Actions

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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  THE

 EXPLANATION--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.