Provides for free legal representation in certain mortgage foreclosure actions where the homeowner is financially unable to obtain counsel; requires notice of such availability.

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S3261-2011 Actions

• Jan 4, 2012: REFERRED TO HOUSING, CONSTRUCTION AND COMMUNITY DEVELOPMENT
• Feb 15, 2011: REFERRED TO HOUSING, CONSTRUCTION AND COMMUNITY DEVELOPMENT

S3261-2011 Memo

BILL NUMBER:S3261

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.

S3261-2011 Text

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

                                    3261

                         2011-2012 Regular Sessions

                              I N  SENATE

                              February 15, 2011
                                 ___________

  Introduced by Sen. ESPAILLAT -- 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,  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.
  Sources of Information and Assistance

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD04676-01-1

 S. 3261                             2

    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 Banking Department 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.