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.

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A629C-2011 Actions

• Mar 30, 2012: amended on third reading 629d
• Mar 5, 2012: amended on third reading 629c
• Jan 4, 2012: ordered to third reading cal.36
• Jan 4, 2012: RETURNED TO ASSEMBLY
• Jan 4, 2012: DIED IN SENATE
• Jun 22, 2011: REFERRED TO RULES
• Jun 22, 2011: delivered to senate
• Jun 22, 2011: passed assembly
• May 23, 2011: amended on third reading 629b
• May 2, 2011: amended on third reading 629a
• Feb 24, 2011: advanced to third reading cal.46
• Feb 15, 2011: reported
• Jan 5, 2011: referred to judiciary

A629C-2011 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                   629--C
                                                           Cal. No. 36

                         2011-2012 Regular Sessions

                            I N  ASSEMBLY

                                 (PREFILED)

                               January 5, 2011
                                 ___________

  Introduced  by  M.  of  A.  WEINSTEIN, CLARK, P. RIVERA, COLTON, LAVINE,
    M. MILLER, ROBINSON, V. LOPEZ  --  Multi-Sponsored  by  --  M.  of  A.
    ABINANTI,  SCHIMEL -- read once and referred to the Committee on Judi-
    ciary -- reported from committee, advanced to a third reading, amended
    and ordered reprinted, retaining its place on the order of third read-
    ing -- again amended on third reading,  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

  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.

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD03116-08-2

 A. 629--C                           2

    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 ON A HOME LOAN.  1. NO PERSON
  SHALL  HAVE  STANDING  ON  A  HOME  LOAN, AS DEFINED IN PARAGRAPH (A) OF
  SUBDIVISION FIVE OF SECTION THIRTEEN HUNDRED FOUR OF  THIS  ARTICLE,  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 CIVIL PRAC-
  TICE LAW AND RULES, ANY DEFENSE BASED ON THE PLAINTIFF'S LACK OF  STAND-
  ING IN A FORECLOSURE PROCEEDING SHALL NOT BE WAIVED IF A DEFENDANT FAILS
  TO  RAISE  THE  DEFENSE IN A RESPONSIVE PLEADING OR PRE-ANSWER MOTION TO
  DISMISS.  THE DEFENSE OF STANDING SHALL NOT SURVIVE THE COURT'S ISSUANCE
  OF THE JUDGMENT OF FORECLOSURE AND SALE.
    2. EVERY SUMMONS AND COMPLAINT TO COMMENCE A FORECLOSURE ACTION  ON  A
  HOME  LOAN,  AS  DEFINED IN PARAGRAPH (A) OF SUBDIVISION FIVE OF SECTION
  THIRTEEN HUNDRED FOUR OF THIS  ARTICLE,  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,  OR  THAT  OF  THE
  HOLDER OR CUSTODIAN, OR THAT THE PLAINTIFF HAS COMPLIED WITH SUBDIVISION
  FIVE  OF  THIS  SECTION 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.
    4. THE COURT SHALL MAKE AN AFFIRMATIVE FINDING OF STANDING WHICH SHALL
  BE  INCLUDED  IN THE JUDGMENT OF FORECLOSURE AND SALE ON A HOME LOAN, AS
  DEFINED IN PARAGRAPH (A) OF SUBDIVISION FIVE OF SECTION THIRTEEN HUNDRED
  FOUR OF THIS ARTICLE.
    5. IF THE ORIGINAL NOTE OR ANY ORIGINAL ENDORSEMENTS, ASSIGNMENTS  AND
  TRANSFERS  OF  SUCH MORTGAGE AND NOTE ARE LOST OR OTHERWISE UNAVAILABLE,
  THE PLAINTIFF MUST COMPLY WITH APPLICABLE LAW TO ESTABLISH THE RIGHT  TO
  ENFORCE THE MORTGAGE AND NOTE INCLUDING THE UNIFORM COMMERCIAL CODE.
    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.