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

                                 4530--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              April 8, 2013
                               ___________

Introduced  by  Sens.  KLEIN, AVELLA, GOLDEN, HASSELL-THOMPSON, KENNEDY,
  LANZA, LATIMER, PARKER, PERALTA, TKACZYK -- (at request of the  Office
  of  Court  Administration) -- (at request of the Department of Law) --
  read twice and ordered printed, and when printed to  be  committed  to
  the  Committee  on  Judiciary  --  committee discharged, bill amended,
  ordered reprinted as amended and recommitted to said committee

AN ACT to amend the civil practice law and rules, in relation  to  resi-
  dential foreclosure actions

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The civil practice law and rules is amended by adding a new
section 3012-b to read as follows:
  S 3012-B. CERTIFICATE OF  MERIT  IN  CERTAIN  RESIDENTIAL  FORECLOSURE
ACTIONS.  (A)  IN  ANY  RESIDENTIAL  FORECLOSURE ACTION INVOLVING A HOME
LOAN, AS SUCH TERM IS DEFINED IN SECTION THIRTEEN HUNDRED  FOUR  OF  THE
REAL  PROPERTY  ACTIONS AND PROCEEDINGS LAW, IN WHICH THE DEFENDANT IS A
RESIDENT OF THE PROPERTY WHICH IS SUBJECT TO FORECLOSURE, THE  COMPLAINT
SHALL  BE  ACCOMPANIED  BY A CERTIFICATE, SIGNED BY THE ATTORNEY FOR THE
PLAINTIFF, CERTIFYING THAT THE ATTORNEY HAS REVIEWED THE  FACTS  OF  THE
CASE  AND THAT, BASED ON CONSULTATION WITH REPRESENTATIVES OF THE PLAIN-
TIFF IDENTIFIED IN THE CERTIFICATE AND THE ATTORNEY'S REVIEW  OF  PERTI-
NENT  DOCUMENTS,  INCLUDING THE MORTGAGE, SECURITY AGREEMENT AND NOTE OR
BOND UNDERLYING THE MORTGAGE EXECUTED BY DEFENDANT AND  ALL  INSTRUMENTS
OF  ASSIGNMENT, IF ANY, AND ANY OTHER INSTRUMENT OF INDEBTEDNESS INCLUD-
ING ANY MODIFICATION, EXTENSION, AND CONSOLIDATION, TO THE BEST OF  SUCH
ATTORNEY'S KNOWLEDGE, INFORMATION AND BELIEF THERE IS A REASONABLE BASIS
FOR  THE COMMENCEMENT OF SUCH ACTION AND THAT THE PLAINTIFF IS CURRENTLY
THE CREDITOR ENTITLED TO ENFORCE RIGHTS UNDER SUCH DOCUMENTS.    IF  NOT
ATTACHED TO THE SUMMONS AND COMPLAINT IN THE ACTION, A COPY OF THE MORT-
GAGE,  SECURITY  AGREEMENT  AND  NOTE  OR  BOND  UNDERLYING THE MORTGAGE
EXECUTED BY DEFENDANT AND ALL INSTRUMENTS OF ASSIGNMENT, IF ANY, AND ANY

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
S                                                          LBD08975-10-3
              

S. 4530--A                          2

OTHER INSTRUMENT OF INDEBTEDNESS INCLUDING ANY MODIFICATION,  EXTENSION,
AND CONSOLIDATION SHALL BE ATTACHED TO THE CERTIFICATE.
  (B) WHERE A CERTIFICATE IS REQUIRED PURSUANT TO THIS SECTION, A SINGLE
CERTIFICATE SHALL BE FILED FOR EACH ACTION EVEN IF MORE THAN ONE DEFEND-
ANT HAS BEEN NAMED IN THE COMPLAINT OR IS SUBSEQUENTLY NAMED.
  (C)  WHERE  THE  DOCUMENTS  REQUIRED  UNDER  SUBDIVISION  (A)  ARE NOT
ATTACHED TO THE SUMMONS AND COMPLAINT OR TO THE CERTIFICATE, THE  ATTOR-
NEY FOR THE PLAINTIFF SHALL ATTACH TO THE CERTIFICATE SUPPLEMENTAL AFFI-
DAVITS  BY  SUCH  ATTORNEY OR REPRESENTATIVE OF PLAINTIFF ATTESTING THAT
SUCH DOCUMENTS ARE LOST WHETHER  BY  DESTRUCTION,  THEFT  OR  OTHERWISE.
NOTHING  HEREIN SHALL REPLACE OR ABROGATE PLAINTIFF'S OBLIGATIONS AS SET
FORTH IN THE NEW YORK UNIFORM COMMERCIAL CODE.
  (D) THE PROVISIONS OF SUBDIVISION (D) OF RULE  3015  OF  THIS  ARTICLE
SHALL  NOT  BE  APPLICABLE  TO  A DEFENDANT WHO IS NOT REPRESENTED BY AN
ATTORNEY.
  (E) IF A PLAINTIFF WILLFULLY FAILS TO PROVIDE COPIES OF THE PAPERS AND
DOCUMENTS AS REQUIRED BY SUBDIVISION (A) OF THIS SECTION AND  THE  COURT
FINDS,  UPON  THE  MOTION OF ANY PARTY OR ON ITS OWN MOTION ON NOTICE TO
THE PARTIES, THAT SUCH PAPERS AND DOCUMENTS OUGHT TO HAVE BEEN PROVIDED,
THE COURT MAY DISMISS THE COMPLAINT OR MAKE SUCH  FINAL  OR  CONDITIONAL
ORDER  WITH  REGARD TO SUCH FAILURE AS IS JUST INCLUDING BUT NOT LIMITED
TO DENIAL OF THE ACCRUAL OF ANY INTEREST,  COSTS,  ATTORNEYS'  FEES  AND
OTHER FEES, RELATING TO THE UNDERLYING MORTGAGE DEBT. ANY SUCH DISMISSAL
SHALL BE WITHOUT PREJUDICE AND SHALL NOT BE ON THE MERITS.
  S 2. Subdivision (a) of rule 3408 of the civil practice law and rules,
as  amended  by  chapter  507 of the laws of 2009, is amended to read as
follows:
  (a) In any residential foreclosure action involving  a  home  loan  as
such  term is defined in section thirteen hundred four of the real prop-
erty actions and proceedings law, in which the defendant is  a  resident
of  the  property  subject to foreclosure, PLAINTIFF SHALL FILE PROOF OF
SERVICE WITHIN TWENTY DAYS OF SUCH SERVICE, HOWEVER SERVICE IS MADE, AND
the court shall hold a mandatory conference within sixty days after  the
date  when proof of service UPON SUCH DEFENDANT is filed with the county
clerk, or on such adjourned date as has been agreed to by  the  parties,
for  the  purpose  of  holding  settlement discussions pertaining to the
relative rights and obligations of the parties under the  mortgage  loan
documents, including, but not limited to determining whether the parties
can  reach  a  mutually agreeable resolution to help the defendant avoid
losing his or her home, and evaluating the potential for a resolution in
which payment schedules or amounts may  be  modified  or  other  workout
options  may  be  agreed  to,  and for whatever other purposes the court
deems appropriate.
  S 3. This act shall take effect on the thirtieth day  after  it  shall
have  become a law and shall apply to actions commenced on or after such
effective date; provided, however that the amendments to subdivision (a)
of rule 3408 of the civil practice law and rules made by section two  of
this  act  shall not affect the expiration of such subdivision and shall
be deemed to expire therewith.