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 ________________________________________________________________________ 629 2011-2012 Regular Sessions IN ASSEMBLY (PREFILED) January 5, 2011 ___________Introduced by M. of A. WEINSTEIN -- 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: Section 1. Subdivision 1 of section 1302 of the real property actions and proceedings law, as amended by chapter 472 of the laws of 2008, is amended to read as follows: 1. Any complaint served in a proceeding initiated pursuant to this article relating to a high-cost home loan or a subprime home loan, as such terms are defined in section six-l and six-m of the banking law, respectively, must contain an affirmative allegation that at the time the proceeding is commenced, the plaintiff
[: (a) 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 and holder of the subject mortgage and note; and (b)]has complied with all of the provisions of section five hundred ninety-five-a of the banking law and any rules and regulations promul- gated thereunder, section six-l or six-m of the banking law, and SUBDI- VISION TWO OF SECTION THIRTEEN HUNDRED TWO-A AND section thirteen hundred four of this article. S 2. The real property actions and proceedings law is amended by adding a new section 1302-a to read as follows: S 1302-A. STANDING TO COMMENCE AN ACTION. 1. NO PERSON SHALL HAVE STANDING TO COMMENCE AN ACTION PURSUANT TO THIS ARTICLE UNLESS IT 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 AND HOLDER OF THE SUBJECT MORTGAGE AND NOTE. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION (E) OF RULE THIRTY-TWO HUNDRED ELEVEN OF THEEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD03116-01-1 A. 629 2
CIVIL PRACTICE LAW AND RULES, ANY DEFENSE BASED ON THE PLANITIFF'S LACK OF STANDING IN A FORECLOSURE PROCEEDING SHALL NOT BE WAIVED IF A DEFEND- ANT FAILS TO RAISE THE DEFENSE IN A RESPONSIVE PLEADING OR PRE-ANSWER MOTION TO DISMISS. 2. EVERY SUMMONS AND COMPLAINT TO COMMENCE A FORECLOSURE ACTION SHALL INCLUDE AN AFFIRMATIVE ALLEGATION THAT AT THE TIME THE PROCEEDING IS COMMENCED, 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 AND HOLDER OF THE SUBJECT MORTGAGE AND NOTE. IN ADDITION, THE PLAINTIFF SHALL PLEAD IN ITS COMPLAINT THAT THE ORIGINALS OF THE SUBJECT MORTGAGE AND NOTE ARE IN ITS POSSESSION AND CONTROL, AND THAT SUCH PLAINTIFF IS OTHERWISE ENTITLED TO ENFORCE THE SUBJECT MORTGAGE AND NOTE PURSUANT TO LAW. 3. THERE SHALL BE FILED WITH EVERY SUMMONS AND COMPLAINT TO COMMENCE A FORECLOSURE ACTION: (A) A COPY OF THE ORIGINAL SUBJECT MORTGAGE AND NOTE, AND PROOF OF THE OWNERSHIP THEREOF INCLUDING ALL ORIGINAL ENDORSEMENTS, ASSIGNMENTS AND TRANSFERS OF SUCH MORTGAGE AND NOTE; AND (B) IF APPLICABLE, PROOF OF DELEGATION OF AUTHORITY FROM THE OWNER AND HOLDER OF THE SUBJECT MORTGAGE AND NOTE TO INSTITUTE A MORTGAGE FORECLO- SURE ACTION ON BEHALF OF SUCH OWNER AND HOLDER. S 3. This act shall take effect immediately, except that section one of this act and subdivisions 2 and 3 of section 1302-a of the real prop- erty actions and proceedings law, as added by section two of this act, shall take effect on the ninetieth day after it shall have become a law.