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.

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 law that passed the House in May and is before the Senate (The Comprehensive Debt Collection Improvement Act or “CDCIA”) could force lenders to slam the breaks on issuing mortgages to co-op purchasers.

This law reverses a 2019 decision from the US Supreme Court, Obduskey V. McCarthy, and would cause the Fair Debt Collection Practices Act (FDCPA) to apply to businesses engaged in non-judicial foreclosures, which applies to co-op mortgage loans.

In other words, the CDCIA would hamstring co-op lenders' ability to utilize third-parties to collect their loans (e.g., the law limits the number of times a debtor may be reached, it requires that contact be ceased when the debtor so requests, it creates tons of exposure to damages and attorneys' fees, etc.). It would also suppress important information from a credit report, such as forbidding credit scoring models from using medical debt as a negative factor.

As you can certainly deduce, if the CDCIA passes the Senate and is signed by the President, lenders will likely have stricter qualification terms and may even raise rates on co-op mortgage loans that qualify.

Are the protections in the CDCIA worth the law's chilling effect on co-op loans? Should the Senate change the law? Should it just vote it down?

Do you think the CDCIA will lead to fewer co-op transactions?

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. 

Subdivision two of Section 39 of the Banking Law is hereby modified to provide that it shall be deemed an unsafe and unsound business practice if, in response to the COVID-19 pandemic, any bank which is subject to the jurisdiction of the Department shall not grant a forbearance to any person or business who has a financial hardship as a result of the COVID-19 pandemic for a period of ninety days... The Superintendent of the Department of Financial Services shall ensure under reasonable and prudent circumstances that any licensed or regulated entities provide to any consumer in the State of New York an opportunity for a forbearance of payments for a mortgage for any person or entity facing a financial hardship due to the COVID-19 pandemic. The Superintendent shall promulgate emergency regulations to require that the application for such forbearance be made widely available for consumers, and such application shall be granted in all reasonable and prudent circumstances solely for the period of such emergency. 

• What does subject to the jurisdiction of the Department mean in the Order? Specifically, there are two charting systems for banks; federal and state. The Federal Office of the Comptroller of the Currency controls federally chartered banks pursuant to the National Bank Act. Generally, you can tell that a bank is federally chartered because it has the initials N.A. after its name. As a result, NYS doesn't have jurisdiction over federally chartered banks so how does this work if you have a loan through a federal bank like many NYS residents do?
• When is the Superintendent promulgating emergency regulations and how are consumers going to understand those regulations if attorneys at law were not labeled as essential services under the quarantine and therefore are becoming less available by the minute? Yes, some law firms are open and working remotely, but for how long with many clerks' offices closed and all court deadlines tolled (yesterday's Executive Order 202.8), including "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding."
• By adding the words business & entity, is it intended that this applies to both residential and commercial property?
• Is there a limit on the amount of the mortgage for this to be applicable?
• After the forbearance is over, what happens to the money deferred (i.e., back end balloon, recapitalized, ballooned immediately, something else)?
• Will the Superintendent of DFS be answering these questions or someone else; plus, will the answers be part of a regulation or just advisory? 

• Waiving mortgage payments based on financial hardship;
• No negative reporting to credit bureaus;
• Grace period for loan modification;
• No late payment fees or online payment fees; and
• Postponing or suspending foreclosures.

While the Plan does bring immediate relief to homeowners affected by the coronavirus (COVID-19), the Plan does not simply waive mortgage payments due in the next 90 days. In his press conference, Governor Cuomo clarified, "We're not exempting people from the mortgage payments. We're just adjusting the mortgage to include those payments on the back end."

Currently, specific procedures on how to apply and/or how to qualify under the Plan is yet to be published, so stay tuned. Until then, borrowers should retain counsel to apply and negotiate with their mortgage lender or servicer for a forbearance plan to prevent incurring interest and fees for missed payments.

Mortgage relief plans are also in place for FHA, Fannie Mae, and Freddie Mac mortgages. Similar to New York State's Plan, however, borrowers should be aware that the mortgage payments are not automatically waived nor placed on hold and they should retain counsel to apply and negotiate with their mortgage servicer immediately.

1. Marketing & offering of reverse mortgage loans are regulated to avoid unfair or deceptive practices;
2. Consumer protection materials are required to be included in marketing such loans & the Superintendent is authorized to promulgate rules & regulations to protect consumers;
3. Loans that pay taxes, mortgage insurance, homeowners insurance, or other property obligations must provide the borrower with periodic account statements & a required warning notice;
4. When the escrowed money for payments of obligations are depleted to 10% or less, the borrower will get a telephone & mailed notice about the borrowers obligations; 
5. Restricts lenders from paying borrowers obligations on the property (taxes, mortgage insurance, homeowners insurance, etc.) as advance payments & only permits lenders to pay when there are arrears;
6. Restricts foreclosures based on primary residence restrictions; 
7. Requires both the lender & the borrower to be represented by an attorney at the closing of the loan; 
8. Borrowers who are injured from a violation by a lender have a private right of action for treble damages & reasonable attorneys' fees; & 
9. Violating this statute by a lender works a complete defense for a borrower in a foreclosure action.

1.  There are no missed mortgage payments within the last six months;
2. There is not more than one missed mortgage payment within the last twelve months;
3. The house is a primary residence, 1-unit second home, or a 1- to 4- unit investment property;
4. It is a Fannie Mae or Freddie Mac-owned loan;
5. The loan was made on or before May 31, 2009; and
6. The loan-to-value is greater than 80%.

1. There are no missed mortgage payments within the last six months;
2. There is not more than one missed mortgage payment within the last twelve months;
3. The borrower must have a source of income;
4.  It is a Fannie Mae or Freddie Mac-owned loan; and
5. The borrower must receive a benefit, such as reduced monthly mortgage payments.