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A00629 Summary:

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A00629 Floor Votes:

A00629 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         629--D
                                                                 Cal. No. 36
 
                               2011-2012 Regular Sessions
 
                   IN ASSEMBLY
 
                                       (Prefiled)
 
                                     January 5, 2011
                                       ___________
 
        Introduced  by  M.  of  A.  WEINSTEIN, CLARK, P. RIVERA, COLTON, LAVINE,
          M. MILLER,  ROBINSON,  V. LOPEZ,  WEPRIN,  ROSENTHAL,  ENGLEBRIGHT  --
          Multi-Sponsored by -- M. of A. ABINANTI, SCHIMEL, SWEENEY -- read once

          and referred to the Committee on Judiciary -- reported from committee,
          advanced  to a third reading, amended and ordered reprinted, retaining
          its place on the order of third reading  --  again  amended  on  third
          reading,  ordered reprinted, retaining its place on the order of third
          reading -- again amended on third reading, ordered reprinted,  retain-
          ing  its place on the order of third reading -- again amended on third
          reading, ordered reprinted, retaining its place on the order of  third
          reading
 
        AN  ACT  to  amend  the  real  property  actions and proceedings law, in
          relation to standing to commence an action to foreclose a mortgage
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1. Subdivision 1 of section 1302 of the real property actions

     2  and proceedings law, as amended by chapter 472 of the laws of  2008,  is
     3  amended to read as follows:
     4    1.  Any  complaint  served  in a proceeding initiated pursuant to this
     5  article relating to a high-cost home loan or a subprime  home  loan,  as
     6  such  terms  are  defined in section six-l and six-m of the banking law,
     7  respectively, must contain an affirmative allegation that  at  the  time
     8  the proceeding is commenced, the plaintiff[:
     9    (a)  is  the owner and holder of the subject mortgage and note, or has
    10  been delegated the authority to institute a mortgage foreclosure  action
    11  by the owner and holder of the subject mortgage and note; and
    12    (b)]  has  complied with all of the provisions of section five hundred
    13  ninety-five-a of the banking law and any rules and  regulations  promul-

    14  gated  thereunder, section six-l or six-m of the banking law, and subdi-
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03116-11-2
        A. 629--D                           2
 
     1  vision two of  section  thirteen  hundred  two-a  and  section  thirteen
     2  hundred four of this article.
     3    §  2.  The  real  property  actions  and proceedings law is amended by
     4  adding a new section 1302-a to read as follows:
     5    § 1302-a. Standing to commence an action on a home loan.  1. No person
     6  shall have standing to commence an action pursuant to  this  article  to
     7  foreclose  on  a  home  loan, as defined in paragraph (a) of subdivision

     8  five of section thirteen hundred four of this article, unless it is  the
     9  owner and holder of the subject mortgage and note, or has been delegated
    10  the  authority  to  institute a mortgage foreclosure action by the owner
    11  and holder  of  the  subject  mortgage  and  note.  Notwithstanding  the
    12  provisions  of  subdivision (e) of rule thirty-two hundred eleven of the
    13  civil practice law and rules, any defense based on the plaintiff's  lack
    14  of standing in a foreclosure proceeding shall not be waived if a defend-
    15  ant  fails  to  raise the defense in a responsive pleading or pre-answer
    16  motion to dismiss.
    17    2. Every summons and complaint to commence a foreclosure action  on  a
    18  home  loan,  as  defined in paragraph (a) of subdivision five of section

    19  thirteen hundred four of this  article,  shall  include  an  affirmative
    20  allegation  that  at the time the proceeding is commenced, the plaintiff
    21  is the owner and holder of the subject mortgage and note,  or  has  been
    22  delegated  the  authority  to institute a mortgage foreclosure action by
    23  the owner and holder of the subject mortgage and note.  In addition, the
    24  plaintiff shall plead in its complaint that the originals of the subject
    25  mortgage and note are in its possession and  control,  or  that  of  the
    26  holder or custodian, or that the plaintiff has complied with subdivision
    27  five  of  this  section and that such plaintiff is otherwise entitled to
    28  enforce the subject mortgage and note pursuant to law.

    29    3. There shall be filed with every summons and complaint to commence a
    30  foreclosure action on a home loan, as defined in paragraph (a) of subdi-
    31  vision five of section thirteen hundred four of this article:
    32    (a) a copy of the original subject mortgage and note, and proof of the
    33  ownership thereof including all original endorsements,  assignments  and
    34  transfers of such mortgage and note; and
    35    (b) if applicable, proof of delegation of authority from the owner and
    36  holder of the subject mortgage and note to institute a mortgage foreclo-
    37  sure action on behalf of such owner and holder.
    38    4. The court shall make an affirmative finding of standing which shall
    39  be  included  in the judgment of foreclosure and sale on a home loan, as

    40  defined in paragraph (a) of subdivision five of section thirteen hundred
    41  four of this article.
    42    5. If the original note or any original endorsements, assignments  and
    43  transfers  of  such mortgage and note are lost or otherwise unavailable,
    44  the plaintiff must comply with applicable law to establish the right  to
    45  enforce the mortgage and note including the uniform commercial code.
    46    §  3.  This act shall take effect immediately, except that section one
    47  of this act and subdivisions 2 and 3 of section 1302-a of the real prop-
    48  erty actions and proceedings law, as added by section two of  this  act,
    49  shall take effect on the ninetieth day after it shall have become a law.