S T A T E O F N E W Y O R K
________________________________________________________________________
5719
2013-2014 Regular Sessions
I N S E N A T E
June 7, 2013
___________
Introduced by Sen. SKELOS -- 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, in
relation to summary action to foreclose mortgages on vacant and aban-
doned residential property
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. ABANDONED PROPERTY FORECLOSURE SUMMARY PROCEDURE. 1. FOR THE
PURPOSES OF THIS SECTION, THE FOLLOWING DEFINITIONS SHALL APPLY:
(A) "VACANT AND ABANDONED" RESIDENTIAL PROPERTY MEANS RESIDENTIAL REAL
PROPERTY, AS DEFINED IN SECTION THIRTEEN HUNDRED FIVE OF THIS ARTICLE,
WITH RESPECT TO WHICH THE MORTGAGEE PROVES BY REPORTS, AFFIDAVIT OR
AFFIDAVITS, AFFIRMATION OR AFFIRMATIONS, PHOTOGRAPHS OR OTHERWISE, OR
ANY COMBINATION THEREOF TO THE SATISFACTION OF THE COURT, THAT THE MORT-
GAGED REAL PROPERTY IS VACANT AND HAS BEEN ABANDONED. REAL PROPERTY
SHALL BE DEEMED "VACANT AND ABANDONED" IF THE COURT FINDS THAT THE MORT-
GAGED PROPERTY IS NOT OCCUPIED BY A MORTGAGOR OR TENANT PURSUANT TO AND
AS EVIDENCED BY A WRITTEN LEASE AGREEMENT IN THE TENANT'S POSSESSION
ENTERED INTO PRIOR TO THE INITIATION OF THE FORECLOSURE ACTION, AND AT
LEAST TWO OF THE FOLLOWING CONDITIONS EXIST:
(I) THE PROPERTY IS NOT MAINTAINED BY A MORTGAGOR IN A MANNER CONSIST-
ENT WITH THE STANDARDS SET FORTH IN SUBDIVISION FIVE OF SECTION THIRTEEN
HUNDRED SEVEN OF THIS ARTICLE;
(II) THE PROPERTY IS A RISK TO THE HEALTH, SAFETY OR WELFARE OF THE
PUBLIC, OR ANY ADJOINING OR ADJACENT PROPERTY OWNERS, WHICH EXISTS DUE
TO ACTS OF VANDALISM, LOITERING, CRIMINAL CONDUCT, OR PHYSICAL
DESTRUCTION OR DETERIORATION OF THE PROPERTY;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11331-01-3
S. 5719 2
(III) THE PROPERTY IS SUBJECT TO AN UNCORRECTED VIOLATION OF A MUNICI-
PAL BUILDING, HOUSING OR SIMILAR CODE DURING THE YEAR PRECEDING INITI-
ATION OF THE FORECLOSURE ACTION, OR AN ORDER BY ANY MUNICIPAL OR OTHER
GOVERNMENTAL AUTHORITY DECLARING THE PROPERTY UNFIT FOR OCCUPANCY AND TO
REMAIN VACANT AND UNOCCUPIED OR TO BE DEMOLISHED;
(IV) A WRITTEN STATEMENT HAS BEEN ISSUED BY ANY MORTGAGOR EXPRESSING
THE CLEAR INTENT OF ALL MORTGAGORS TO ABANDON THE PROPERTY; OR
(V) ANY OTHER REASONABLE INDICIA OF ABANDONMENT.
(B) A RESIDENTIAL PROPERTY SHALL NOT BE CONSIDERED "VACANT AND ABAN-
DONED" IF, ON THE PROPERTY:
(I) THERE IS AN UNOCCUPIED BUILDING WHICH IS UNDERGOING CONSTRUCTION,
RENOVATION OR REHABILITATION THAT IS PROCEEDING DILIGENTLY TO
COMPLETION, AND THE BUILDING IS IN COMPLIANCE WITH ALL APPLICABLE ORDI-
NANCES, CODES, REGULATIONS AND STATUTES;
(II) THERE IS A BUILDING OCCUPIED ON A SEASONAL BASIS, BUT IS OTHER-
WISE SECURE; OR
(III) THERE IS A BUILDING THAT IS SECURE, BUT IS THE SUBJECT OF A
PROBATE ACTION, ACTION TO QUIET TITLE OR OTHER SIMILAR OWNERSHIP
DISPUTE.
2. WHERE THE FORECLOSING PARTY REASONABLY BELIEVES THAT THE MORTGAGED
PROPERTY IS VACANT AND ABANDONED PURSUANT TO THIS SECTION, THEN THAT
FORECLOSING PARTY MAY INCLUDE AN ALLEGATION IN THE COMPLAINT THAT UPON
INFORMATION AND BELIEF THE MORTGAGED PREMISES ARE VACANT AND ABANDONED
PURSUANT TO THIS SECTION, AND PURSUE AWARD AND ENTRY OF A JUDGMENT OF
FORECLOSURE AND SALE WITHOUT NECESSITY FOR THE APPOINTMENT OF A REFEREE
TO COMPUTE AND THE REFEREE'S COMPUTATION OF THE SUM DUE AS OTHERWISE
REQUIRED BY THIS ARTICLE. IF THE INFORMATION SUPPORTING THE BELIEF THAT
THE MORTGAGED PREMISES ARE VACANT AND ABANDONED IS OBTAINED OR DETER-
MINED AFTER INITIATION OF THE FORECLOSURE ACTION, THE COMPLAINT ALLEGA-
TION THEREFOR SHALL NOT BE REQUIRED AND APPOINTMENT OF A REFEREE AND THE
REFEREE'S CALCULATION OF THE SUM DUE SHALL BE BYPASSED PURSUANT TO THE
FOLLOWING PROCEDURE:
(A) AFTER SERVICE OF PROCESS OF THE SUMMONS AND COMPLAINT IN THE FORE-
CLOSURE ACTION IS COMPLETE AND THE TIME FOR ALL DEFENDANTS OVER WHOM
JURISDICTION HAS BEEN OBTAINED TO APPEAR OR ANSWER HAS EXPIRED, THE
FORECLOSING PARTY MAY:
(I) IF ANY ANSWER HAS BEEN INTERPOSED, EXCEPT AN ANSWER CONTESTING THE
VACANT AND ABANDONED STATUS OF THE MORTGAGED PREMISES, IN WHICH EVENT
THE PROCEDURE OF THIS SECTION SHALL BE UNAVAILABLE, UPON NOTICE OF
MOTION OR ORDER TO SHOW CAUSE MOVE FOR SUMMARY JUDGMENT PURSUANT TO RULE
THIRTY-TWO HUNDRED TWELVE OF THE CIVIL PRACTICE LAW AND RULES TO STRIKE
THE ANSWER OR ANSWERS AND, IN ADDITION, FOR ISSUANCE AND ENTRY BY THE
COURT OF A JUDGMENT OF FORECLOSURE AND SALE WHICH JUDGMENT SHALL HAVE
BEEN SUBMITTED BY THE FORECLOSING PARTY WITH THE MOTION OR ORDER TO SHOW
CAUSE, AND IN WHICH JUDGMENT THE COURT SHALL HAVE DETERMINED THAT THE
MORTGAGED PROPERTY IS VACANT AND ABANDONED, COMPUTED THE SUM DUE UPON
THE SUBJECT MORTGAGE DOCUMENTS AND SHALL HAVE DECLARED THAT THE MORT-
GAGED PROPERTY IS TO BE SOLD AS ONE PARCEL OR IN PARCELS AS THE COURT
SHALL HAVE DECIDED; OR
(II) IF ONLY A GENERAL NOTICE OF APPEARANCE HAS BEEN INTERPOSED BY
DEFENDANT OR DEFENDANTS, AND ANY DEFENDANT NOT INTERPOSING A GENERAL
NOTICE OF APPEARANCE HAS DEFAULTED IN ANSWERING OR APPEARING, UPON
NOTICE OF MOTION OR ORDER TO SHOW CAUSE MOVE FOR ISSUANCE AND ENTRY BY
THE COURT OF A JUDGMENT OF FORECLOSURE AND SALE AS SET FORTH IN SUBPARA-
GRAPH (I) OF THIS PARAGRAPH; OR
S. 5719 3
(III) IF ONLY A NOTICE OF APPEARANCE AND WAIVER HAS BEEN INTERPOSED BY
DEFENDANT OR DEFENDANTS AND ANY DEFENDANT NOT INTERPOSING A NOTICE OF
APPEARANCE AND WAIVER HAS DEFAULTED IN APPEARING OR ANSWERING, UPON EX
PARTE APPLICATION FOR ISSUANCE AND ENTRY BY THE COURT OF A JUDGMENT OF
FORECLOSURE AND SALE AS SET FORTH IN SUBPARAGRAPH (I) OF THIS PARAGRAPH.
(B) ANY MOTION OR ORDER TO SHOW CAUSE PURSUANT TO THIS SECTION SHALL
CONTAIN A DECLARATION IN THE NOTICE OF MOTION OR THE ORDER TO SHOW
CAUSE, AS THE CASE MAY BE, THAT:
"THIS MOTION SEEKS ENTRY OF A JUDGMENT OF FORECLOSURE AND SALE PURSU-
ANT TO SECTION 1308 OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW ON
THE GROUND THAT THE MORTGAGED PREMISES ARE VACANT AND ABANDONED."
(C) IF THE MORTGAGED PROPERTY, IN ADDITION TO BEING RESIDENTIAL PROP-
ERTY, SHALL ALSO BE A HOME LOAN AS DEFINED IN PARAGRAPH (A) OF SUBDIVI-
SION FIVE OF SECTION THIRTEEN HUNDRED FOUR OF THIS ARTICLE, THEN THE
SETTLEMENT CONFERENCE OTHERWISE REQUIRED BY RULE THIRTY-FOUR HUNDRED
EIGHT OF THE CIVIL PRACTICE LAW AND RULES SHALL BE DISPENSED WITH CONDI-
TIONED UPON THE COMPLAINT HAVING PROPOUNDED THE ALLEGATION SET FORTH IN
SUBDIVISION TWO OF THIS SECTION THAT THE MORTGAGED PREMISES ARE VACANT
AND ABANDONED.
3. A JUDGMENT OF FORECLOSURE AND SALE UNDER THE PROCEDURE OF THIS
SECTION SHALL NOT BE ENTERED IF THE COURT FINDS THAT:
(A) THE PROPERTY IS NOT VACANT OR ABANDONED; OR
(B) THE MORTGAGOR OR ANY OTHER DEFENDANT HAS FILED AN ANSWER, APPEAR-
ANCE OR OTHER WRITTEN OBJECTION THAT IS NOT WITHDRAWN, AND A DEFENSE OR
OBJECTION ASSERTED CONTESTS THE STATUS OF THE PROPERTY AS VACANT OR
ABANDONED.
4. IF A JUDGMENT OF FORECLOSURE AND SALE PURSUANT TO THIS SECTION IS
DENIED UPON THE COURT'S FINDING THAT THE MORTGAGED PROPERTY IS NOT
VACANT AND ABANDONED, THEN ALL OTHER RIGHTS AND PROCEDURES AVAILABLE TO
A FORECLOSING PARTY PURSUANT TO THIS ARTICLE MAY BE PURSUED AND ANY
MOTION FOR SUMMARY JUDGMENT WHICH SHALL HAVE BEEN GRANTED AS TO AN
ANSWER INTERPOSED SHALL STILL BE EFFECTIVE.
5. THIS SECTION SHALL NOT PREEMPT, REDUCE OR LIMIT ANY RIGHTS OR OBLI-
GATIONS IMPOSED BY ANY LOCAL LAWS WITH RESPECT TO PROPERTY MAINTENANCE
AND THE LOCALITY'S ABILITY TO ENFORCE THOSE LAWS.
S 2. This act shall take effect immediately.