NY State Senate Bill 2021-S5785A

Senate Bill S5785A

Signed By Governor

2021-2022 Legislative Session

Makes the affirmative allegation provisions for high-cost loans and subprime home loans applicable to foreclosures of residential mortgages covering one to four family dwellings

download bill text pdf

Archive: Last Bill Status - Signed by Governor

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Aug 02, 2021	approval memo.16 signed chap.395
Jul 21, 2021	delivered to governor
Jun 07, 2021	returned to senate passed assembly ordered to third reading rules cal.82 substituted for a2502a referred to ways and means returned to assembly repassed senate
Jun 03, 2021	amended on third reading 5785a
Jun 03, 2021	vote reconsidered - restored to third reading returned to senate recalled from assembly
Jun 01, 2021	recommitted to judiciary substitution reconsidered
May 24, 2021	ordered to third reading rules cal.82 substituted for a2502
May 12, 2021	referred to judiciary delivered to assembly passed senate
May 10, 2021	advanced to third reading
May 05, 2021	2nd report cal.
May 04, 2021	1st report cal.919
Mar 18, 2021	referred to housing, construction and community development

Votes

- Jun 7, 2021 - Floor Vote
  S5785A
  
  45
  
  Aye
  
  18
  
  Nay
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Jun 7, 2021
      
      aye (45)
      
      Addabbo Jr.
      
      Bailey
      
      Benjamin
      
      Biaggi
      
      Breslin
      
      Brisport
      
      Brooks
      
      Brouk
      
      Comrie
      
      Cooney
      
      Felder
      
      Gaughran
      
      Gianaris
      
      Gounardes
      
      Harckham
      
      Hinchey
      
      Hoylman-Sigal
      
      Jackson
      
      Kaminsky
      
      Kaplan
      
      Kavanagh
      
      Kennedy
      
      Krueger
      
      Liu
      
      Mannion
      
      May
      
      Mayer
      
      Myrie
      
      O'Mara
      
      Parker
      
      Persaud
      
      Ramos
      
      Reichlin-Melnick
      
      Ritchie
      
      Rivera
      
      Ryan
      
      Salazar
      
      Sanders Jr.
      
      Savino
      
      Sepúlveda
      
      Serrano
      
      Skoufis
      
      Stavisky
      
      Stewart-Cousins
      
      Thomas
      
      nay (18)
      
      Akshar
      
      Borrello
      
      Boyle
      
      Gallivan
      
      Griffo
      
      Helming
      
      Jordan
      
      Lanza
      
      Martucci
      
      Mattera
      
      Oberacker
      
      Ortt
      
      Palumbo
      
      Rath III
      
      Serino
      
      Stec
      
      Tedisco
      
      Weik
  May 12, 2021 - Floor Vote
  S5785A
  
  45
  
  Aye
  
  18
  
  Nay
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: May 12, 2021
      
      aye (45)
      
      Addabbo Jr.
      
      Bailey
      
      Benjamin
      
      Biaggi
      
      Breslin
      
      Brisport
      
      Brooks
      
      Brouk
      
      Comrie
      
      Cooney
      
      Felder
      
      Gaughran
      
      Gianaris
      
      Gounardes
      
      Harckham
      
      Hinchey
      
      Hoylman-Sigal
      
      Jackson
      
      Kaminsky
      
      Kaplan
      
      Kavanagh
      
      Kennedy
      
      Krueger
      
      Lanza
      
      Liu
      
      Mannion
      
      May
      
      Mayer
      
      Myrie
      
      Parker
      
      Persaud
      
      Ramos
      
      Reichlin-Melnick
      
      Ritchie
      
      Rivera
      
      Ryan
      
      Salazar
      
      Sanders Jr.
      
      Savino
      
      Sepúlveda
      
      Serrano
      
      Skoufis
      
      Stavisky
      
      Stewart-Cousins
      
      Thomas
      
      nay (18)
      
      Akshar
      
      Borrello
      
      Boyle
      
      Gallivan
      
      Griffo
      
      Helming
      
      Jordan
      
      Martucci
      
      Mattera
      
      O'Mara
      
      Oberacker
      
      Ortt
      
      Palumbo
      
      Rath III
      
      Serino
      
      Stec
      
      Tedisco
      
      Weik
  May 4, 2021 - Housing, Construction And Community Development Committee Vote
  S5785A
  
  8
  
  Aye
  
  1
  
  Nay
  
  2
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Housing, Construction And Community Development Committee Vote: May 4, 2021
      
      aye (8)
      
      Brisport
      
      Jackson
      
      Kavanagh
      
      Mannion
      
      Myrie
      
      Rivera
      
      Ryan
      
      Salazar
      
      nay (1)
      
      Boyle
      
      aye wr (2)
      
      Helming
      
      Martucci

Bill Amendments

Original

A (Active)

2021-S5785 - Details

See Assembly Version of this Bill:: A2502
Law Section:: Real Property Actions and Proceedings Law
Laws Affected:: Amd §1302, RPAP L
Versions Introduced in Other Legislative Sessions:: 2015-2016: A10373
2017-2018: S5928, A1371
2019-2020: S3216, A5611

2021-S5785 - Summary

Makes the affirmative allegation provisions for high-cost loans and subprime home loans applicable to foreclosures of residential mortgages covering one to four family dwellings.

2021-S5785 - Sponsor Memo

                                
 
BILL NUMBER: S5785

SPONSOR: COMRIE
 
TITLE OF BILL:

An act to amend the real property actions and proceedings law, in
relation to foreclosure of mortgages

 
SUMMARY OF PROVISIONS OF BILL:

Section 1: Amends section 1302 of RPAPL to require that foreclosing
plaintiffs plead ownership of the note and mortgage applicable to all
homeowners instead of limited to only homeowners with subprime and high-
cost home loans.  It also ensures that RPAPL 1302 defenses are applica-
ble to all homeowners instead of limited to just homeowners with
subprime and high-cost home loans.

Section 2: Sets the effective date on the first of January after it
shall have become law.

 
JUSTIFICATION:

There has been a nationwide increase in foreclosures throughout the
country. However, many of the foreclosure actions initiated by lenders
and trusts to obtain the securitized debt obligation (the property),"
have called into question the inherent legality of the proceedings, due
to the plaintiffs lack of "standing" and in many cases it is simply not
clear who actually owns the mortgage or debt.  Despite the fact that in
order to have an appropriate foreclosure proceeding the filing party
must legally have "standing to commence a foreclosure action" against a
mortgagor or borrower, many lenders and trusts alike continue to move
forward with bringing a legal action against borrowers when many of
these lenders don't even own the debts in the first place.

In New York, numerous court decisions have held that if the borrower
doesn't raise standing upon answering the foreclosure action, the
defense of standing is waived for the borrower. See, HSBC Bank USA v.
Dammond, 59 AD3d 679 (2nd Dept 2009). Unfortunately, many times the
borrower often has no way of knowing who owns the loan, and despite the
clear requirement that the plaintiff own the note, if the defendant
borrower does not raise the issue initially in an answer or pre-answer
motion to dismiss up front, they may never be able to raise it again. In
this situation, an entity foreclosing can foreclose on a home they don't
have any legal right to foreclose on.  The proposed bill would require
plaintiffs in a foreclosure action to plead ownership of the note and
mortgage for all home loans and would enable all homeowners to avail the
statutory defenses to protect their homes, as opposed to just those
homeowners with subprime or high-cost home loans.

 
LEGISLATIVE HISTORY:

2016: A.10373-Rules

2017-18: S.5928/A.1371

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.

 
EFFECTIVE DATE:
First of January after it shall have become law.

2021-S5785 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5785
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                              March 18, 2021
                                ___________
 
 Introduced  by  Sen.  COMRIE -- 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 foreclosure of mortgages

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  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:
   §  1302. Foreclosure of [high-cost home loans and subprime home loans]
 MORTGAGES. 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  bank-
 ing  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 section
 thirteen hundred four of this article.
   2. It shall be a defense to an action to foreclose a mortgage  [for  a
 high-cost  home  loan  or subprime home loan] that the terms of the home
 loan or the actions of the lender violate any provision of section six-l
 or six-m of the banking law or section thirteen  hundred  four  of  this
 article.
   §  2. This act shall take effect on the first of January next succeed-
 ing the date on which it shall have become a  law  and  shall  apply  to
 actions commenced on or after such date.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD00013-01-1

2021-S5785A (ACTIVE) - Details

See Assembly Version of this Bill:: A2502
Law Section:: Real Property Actions and Proceedings Law
Laws Affected:: Amd §1302, RPAP L
Versions Introduced in Other Legislative Sessions:: 2015-2016: A10373
2017-2018: S5928, A1371
2019-2020: S3216, A5611

2021-S5785A (ACTIVE) - Summary

Makes the affirmative allegation provisions for high-cost loans and subprime home loans applicable to foreclosures of residential mortgages covering one to four family dwellings.

2021-S5785A (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S5785A

SPONSOR: COMRIE
 
TITLE OF BILL:

An act to amend the real property actions and proceedings law, in
relation to foreclosure of residential mortgages covering one to four
family dwellings

 
SUMMARY OF PROVISIONS OF BILL:

Section 1: Amends section 1302 of RPAPL to require that foreclosing
plaintiffs plead ownership of the note and mortgage applicable to all
homeowners instead of limited to only homeowners with subprime and high-
cost home loans. It also ensures that RPAPL 1302 defenses are applicable
to all homeowners instead of limited to just homeowners with subprime
and high-cost home loans.

Section 2: Sets the effective date on the first of January after it
shall have become law.

JUSTIFICATION:

There has been a nationwide increase in residential foreclosures
throughout the country in recent years. However, many of the foreclosure
actions initiated by lenders and trusts to obtain the securitized debt
obligation (the property) have called into question the inherent legali-
ty of the proceedings, due to the plaintiffs lack of "capacity to sue"
and in many cases it is simply not clear who actually owns the mortgage
or debt. Despite the fact that in order to have an appropriate foreclo-
sure proceeding the filing party must legally have standing to commence
a foreclosure action against a mortgagor or borrower, many lenders and
trusts alike continue to move forward with bringing a legal action
against borrowers when many of these lenders don't even own the mortgage
or the underlying debt in the first place.

In New York, numerous court decisions had held that if the borrower
doesn't raise standing upon answering the foreclosure action, the
defense of standing is waived for the borrower. See, HSBC Bank USA v
Dammond, 59 AD3d 679 (2nd Dept 2009). In response, we have enacted
legislation which makes standing a non-waivable defense. Ch. 739 of
2019. However, that enactment does not sufficiently obviate the problem
which this legislation is designed to address, that of putative mortga-
gees not actually possessing the right to proceed in court because they
do not own the note or and/or mortgage.

The proposed bill would require plaintiffs in a foreclosure action to
Affirmatively plead ownership of the note and mortgage for all home
loans and would enable all homeowners to avail the statutory defenses to
protect their homes, as opposed to just those homeowners with subprime
or high-cost home loans.

 
LEGISLATIVE HISTORY:

2020: A.5611/S.3216 - A.Cal/S.Cal

2019: A.5611/S.3216 - A.Cal/S.Rules

2017-18: A.1371/S.5928 - A.Cal/S. Housing
2016: A.10373 - A.Rules

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.

 
EFFECTIVE DATE:
First of January after it shall have become law.

2021-S5785A (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5785--A
     Cal. No. 919
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                              March 18, 2021
                                ___________
 
 Introduced  by  Sen.  COMRIE -- read twice and ordered printed, and when
   printed to be committed to the Committee on Housing, Construction  and
   Community  Development  --  reported  favorably  from  said committee,
   ordered to first and second report, ordered to a third reading, passed
   by Senate and delivered to the Assembly, recalled, vote  reconsidered,
   restored  to  third  reading, amended and ordered reprinted, retaining
   its place in the order of third reading
 
 AN ACT to amend the  real  property  actions  and  proceedings  law,  in
   relation  to foreclosure of residential mortgages covering one to four
   family dwellings
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  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:
   §  1302. Foreclosure of [high-cost home loans and subprime home loans]
 CERTAIN RESIDENTIAL MORTGAGES. 1.  Any complaint served in a  proceeding
 initiated ON A RESIDENTIAL MORTGAGE COVERING A ONE TO FOUR FAMILY DWELL-
 ING  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  allega-
 tion 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, FOR LOANS
 GOVERNED BY THOSE PROVISIONS, and section thirteen hundred four of  this
 article.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD00013-03-1

 S. 5785--A                          2
 
   2.  It  shall be a defense to an action to foreclose a mortgage [for a
 high-cost home loan or subprime home loan] that the terms  of  the  home
 loan or the actions of the lender violate any provision of section six-l
 or  six-m  of  the  banking law or section thirteen hundred four of this
 article.
   §  2. This act shall take effect on the first of January next succeed-
 ing the date on which it shall have become a  law  and  shall  apply  to
 actions commenced on or after such date.

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