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A05582 Summary:

BILL NO    A05582A

SAME AS    SAME AS S04530-A

SPONSOR    Weinstein (MS)

COSPNSR    Robinson, Colton, Perry, O'Donnell, Stevenson, Barrett, Steck,
           Crespo, McDonald, Fahy, Sepulveda, Solages, Roberts, Titus, Rosa

MLTSPNSR   Clark, Galef, Gottfried, Jaffee, Lentol, Markey, Peoples-Stokes,
           Schimel, Wright

Add S3012-b, amd R3408, CPLR & Department of Law

Provides for the filing of a certificate of merit in any residential
foreclosure action involving a home loan in which the defendant is a resident
of the property subject to the foreclosure.
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A05582 Actions:

BILL NO    A05582A

03/04/2013 referred to judiciary
03/12/2013 reported 
03/14/2013 advanced to third reading cal.109
05/22/2013 passed assembly
05/22/2013 delivered to senate
05/22/2013 REFERRED TO JUDICIARY
06/17/2013 recalled from senate
06/17/2013 RETURNED TO ASSEMBLY
06/17/2013 vote reconsidered - restored to third reading
06/17/2013 amended on third reading 5582a
06/21/2013 repassed assembly
06/21/2013 returned to senate
06/21/2013 COMMITTED TO RULES
06/21/2013 SUBSTITUTED FOR S4530A
06/21/2013 3RD READING CAL.1643
06/21/2013 PASSED SENATE
06/21/2013 RETURNED TO ASSEMBLY
07/19/2013 delivered to governor
07/31/2013 signed chap.306
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A05582 Votes:

A05582 05/22/2013 111/26
AbbateYColtonYGarbariYKearnsYMillmanYRiveraYStevensAB
AbinantYCookYGibsonERKellnerYMontesaYRobertsYStirpeY
ArroyoYCorwinNOGiglioYKimYMorelleYRobinsoYSweeneyY
AubryYCrespoYGjonajYKolbNOMosleyYRodriguERTediscoNO
BarclayNOCrouchNOGlickYLalorNOMoyaYRosaYTenneyER
BarrettYCurranYGoldfedERLavineYNojayNORosenthYThieleY
BarronYCusickNOGoodellNOLentolYNolanYRozicYTitoneY
BenedetYCymbrowYGottfriYLiftonYOaksNORussellYTitusY
BlankenNODenDekkYGrafYLopezYO'DonneYRyanYWalterY
BorelliNODinowitERGuntherYLupardoYOrtizYSaladinYWeinsteY
BoylandERDiPietrYHawleyNOLupinacYOtisYSantabaYWeisenbY
BraunstYDupreyNOHeastieYMageeYPalmesaNOScarborYWeprinY
BrennanYEnglebrYHennessYMagnareYPaulinYSchimelYWrightER
BrindisYEspinalYHevesiYMaiselYPeoplesYSchimmiYZebrowsY
BronsonYFahyYHikindYMalliotNOPerryYSepulveYMr SpkrY
Brook-KYFarrellYHooperYMarkeyYPretlowYSimanowY
BuchwalYFinchNOJacobsYMayerYQuartYSimotasY
ButlerNOFitzpatNOJaffeeYMcDonalYRaYSkartadY
CahillYFriendNOJohnsNOMcDonouYRabbittYSkoufisY
CamaraYGabryszYJordanNOMcKevitYRaiaYSolagesY
CerettoYGalefYKatzNOMcLaughNORamosYStecNO
ClarkERGanttERKavanagYMillerYReilichNOSteckY

A05582A06/21/2013 108/22
AbbateYColtonYGarbariYKearnsYMillmanYRiveraYStevensAB
AbinantYCookYGibsonYKellnerYMontesaYRobertsYStirpeER
ArroyoERCorwinNOGiglioYKimYMorelleYRobinsoERSweeneyY
AubryYCrespoYGjonajERKolbNOMosleyYRodriguYTediscoNO
BarclayNOCrouchNOGlickYLalorNOMoyaYRosaERTenneyNO
BarrettYCurranYGoldfedERLavineYNojayNORosenthYThieleY
BarronYCusickYGoodellNOLentolYNolanYRozicERTitoneY
BenedetYCymbrowYGottfriYLiftonYOaksNORussellYTitusY
BlankenNODenDekkERGrafYLopezYO'DonneYRyanYWalterER
BorelliYDinowitYGuntherYLupardoYOrtizYSaladinYWeinsteY
BoylandABDiPietrNOHawleyYLupinacYOtisYSantabaYWeisenbY
BraunstYDupreyNOHeastieYMageeYPalmesaNOScarborYWeprinER
BrennanYEnglebrYHennessYMagnareYPaulinYSchimelYWrightY
BrindisYEspinalYHevesiYMaiselYPeoplesERSchimmiYZebrowsY
BronsonYFahyYHikindERMalliotYPerryYSepulveERMr SpkrY
Brook-KYFarrellYHooperYMarkeyERPretlowYSimanowER
BuchwalYFinchNOJacobsYMayerYQuartYSimotasY
ButlerNOFitzpatYJaffeeYMcDonalYRaYSkartadY
CahillYFriendYJohnsNOMcDonouYRabbittYSkoufisY
CamaraYGabryszYJordanNOMcKevitYRaiaNOSolagesY
CerettoYGalefYKatzYMcLaughNORamosYStecNO
ClarkYGanttYKavanagYMillerYReilichNOSteckY

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A05582 Memo:

BILL NUMBER:A5582A

TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to residential foreclosure actions

This measure is being introduced at the request of the Chief Judge of
the State and the Attorney General upon the recommendation of the
Chief Administrative Judge's Advisory Committee on Civil Practice.

This measure would add a new section 3012-b to the CPLR in relation to
residential foreclosure actions. This new section would create a
procedure whereby the plaintiff lender's attorney must take certain
steps to ascertain that his or her client has standing to maintain the
action. Specifically, before commencing such an action, he or she must
be assured that the plaintiff he or she represents holds the
instrument of indebtedness in the action. To evidence that the
plaintiff's attorney has received such assurance, the complaint he or
she files in the action must be accompanied by a certificate, signed
by the plaintiff's attorney, declaring that the attorney has reviewed
the merits of the action and that, based upon consultation with
representatives of the plaintiff or the attorney's review of pertinent
documents, the attorney has concluded to the best of the attorney's
knowledge, information and belief there is a reasonable basis for
commencement of the action. Also, if not attached to the complaint,
the plaintiff's attorney must attach to the certificate copies of the
relevant instruments of indebtedness and any instruments of
modification, extension, consolidation and assignment.

Where the required documents are lost whether by destruction, theft or
otherwise, the attorney shall attach to the certificate supplemental
affidavits by the attorney or by a representative of plaintiff. In
such a case, the plaintiff's obligations under the New York uniform
commercial code are not replaced or abrogated. This measure would also
amend rule 3408 of the CPLR to require a plaintiff to file proof of
service within 20 days of service.

This amendment will supply the necessary ingredient to ensure
participation by the parties in the mandatory foreclose conference
with the court.  We believe that, in addition to helping the bar by
clarifying in statute the plaintiff attorney's obligation to the court
in a residential foreclosure action, this measure is an appropriate
public policy response to the crisis in foreclosure cases. Statutory
reform is needed to ensure the integrity of the mortgage foreclosure
process and eliminate the cases brought without standing or merit.
This measure seeks to prevent completely the problem of "shadow
dockets" in residential foreclosure actions, a problem unforeseen at
the time the recent affirmations rule was promulgated by
administrative order.  Under this measure, the trial court would have
reasonable assurance that all of the instruments of indebtedness
underpinning these actions, and all instruments of assignment, if any,
are in place at the commencement of the action.

This measure shall take effect in 30 days and shall apply to actions
commenced on or after such effective date; provided, however that the
amendments to subdivision (a) of rule 3408 of the civil practice law
and rules made by section two of this act shall not affect the


expiration of such subdivision and shall be deemed to expire
therewith.

2013 Legislative History:

Senate 4530 (Senator Klein) (ref to Judiciary) Assembly 5582 (M. of A.
Weinstein) (PASSED)

2012 Legislative History:

S. 7571 (Rules) (ref to Rules) A. 10395 (M. of A. Weinstein) (Passed)
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A05582 Text:

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                        5582--A
                                                               Cal. No. 109

                              2013-2014 Regular Sessions

                                 I N  A S S E M B L Y

                                     March 4, 2013
                                      ___________

       Introduced  by  M.  of A. WEINSTEIN, ROBINSON, COLTON, PERRY, O'DONNELL,
         STEVENSON, BARRETT, STECK, CRESPO, McDONALD, FAHY  --  Multi-Sponsored
         by  --  M.  of  A.  CLARK,  GALEF,  GOTTFRIED, JAFFEE, LENTOL, MARKEY,
         PEOPLES-STOKES, SCHIMEL, WRIGHT -- (at request of the Office of  Court
         Administration)  -- (at request of the Department of Law) -- read once
         and referred to the Committee on Judiciary -- passed by  Assembly  and
         delivered  to the Senate, recalled from the Senate, vote reconsidered,
         bill amended, ordered reprinted, retaining its place on the  order  of
         third reading

       AN  ACT  to amend the civil practice law and rules, in relation to resi-
         dential foreclosure actions

         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:

    1    Section 1. The civil practice law and rules is amended by adding a new
    2  section 3012-b to read as follows:
    3    S  3012-B.  CERTIFICATE  OF  MERIT  IN CERTAIN RESIDENTIAL FORECLOSURE
    4  ACTIONS. (A) IN ANY RESIDENTIAL  FORECLOSURE  ACTION  INVOLVING  A  HOME
    5  LOAN,  AS  SUCH  TERM IS DEFINED IN SECTION THIRTEEN HUNDRED FOUR OF THE
    6  REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, IN WHICH THE DEFENDANT  IS  A
    7  RESIDENT  OF THE PROPERTY WHICH IS SUBJECT TO FORECLOSURE, THE COMPLAINT
    8  SHALL BE ACCOMPANIED BY A CERTIFICATE, SIGNED BY THE  ATTORNEY  FOR  THE
    9  PLAINTIFF,  CERTIFYING  THAT  THE ATTORNEY HAS REVIEWED THE FACTS OF THE
   10  CASE AND THAT, BASED ON CONSULTATION WITH REPRESENTATIVES OF THE  PLAIN-
   11  TIFF  IDENTIFIED  IN THE CERTIFICATE AND THE ATTORNEY'S REVIEW OF PERTI-
   12  NENT DOCUMENTS, INCLUDING THE MORTGAGE, SECURITY AGREEMENT AND  NOTE  OR
   13  BOND  UNDERLYING  THE MORTGAGE EXECUTED BY DEFENDANT AND ALL INSTRUMENTS
   14  OF ASSIGNMENT, IF ANY, AND ANY OTHER INSTRUMENT OF INDEBTEDNESS  INCLUD-
   15  ING  ANY MODIFICATION, EXTENSION, AND CONSOLIDATION, TO THE BEST OF SUCH
   16  ATTORNEY'S KNOWLEDGE, INFORMATION AND BELIEF THERE IS A REASONABLE BASIS
   17  FOR THE COMMENCEMENT OF SUCH ACTION AND THAT THE PLAINTIFF IS  CURRENTLY
   18  THE  CREDITOR  ENTITLED  TO ENFORCE RIGHTS UNDER SUCH DOCUMENTS.  IF NOT

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD08975-11-3
       A. 5582--A                          2

    1  ATTACHED TO THE SUMMONS AND COMPLAINT IN THE ACTION, A COPY OF THE MORT-
    2  GAGE, SECURITY AGREEMENT  AND  NOTE  OR  BOND  UNDERLYING  THE  MORTGAGE
    3  EXECUTED BY DEFENDANT AND ALL INSTRUMENTS OF ASSIGNMENT, IF ANY, AND ANY
    4  OTHER  INSTRUMENT OF INDEBTEDNESS INCLUDING ANY MODIFICATION, EXTENSION,
    5  AND CONSOLIDATION SHALL BE ATTACHED TO THE CERTIFICATE.
    6    (B) WHERE A CERTIFICATE IS REQUIRED PURSUANT TO THIS SECTION, A SINGLE
    7  CERTIFICATE SHALL BE FILED FOR EACH ACTION EVEN IF MORE THAN ONE DEFEND-
    8  ANT HAS BEEN NAMED IN THE COMPLAINT OR IS SUBSEQUENTLY NAMED.
    9    (C) WHERE  THE  DOCUMENTS  REQUIRED  UNDER  SUBDIVISION  (A)  ARE  NOT
   10  ATTACHED  TO THE SUMMONS AND COMPLAINT OR TO THE CERTIFICATE, THE ATTOR-
   11  NEY FOR THE PLAINTIFF SHALL ATTACH TO THE CERTIFICATE SUPPLEMENTAL AFFI-
   12  DAVITS BY SUCH ATTORNEY OR REPRESENTATIVE OF  PLAINTIFF  ATTESTING  THAT
   13  SUCH  DOCUMENTS  ARE  LOST  WHETHER  BY DESTRUCTION, THEFT OR OTHERWISE.
   14  NOTHING HEREIN SHALL REPLACE OR ABROGATE PLAINTIFF'S OBLIGATIONS AS  SET
   15  FORTH IN THE NEW YORK UNIFORM COMMERCIAL CODE.
   16    (D)  THE  PROVISIONS  OF  SUBDIVISION (D) OF RULE 3015 OF THIS ARTICLE
   17  SHALL NOT BE APPLICABLE TO A DEFENDANT WHO  IS  NOT  REPRESENTED  BY  AN
   18  ATTORNEY.
   19    (E) IF A PLAINTIFF WILLFULLY FAILS TO PROVIDE COPIES OF THE PAPERS AND
   20  DOCUMENTS  AS  REQUIRED BY SUBDIVISION (A) OF THIS SECTION AND THE COURT
   21  FINDS, UPON THE MOTION OF ANY PARTY OR ON ITS OWN MOTION  ON  NOTICE  TO
   22  THE PARTIES, THAT SUCH PAPERS AND DOCUMENTS OUGHT TO HAVE BEEN PROVIDED,
   23  THE  COURT  MAY  DISMISS THE COMPLAINT OR MAKE SUCH FINAL OR CONDITIONAL
   24  ORDER WITH REGARD TO SUCH FAILURE AS IS JUST INCLUDING BUT  NOT  LIMITED
   25  TO  DENIAL  OF  THE  ACCRUAL OF ANY INTEREST, COSTS, ATTORNEYS' FEES AND
   26  OTHER FEES, RELATING TO THE UNDERLYING MORTGAGE DEBT. ANY SUCH DISMISSAL
   27  SHALL BE WITHOUT PREJUDICE AND SHALL NOT BE ON THE MERITS.
   28    S 2. Subdivision (a) of rule 3408 of the civil practice law and rules,
   29  as amended by chapter 507 of the laws of 2009, is  amended  to  read  as
   30  follows:
   31    (a)  In  any  residential  foreclosure action involving a home loan as
   32  such term is defined in section thirteen hundred four of the real  prop-
   33  erty  actions  and proceedings law, in which the defendant is a resident
   34  of the property subject to foreclosure, PLAINTIFF SHALL  FILE  PROOF  OF
   35  SERVICE WITHIN TWENTY DAYS OF SUCH SERVICE, HOWEVER SERVICE IS MADE, AND
   36  the  court shall hold a mandatory conference within sixty days after the
   37  date when proof of service UPON SUCH DEFENDANT is filed with the  county
   38  clerk,  or  on such adjourned date as has been agreed to by the parties,
   39  for the purpose of holding  settlement  discussions  pertaining  to  the
   40  relative  rights  and obligations of the parties under the mortgage loan
   41  documents, including, but not limited to determining whether the parties
   42  can reach a mutually agreeable resolution to help  the  defendant  avoid
   43  losing his or her home, and evaluating the potential for a resolution in
   44  which  payment  schedules  or  amounts  may be modified or other workout
   45  options may be agreed to, and for  whatever  other  purposes  the  court
   46  deems appropriate.
   47    S  3.  This  act shall take effect on the thirtieth day after it shall
   48  have become a law and shall apply to actions commenced on or after  such
   49  effective date; provided, however that the amendments to subdivision (a)
   50  of  rule 3408 of the civil practice law and rules made by section two of
   51  this act shall not affect the expiration of such subdivision  and  shall
   52  be deemed to expire therewith.
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