either the court or lender (depending on foreclosure status) must provide the borrower with a statement explaining the law.

o   To qualify, a borrower must be suffering a financial hardship including, such as

§  A significant loss of household income;

§  Increase in necessary expenses;

§  Childcare responsibilities;

§  Moving expenses; and/or

§  Other circumstances negatively affecting the borrower’s ability to find meaningful employment.

o   Sample hardship declarations will be available on the Office of Court Administration website.

o   New Foreclosures – If the borrower does not provide the declaration, the lender is required to file all sorts of documents to commence a foreclosure proceeding, including:

§  Affidavit of Service of the Hardship Declaration in English and in the borrower’s primary language.

§  Affidavit of Service of RPAPL 1303 and 1304 notices; and

§  Affidavit of the Petitioner/Petitioner’s agent attesting that the Petitioner or his agent did not receive a Hardship Declaration from the Borrower.

o   Existing Foreclosures – Paused (stayed) for at least 60 days to provide the borrower time to complete and submit the hardship declaration.

o   This also stops foreclosure sales if the case already was decided by the court in a judgment.

Make no mistake, this new law does NOT excuse borrowers from paying the mortgage. 

So, what is the point? 

Isn’t it misleading borrowers into digging an even bigger financial hole?

What do you think? 

1. Commencing a commercial eviction proceeding against any commercial tenant for the nonpayment of rent;
2. Commencing a foreclosure of any commercial mortgage for nonpayment of such mortgage; and
3. Enforcing of such eviction or foreclosure.

1. Standing of plaintiff (owner / holder of note on date of commencement or authorized agent of such owner / holder pursuant to Pooling and Servicing Agreement or other agreement)
2. Record admissibility (swearing to business records of another entity; failure to attach business records to affidavits)
3. RPAPL 1303 / 1304 / 1305 / 1306 compliance
4. Acceleration / Deacceleration (statute of limitations) 
5. Notices tendered in satisfaction of note terms
6. Lis Pendens filing
7. Payment history for default calculations / date (requisite missed months for default requirement in note / aligned with notices / statute of limitations)
8. Default on Answer with time since settlement conference for late answer availability
9. Service / personal jurisdiction issues
10. Pleadings requirements (Certificate of Merit - CPLR 3012-B, RPAPL 1302)