2023 New York Laws › RPA - Real Property Actions and Proceedings › Article 13 - Action to Foreclose a Mortgage › 1309 - Expedited Application for Judgment of Foreclosure and Sale for Vacant and Abandoned Property.

§ 1309. Expedited application for judgment of foreclosure and sale for
vacant  and  abandoned  property.  1.  The  plaintiff in any foreclosure
proceeding may make an application by notice of motion or order to  show
cause  for  a  judgment  of foreclosure and sale on the grounds that the
subject property is vacant and abandoned. The motion or  order  to  show
cause  shall  include  the  last  known  address of the borrower and the
property address. Notwithstanding subdivision (m)  of  rule  thirty-four
hundred  eight  of  the civil practice law and rules no such application
may be made until the defendant's time to answer the  complaint  in  the
foreclosure  proceeding  shall  have  expired. Such application shall be
served on defendant, regardless of whether  a  defendant  has  filed  an
answer  or  appeared  in  the case. Such application shall: (a) state in
bold letters, on the first page of the notice of motion or order to show
cause: (i) "The plaintiff in this lawsuit has applied for  an  expedited
judgment  of foreclosure and sale of your property on the ground that it
is vacant and abandoned"; (ii) "Your property may be foreclosed upon and
sold without any further proceedings if  you  do  not  respond  to  this
motion  by  or  on  the  return date, which is ___"; (iii) "You have the
right to stay in your property until a court orders you to  leave";  and
(iv)  "You  may  respond  to  this motion by either submitting a written
document or by appearing in court on the return date."; (b) be supported
by affidavit and other proof, including but not limited to: (i) proof of
ownership of the mortgage and the note, (ii) photographs evidencing that
the subject property is vacant  and  abandoned  as  provided  for  under
subdivision two of this section, and (iii) if available, utility company
records  or  other  documentation  evidencing  the  vacant and abandoned
status  of  the  premises;  (c)  set  forth,  supported  by  documentary
evidence, the sums alleged to be due and owing upon the subject mortgage
and  note,  including  the  current principal balance and a detailed and
itemized account of each fee, each cost, and a calculation  of  interest
accrued;  and  (d) request that the court confirm the sums due and owing
upon the subject mortgage and note without appointment of a referee. The
court shall promptly send a notice to the defendant of  the  plaintiff's
notice  of  motion or order to show cause for a judgement of foreclosure
and sale on  the  grounds  that  the  subject  property  is  vacant  and
abandoned.  The  notice  shall  advise  the defendant that the lender is
asking the court to expedite a judgement of foreclosure and sale of  his
or  her property on the ground that it is vacant and abandoned and about
the time and place of the court date. The notice  shall  be  in  a  form
prescribed by the courts, or, at the discretion of the courts.
2.  (a)  As  used  in  this section, "vacant and abandoned residential
property"  means  residential  real  property,  as  defined  in  section
thirteen  hundred  five  of  this  article,  with  respect  to which the
plaintiff has proven, by preponderance of  the  evidence,  that  it  has
conducted  at least three consecutive inspections of such property, with
each inspection conducted twenty-five to thirty-five days apart  and  at
different  times  of the day, and at each inspection (i) no occupant was
present and there was no  evidence  of  occupancy  on  the  property  to
indicate  that  any persons are residing there; and (ii) the residential
real property was not being maintained in a manner consistent  with  the
standards  set  forth  in  New  York property maintenance code chapter 3
sections 301, 302 (excluding 302.2, 302.6, 302.8), 304.1, 304.3,  304.7,
304.10, 304.12, 304.13, 304.15, 304.16, 307.1 and 308.1.
(b) Residential real property will also be deemed vacant and abandoned
if:
(i)  A  court  or other appropriate state or local governmental entity
has formally determined, following due notice to  the  borrower  at  the

property  address  and  any other known addresses, that such residential
real property is vacant and abandoned; or
(ii)  Each  borrower  and  owner has separately issued a sworn written
statement, expressing his or  her  intent  to  vacate  and  abandon  the
property  and  an  inspection  of  the  property  shows  no  evidence of
occupancy to indicate that any persons are residing there.
(c) Evidence of lack of occupancy shall include but not be limited  to
the  following  conditions:  (i)  overgrown  or  dead  vegetation;  (ii)
accumulation of newspapers, circulars, flyer or  mail;  (iii)  past  due
utility  notices,  disconnected utilities, or utilities not in use; (iv)
accumulation of trash, refuse or other debris;  (v)  absence  of  window
coverings  such  as  curtains,  blinds,  or  shutters;  (vi) one or more
boarded, missing or broken windows; (vii) the property is open to casual
entry or trespass; or (viii) the property has a  building  or  structure
that  is or appears structurally unsound or has any other condition that
presents a potential hazard or danger to the safety of persons.
(d) Residential real property will not be deemed vacant and  abandoned
if, on the property:
(i)  There  is an unoccupied building that is undergoing construction,
renovation,  or  rehabilitation  that  is   proceeding   diligently   to
completion;
(ii)  There  is a building occupied on a seasonal basis, but otherwise
secure;
(iii) There is a building that is secure, but  is  the  subject  of  a
probate  action,  action  to  quiet title, or other ownership dispute of
which the servicer has actual notice;
(iv) There is a building damaged by a natural disaster and one or more
owner intends to repair and reoccupy the property; or
(v) There is a building occupied by the mortgagor, a relative  of  the
mortgagor or a tenant lawfully in possession.
3. In connection with an application for a judgment of foreclosure and
sale  on  the  ground that the subject property is vacant and abandoned,
the court may require the plaintiff or an agent  to  appear  to  provide
testimony in support of the application.
4. The court shall make a written finding as soon as practicable as to
whether the plaintiff has proved that the property to be foreclosed upon
pursuant to this section is vacant and abandoned pursuant to subdivision
two  of  this  section and, if the court determines that the property is
vacant and abandoned, it shall set forth: (a) the evidence  relied  upon
by  the  court in finding that the property is vacant and abandoned; (b)
the evidence showing that the plaintiff 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 of  same;  and  (c)
the sums due and owing upon the subject mortgage and note after a review
of  the  detailed  and  itemized  account  of each fee, each cost, and a
calculation of interest accrued.
5. With respect  to  foreclosure  actions  brought  pursuant  to  this
section:
(a)  A  judgment of foreclosure and sale shall not be entered pursuant
to this section if the mortgagor or any other  defendant  has  filed  an
answer,  appearance,  other  written objection that is not withdrawn, or
has otherwise demonstrated  an  intention  to  contest  the  foreclosure
action.
(b)  A  denial  of a judgment of foreclosure and sale pursuant to this
section where the court does not find that  the  mortgaged  property  is
vacant  and  abandoned  shall  not  be  deemed  to  be on the merits for
purposes of any other proceeding with respect to such real property.
6. It  shall  be  unlawful  for  a  lender,  assignee,  mortgage  loan
servicer,  or  a third party agent or other person acting on behalf of a
lender, assignee or mortgage loan servicer  to  enter  residential  real
property  that  is  not vacant and abandoned for the purpose of forcing,
intimidating,   harassing   or   coercing  a  lawful  occupant  of  such
residential property to vacate that property  in  order  to  render  the
property  vacant  and  abandoned,  or  to  otherwise  force, intimidate,
harass, or coerce a lawful occupant  of  residential  real  property  to
vacate  that  property  so  that  it may be deemed vacant and abandoned,
provided however, a lender, assignee, mortgage loan servicer, or a third
party agent or other person acting on behalf of a  lender,  assignee  or
mortgage  loan  servicer  who  peacefully  enters a vacant and abandoned
property in order to render the property vacant and abandoned  shall  be
immune   from  liability  when  such  lender,  assignee,  mortgage  loan
servicer, third party agent or  other  person  acting  on  behalf  of  a
lender,  assignee or mortgage loan servicer is making reasonable efforts
to comply with this section.
7. The chief administrative judge of the courts shall adopt such rules
as he or she deems necessary to expeditiously implement  the  provisions
of this section.