Provides for the filing of a certificate of merit in certain residential foreclosure actions

10 Co-sponsors

• Tony Avella
• Martin Malavé Dilan
• Martin J. Golden
• Ruth Hassell-Thompson
• Timothy M. Kennedy
• Andrew J. Lanza
• George Latimer
• Kevin S. Parker
• José Peralta
• Cecilia Tkaczyk

BILL NUMBER:S4530A

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 plaintiffs 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)