Provides for free legal representation in certain mortgage foreclosure actions where the homeowner is financially unable to obtain counsel; requires notice of such availability.
TITLE OF BILL: An act to amend the real property actions and proceedings law and the county law, in relation to representation of certain persons in private residential foreclosure actions
PURPOSE: This amendment would provide a home owner in a foreclosure preceding who is financially unable to obtain counsel with the right to assigned counsel by the court.
SUMMARY OF PROVISIONS:
Section 1308 of the real property Actions and Proceedings Law is amended to assign counsel to homeowners in a foreclosure proceeding who are financially unable to obtain counsel.
JUSTIFICATION: Present law provides a right to court-appointed counsel in limited civil litigation matters, including certain family or surrogate court cases. However, no such right exists when a New York State resident is threatened with the loss of his or her home. The overwhelming majority of homeowners in foreclosure proceeding have no legal representation. As the subprime lending crisis sweeps across New York State, it is estimated that tens of thousands of state residents may face foreclosure in the near future. This bill will confront this crisis and prevent dramatic declines in home ownership by providing a right to legal representation for those who cannot afford it.
LEGISLATIVE HISTORY: 01/06/10: A.464 - Referred to Housing
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This act shall take effect on the first of January next succeeding the date on which it shall become law.
STATE OF NEW YORK ________________________________________________________________________ 1723 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________Introduced by Sens. ESPAILLAT, KRUEGER, MONTGOMERY, PARKER -- read twice and ordered printed, and when printed to be committed to the Committee on Housing, Construction and Community Development AN ACT to amend the real property actions and proceedings law and the county law, in relation to representation of certain persons in private residential foreclosure actions THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The real property actions and proceedings law is amended by adding a new section 1308 to read as follows: S 1308. ASSIGNMENT OF COUNSEL. A HOMEOWNER IN A FORECLOSURE ACTION WHO IS FINANCIALLY UNABLE TO OBTAIN COUNSEL FOR REPRESENTATION IN SUCH ACTION SHALL HAVE A RIGHT TO ASSIGNED COUNSEL BY THE COURT. ASSIGNMENT OF COUNSEL ISSUED UNDER THIS SECTION SHALL BE IMPLEMENTED AS PROVIDED IN ARTICLE EIGHTEEN-B OF THE COUNTY LAW. S 2. Subdivision 3 of section 1303 of the real property actions and proceedings law, as amended by chapter 507 of the laws of 2009 and as further amended by section 104 of part A of chapter 62 of the laws of 2011, is amended to read as follows: 3. The notice to any mortgagor required by paragraph (a) of subdivi- sion one of this section shall appear as follows: Help for Homeowners in Foreclosure New York State Law requires that we send you this notice about the foreclosure process. Please read it carefully. Summons and Complaint You are in danger of losing your home. If you fail to respond to the summons and complaint in this foreclosure action, you may lose your home. Please read the summons and complaint carefully. You should imme- diately contact an attorney or your local legal aid office to obtain advice on how to protect yourself.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD05007-01-3 S. 1723 2
Sources of Information and Assistance The State encourages you to become informed about your options in foreclosure. In addition to seeking assistance from an attorney or legal aid office, there are government agencies and non-profit organizations that you may contact for information about possible options, including trying to work with your lender during this process. YOU MAY BE ENTI- TLED TO ASSIGNED COUNSEL IF YOU ARE FINANCIALLY UNABLE TO OBTAIN REPRE- SENTATION. To locate an entity near you, you may call the toll-free helpline maintained by the New York State Department of Financial Services at (enter number) or visit the Department's website at (enter web address). Foreclosure rescue scams Be careful of people who approach you with offers to "save" your home. There are individuals who watch for notices of foreclosure actions in order to unfairly profit from a homeowner's distress. You should be extremely careful about any such promises and any suggestions that you pay them a fee or sign over your deed. State law requires anyone offer- ing such services for profit to enter into a contract which fully describes the services they will perform and fees they will charge, and which prohibits them from taking any money from you until they have completed all such promised services. S 3. The article heading of article 18-B of the county law, as amended by chapter 682 of the laws of 1977, is amended to read as follows: REPRESENTATION OF PERSONS ACCUSED OF CRIME OR PARTIES BEFORE THE FAMILY COURT OR SURROGATE'S COURT OR IN CERTAIN FORECLOSURE ACTIONS S 4. The opening paragraph of section 722 of the county law, as amended by chapter 7 of the laws of 2007, is amended to read as follows: The governing body of each county and the governing body of the city in which a county is wholly contained shall place in operation through- out the county a plan for providing counsel to persons charged with a crime or who are entitled to counsel pursuant to section two hundred sixty-two or section eleven hundred twenty of the family court act, article six-C of the correction law, section four hundred seven of the surrogate's court procedure act
[or], article ten of the mental hygiene law OR SECTION THIRTEEN HUNDRED EIGHT OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, who are financially unable to obtain counsel. Each plan shall also provide for investigative, expert and other services neces- sary for an adequate defense. The plan shall conform to one of the following: S 5. This act shall take effect on the first of January next succeed- ing the date on which it shall have become a law.