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Section 1302 - Foreclosure of certain residential mortgages1. Any complaint served in a proceeding initiated on a residential mortgage covering a one to four family dwelling pursuant to this article 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 promulgated thereunder, and section six-l or six-mof the banking law, for loans governed by section six-l or six-m of the banking law, and section thirteen hundred four of this article for all residential mortgage loans covering a one to four family dwelling.2. It shall be a defense to an action to foreclose a mortgage 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, for loans governed by these provisions.
N.Y. Real Prop. Acts. Law § 1302
Section 1302-A - Defense of lack of standing; not waived
Notwithstanding the provisions of subdivision (e) of rule thirty-two hundred eleven of the civil practice law and rules, any objection or defense based on the plaintiff's lack of standing in a foreclosure proceeding related to a home loan, as defined in paragraph (a) of subdivision six of section thirteen hundred four of this article, shall not be waived if a defendant fails to raise the objection or defense in a responsive pleading or pre-answer motion to dismiss. A defendant may not raise an objection or defense of lack of standing following a foreclosure sale, however, unless the judgment of foreclosure and sale was issued upon defendant's default.
Notice to Tenants of Buildings in Foreclosure
New York State Law requires that we provide you this notice about the foreclosure process. Please read it carefully.
We, (name of foreclosing party), are the foreclosing party and are located at (foreclosing party's address). We can be reached at (foreclosing party's telephone number).
The dwelling where your apartment is located is the subject of a foreclosure proceeding. If you have a lease, are not the owner of the residence, and the lease requires payment of rent that at the time it was entered into was not substantially less than the fair market rent for the property, you may be entitled to remain in occupancy for the remainder of your lease term. If you do not have a lease, you will be entitled to remain in your home until ninety days after any person or entity who acquires title to the property provides you with a notice as required by section 1305 of the Real Property Actions and Proceedings Law. The notice shall provide information regarding the name and address of the new owner and your rights to remain in your home. These rights are in addition to any others you may have if you are a subsidized tenant under federal, state or local law or if you are a tenant subject to rent control, rent stabilization or a federal statutory scheme.
ALL RENT-STABILIZED TENANTS AND RENT-CONTROLLED TENANTS ARE PROTECTED UNDER THE RENT REGULATIONS WITH RESPECT TO EVICTION AND LEASE RENEWALS. THESE RIGHTS ARE UNAFFECTED BY A BUILDING ENTERING FORECLOSURE STATUS. THE TENANTS IN RENT-STABILIZED AND RENT-CONTROLLED BUILDINGS CONTINUE TO BE AFFORDED THE SAME LEVEL OF PROTECTION EVEN THOUGH THE BUILDING IS THE SUBJECT OF FORECLOSURE. EVICTIONS CAN ONLY OCCUR IN NEW YORK STATE PURSUANT TO A COURT ORDER AND AFTER A FULL HEARING IN COURT.
If you need further information, please call the New York State Department of Financial Services' toll-free helpline at (enter number) or visit the Department's website at (enter web address).
6. The department of financial services shall prescribe the telephone number and web address to be included in either notice.7. The department of financial services shall post on its website or otherwise make readily available the name and contact information of government agencies or non-profit organizations that may be contacted by mortgagors for information about the foreclosure process, including maintaining a toll-free helpline to disseminate the information required by this section.
N.Y. Real Prop. Acts. Law § 1303
YOU COULD LOSE YOUR HOME TO FORECLOSURE.
PLEASE READ THE FOLLOWING NOTICE CAREFULLY.
Borrower's address
Loan Number:
Property Address:
Dear Borrower(s):
As of ___________, we as your lender or servicer claim that your reverse
mortgage loan is ___ days in default. Under New York State Law, we are
required to send you this notice to inform you that you may be at risk
of losing your home.
We, the lender or servicer of your loan, are claiming that your reverse
mortgage loan is in default because you have not complied with the
following conditions of your loan:
_____ You are not occupying your home as your principal residence
_____ You did not submit the required annual certificate of occupancy
_____ The named borrower on the reverse mortgage has died
_____ You did not pay property taxes
{Servicer name} paid your property taxes for the following
time periods:___________________________
______________________ {quarteryear}
_____ You did not maintain homeowner's insurance
{Servicer name} purchased homeowner's insurance for you on the
following date(s) and for the following cost(s):
_____ You did not pay watersewer charges
{Servicer name} paid watersewer charges for you on the
_____ You did not make required repairs to your home
If the claim is based on your failure to pay property or water and sewer
charges or maintain homeowner's insurance, you can cure this default by
making the payment of $____________ for the advancements we made towards
these payments on your behalf.
You have the right to dispute the claims listed above by contacting us,
by calling ___________ or sending a letter to __________________. This
may include proof of payments made for property taxes or water and sewer
charges or a current declaration page from your insurance company, or
any other proof to dispute the servicer's claim.
If you are in default for failure to pay property charges (property
taxes, homeowner's insurance andor watersewer charges) you may qualify
for a grant, loan, or re-payment plan to cure the default balance owed.
If you are in default due to the death of your spouse, you may be
considered an eligible Non-Borrowing Spouse under a HUD program which
allows you to remain in your home for the rest of your life.
If you are over the age of 80 and have a long term illness, you may also
qualify for the At-Risk Extension, which allows you to remain in your
home for one additional year and requires an annual re-certification.
Attached to this notice is a list of government-approved housing counseling agencies and legal services in your area which provide free counseling. You can also call the NYS Office of the Attorney General's Home-owner Protection Program (HOPP) toll-free consumer hotline to be connected to free housing counseling services in your area at 1-855-HOME-456 (1-855-466-3456), or visit their website at http:www.aghomehelp.com. A statewide listing by county is also available at http:www.dfs.ny.govconsumermortg nys np counseling agencies.htm. You may also call your local Department of Aging for a referral or call 311 if you live in New York City.
Qualified free help is available; watch out for companies or people who
charge a fee for these services.
You may also contact us directly at __________ and ask to discuss all
possible options to allow you to cure your default and prevent the foreclosure of your home. While we cannot ensure that a resolution is possible, we encourage you to take immediate steps to try to achieve a resolution. The longer you wait, the fewer options you may have.
If you have not taken any actions to resolve this matter within 90 days
from the date this notice was mailed, we may commence legal action
against you (or sooner if you cease to live in the dwelling as your
primary residence).
If you need further information, please call the New York State Department of Financial Services' toll-free helpline at 877-226-5697 or visit the Department's website at http:www.dfs.ny.gov.
IMPORTANT: You have the right to remain in your home until you receive a
court order telling you to leave the property. If a foreclosure action
is filed against you in court, you still have the right to remain in the
home until a court orders you to leave. You legally remain the owner of
and are responsible for the property until the property is sold by you
or by order of the court at the conclusion of any foreclosure
proceedings. This notice is not an eviction notice, and a foreclosure
action has not yet been commenced against you.
A lender, assignee or mortgage loan servicer of a reverse mortgage
home loan which provides notice to the borrower as required by this
subdivision is not required to provide notice to such borrower with
regard to such loan pursuant to subdivision one of this section.
N.Y. Real Prop. Acts. Law § 1304
Section 1305 - Notice to tenants1. Definitions. For the purposes of this section, the following definitions shall apply: (a) Residential real property shall mean real property located in this state improved by any building or structure that is or may be used, in whole or in part, as the home or residence of one or more persons, and shall include any building or structure used for both residential and commercial purposes.(b) Successor in interest shall mean any person or entity who or which acquires title in a residential real property as a result of a judgment of foreclosure and sale, or other disposition during the pendency of the foreclosure proceeding, or at any time thereafter but prior to the expiration of the time period as provided for in subdivision two of this section.(c) Tenant shall mean any person who appears as a lessee on a lease of one or more dwelling units of a residential real property that is subordinate to the mortgage on such residential real property; or who at such time is a party to an oral or implied rental agreement with the mortgagor and obligated to pay rent to the mortgagor or such mortgagor's representative, for the use or occupancy of one or more dwelling units of a residential real property.2. Notwithstanding any other provision of law, a tenant of a unit not subject to rent control or rent stabilization shall have the right to remain in occupancy of the unit of the subject residential real property where he or she resides on the date of service of the notice required by subdivision three of this section for the greater of: (a) a period of ninety days from the date of the service of such notice; or (b) for the remainder of the lease term if the tenant occupied the premises at the commencement of the foreclosure action or received a notice pursuant to section thirteen hundred three of this article; or (c) for the remainder of the lease term, provided that the lease agreement was entered into in good faith pursuant to this section and federal law, up to a maximum of three years, for tenants who did not occupy the premises at the commencement of the foreclosure action and therefore did not receive the original notice of service required pursuant to section thirteen hundred three of this article; provided that if a successor in interest who acquires title to such residential real property intends to occupy a single unit as his or her primary residence and the unit is not subject to a federal or state statutory system of subsidy or other federal or state statutory scheme, the successor may limit for one unit only, the tenant's right of occupancy to ninety days.
For a lease to qualify under this subdivision, the tenant under such lease may not be the owner of the residential real property, and such lease must require the payment of rent for such unit that is not substantially less than the fair market rent for the unit, unless the unit is subject to federal or state statutory system of subsidy or other federal or state statutory scheme. A tenant under paragraph (a) , (b), or (c) of this subdivision shall continue such tenancy subject to any limitations in this subdivision under the same terms and conditions as were in effect at the time of entry of the judgment of foreclosure and sale, or if no such judgment was entered, upon the terms and conditions that were in effect at the time of the transfer of ownership of such property. For purposes of this section, fair market rent shall mean rent for a unit of residential real property of similar size, location and condition.
3. Notwithstanding any other provision of law, and consistent with subdivision two of this section, a successor in interest of residential real property shall provide written notice to all tenants in the same manner as required by subdivision four of section thirteen hundred three of this article: (a) that they are entitled to remain in occupancy of such property for the remainder of the lease term, or a period of ninety days from the date of mailing of such notice, whichever is greater, on the same terms and conditions as were in effect at the time of entry of the judgment of foreclosure and sale, or if no such judgment was entered, upon the terms and conditions as were in effect at the time of transfer of ownership of such property; and (b) of the name and address of the new owner. Any person or entity who or which becomes a successor in interest after the issuance of the ninety-day notice provided for in this subdivision, shall notify all tenants of its name and address and shall assume such interest subject to the right of the tenant to maintain possession as provided in this subdivision.4. Acceptance of rental payments by any successor in interest on terms provided in subdivision three of this section shall not affect the right of the successor in interest to evict such tenant, as provided by law, upon the expiration of the time period as provided in subdivision two of this section or earlier if the tenant does not pay rent pursuant to any lease or oral or implied rental agreement in effect at the time of issuance of the judgment of foreclosure, or if no such judgment was issued, upon the terms and conditions as were in effect at the time of transfer of ownership of such property.5. The rights conferred upon a tenant by subdivision two of this section shall be in addition to any other rights of such tenant, under law, including those rights conferred upon: (a) any tenant not named in the foreclosure action; or (b) any tenant whose tenancy is subsidized by the federal government, this state or any political subdivision of this state; or (c) any tenant whose tenancy is subject to rent control, rent stabilization, or federal statutory schemes.
N.Y. Real Prop. Acts. Law § 1305
Section 1306 - Filing with superintendent1. Each lender, assignee or mortgage loan servicer shall file with the superintendent of financial services (superintendent) within three business days of the mailing of the notice required by subdivision one of section thirteen hundred four of this article or subsection (f) of section 9-611 of the uniform commercial code the information required by subdivision two of this section. Notwithstanding any other provision of the laws of this state, this filing shall be made electronically as provided for in subdivision three of this section. Any complaint served in a proceeding initiated pursuant to this article shall contain, as a condition precedent to such proceeding, an affirmative allegation that at the time the proceeding is commenced, the plaintiff has complied with the provisions of this section.2. Each filing delivered to the superintendent shall be on such form as the superintendent shall prescribe, and shall include at a minimum, the name, address, last known telephone number of the borrower, and the amount claimed as due and owing on the mortgage, and such other information as will enable the superintendent to ascertain the type of loan at issue. The superintendent may subsequently request such readily available information as may be reasonably necessary to facilitate a review of whether the borrower might benefit from counseling or other foreclosure prevention services.3. Within one hundred eighty days of the effective date of this section, or such later time as the superintendent may determine, the superintendent shall develop with the assistance of the commissioner of the division of housing and community renewal, an electronic database that shall be capable of receiving all filings required by this section.4. The information provided to the superintendent pursuant to this section shall not be subject to article six of the public officers law or paragraphs (a), (c) and (d) of subdivision one or subdivision six of section ninety-four of the public officers law. All such information shall be used by the superintendent exclusively for the purposes of monitoring on a statewide basis the extent of foreclosure filings within this state, to perform an analysis of loan types which were the subject of a pre-foreclosure notice and directing as appropriate available public and private foreclosure prevention and counseling services to borrowers at risk of foreclosure. The superintendent may share information contained in the database with housing counseling agencies designated by the division of housing and community renewal as well as with other state agencies with jurisdiction over housing, for the purpose of coordinating or securing help for borrowers at risk of foreclosure.5. The superintendent is hereby authorized to promulgate such rules and regulations as shall be necessary to implement the purposes of this section.
N.Y. Real Prop. Acts. Law § 1306
N.Y. Real Prop. Acts. Law § 1307
Section 1308 - Inspecting, securing and maintaining vacant and abandoned residential real property
Notwithstanding any other provision of law to the contrary, the following subdivisions of this section shall only apply to vacant and abandoned one to four family residential real property, and any duties and responsibilities so prescribed by this section shall only apply to the first lien mortgage holder. Vacant and abandoned residential real property shall be defined pursuant to section thirteen hundred nine of this article. For each calendar year this section shall not apply to state or federally chartered banks, savings banks, savings and loan associations, or credit unions which: (1) originate, own, service and maintain their mortgages or a portion thereof; and (2) have less than three-tenths of one percent of the total loans in the state which they either originate, own, service, or maintain for the calendar year ending December thirty-first of the calendar year ending two years prior to the current calendar year. For any state or federally chartered banks, savings banks, savings and loan associations, or credit unions which originate, own, service and maintain between three-tenths of one percent and five-tenths of one percent of the total loans in the state which they either originate, own, service, or maintain for the calendar year ending December thirty-first of the calendar year ending two years prior to the current calendar year, the application of this section shall be prospective only.
No local law, ordinance, or resolution shall impose a duty to maintain vacant and abandoned property upon any state or federally chartered bank, savings bank, savings and loan association or credit union that originates, owns, services or maintains a mortgage related to such property for which the provisions of this section, pursuant to the opening paragraph of this section, do not apply.
N.Y. Real Prop. Acts. Law § 1308
N.Y. Real Prop. Acts. Law § 1309
N.Y. Real Prop. Acts. Law § 1310
Section 1311 - Necessary defendants
Each of the following persons, whose interest is claimed to be subject and subordinate to the plaintiff's lien, shall be made a party defendant to the action:
1. Every person having an estate or interest in possession, or otherwise, in the property as tenant in fee, for life, by the curtesy, or for years, and every person entitled to the reversion, remainder, or inheritance of the real property, or of any interest therein or undivided share thereof, after the determination of a particular estate therein.2. Every person having a right of dower or an inchoate right of dower in the real property or any part or share thereof.3. Every person having any lien or incumbrance upon the real property which is claimed to be subject and subordinate to the lien of the plaintiff.4. Where the mortgage is upon any of the public utilities regulated by the public service law, the public service commission.
N.Y. Real Prop. Acts. Law § 1311
Section 1312 - Representative defendants1. Where a trust has been created by will or by deed or by declaration of trust, the trustees of such trust who shall have duly qualified shall be made parties defendant and shall represent all persons who are or may become entitled to a beneficial interest in the property or an undivided share thereof or in the proceeds of sale thereof under and by virtue of said trust and all remaindermen who are or may become entitled to the reversion, remainder or inheritance of the property or the proceeds of sale thereof either before or after the termination of said trust, without naming such beneficiaries or remaindermen as parties defendant. Service of the summons and complaint upon any one of such duly qualified trustees shall be sufficient service upon the trust estate and upon all persons who are or may become entitled to a beneficial interest in the property or an undivided share thereof or in the proceeds of sale thereof and all remaindermen who are or may become entitled to the reversion, remainder or inheritance of the property or the proceeds of sale thereof either before or after the termination of said trust.2. Whenever the duly qualified executors under a will are made parties defendant they shall represent all of the legatees named in the will and the successors and assigns of such legatees, irrespective of whether or not such legacies are a charge upon the real property, and such legatees, their successors and assigns need not be named as parties defendant. Service of the summons and complaint upon any one of such duly qualified executors shall be sufficient service upon the executors under said will and upon all legatees named in said will, their successors and assigns, irrespective of whether or not such legacies are a charge upon the real property.
N.Y. Real Prop. Acts. Law § 1312
Section 1313 - Permissible defendants
Any person who is liable to the plaintiff for payment of the debt secured by the mortgage may be made a defendant in the action. The state may be made a party defendant to an action for the foreclosure of a mortgage on real property, where it has an interest in or a lien on the property subsequent to the lien of the mortgage sought to be foreclosed in said action, in the same manner as a private person.
N.Y. Real Prop. Acts. Law § 1313
Section 1315 - Action by owner of junior participating interest
An action may be maintained by the owner of a junior participating share or interest in a bond or note secured by a mortgage on real, or on real and personal property, for the payment of principal and interest and for foreclosure of such bond or note and mortgage in its entirety, or in the alternative, subject to the interest of the owner of the senior share, notwithstanding that the entire mortgage debt may be due and payable according to its terms, in the event that the owner of the senior share, to whom is given the right in the participating agreement to enforce such bond or note and mortgage shall fail or refuse to commence an action for the enforcement of such bond or note and mortgage in any manner permitted thereby, after ten days' written notice and demand to commence any such action, following default in the performance of any of the terms and covenants of such bond or note and mortgage. Upon such failure or refusal, such junior participant may exercise any and all options and remedies provided in such bond or note and mortgage or otherwise available to any holder thereof.