Provides that only the owner and holder of a mortgage and note, or its agent, shall have standing to commence a mortgage foreclosure action; lack of standing shall be defense that may be raised at any time prior to the judgment of foreclosure and sale; requires the plaintiff in a foreclosure action to affirm that the plaintiff is the holder and owner, or its designed agent, of the subject mortgage and note; provides that the summons and complaint shall include a copy of the original mortgage and note, and all endorsements, assignments and transfers thereof, and any delegations of authority by the owner and holder of the mortgage and note.
STATE OF NEW YORK
________________________________________________________________________
1000
2013-2014 Regular Sessions
IN ASSEMBLY(Prefiled)
January 9, 2013
___________
Introduced by M. of A. WEINSTEIN, CLARK, COLTON, WEPRIN, CASTRO, JAFFEE,
WRIGHT -- Multi-Sponsored by -- M. of A. ABINANTI, PERRY, SCHIMEL,
SWEENEY -- read once and referred to the Committee on Judiciary
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-
15 vision two of section thirteen hundred two-a and section thirteen
16 hundred four of this article.
17 § 2. The real property actions and proceedings law is amended by
18 adding a new section 1302-a to read as follows:
19 § 1302-a. Standing to commence an action on a home loan. 1. No person
20 shall have standing to commence an action pursuant to this article to
21 foreclose on a home loan, as defined in paragraph (a) of subdivision
22 five of section thirteen hundred four of this article, unless it is the
23 owner and holder of the subject mortgage and note, or has been delegated
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03701-01-3
A. 1000 2
1 the authority to institute a mortgage foreclosure action by the owner
2 and holder of the subject mortgage and note. Notwithstanding the
3 provisions of subdivision (e) of rule thirty-two hundred eleven of the
4 civil practice law and rules, any defense based on the plaintiff's lack
5 of standing in a foreclosure proceeding shall not be waived if a defend-
6 ant fails to raise the defense in a responsive pleading or pre-answer
7 motion to dismiss.
8 2. Every summons and complaint to commence a foreclosure action on a
9 home loan, as defined in paragraph (a) of subdivision five of section
10 thirteen hundred four of this article, shall include an affirmative
11 allegation that at the time the proceeding is commenced, the plaintiff
12 is the owner and holder of the subject mortgage and note, or has been
13 delegated the authority to institute a mortgage foreclosure action by
14 the owner and holder of the subject mortgage and note. In addition, the
15 plaintiff shall plead in its complaint that the originals of the subject
16 mortgage and note are in its possession and control, or that of the
17 holder or custodian, or that the plaintiff has complied with subdivision
18 five of this section and that such plaintiff is otherwise entitled to
19 enforce the subject mortgage and note pursuant to law.
20 3. There shall be filed with every summons and complaint to commence a
21 foreclosure action on a home loan, as defined in paragraph (a) of subdi-
22 vision five of section thirteen hundred four of this article:
23 (a) a copy of the original subject mortgage and note, and proof of the
24 ownership thereof including all original endorsements, assignments and
25 transfers of such mortgage and note; and
26 (b) if applicable, proof of delegation of authority from the owner and
27 holder of the subject mortgage and note to institute a mortgage foreclo-
28 sure action on behalf of such owner and holder.
29 4. The court shall make an affirmative finding of standing which shall
30 be included in the judgment of foreclosure and sale on a home loan, as
31 defined in paragraph (a) of subdivision five of section thirteen hundred
32 four of this article.
33 5. If the original note or any original endorsements, assignments and
34 transfers of such mortgage and note are lost or otherwise unavailable,
35 the plaintiff must comply with applicable law to establish the right to
36 enforce the mortgage and note including the uniform commercial code.
37 § 3. This act shall take effect immediately, except that section one
38 of this act and subdivisions 2 and 3 of section 1302-a of the real prop-
39 erty actions and proceedings law, as added by section two of this act,
40 shall take effect on the ninetieth day after it shall have become a law.
