NY State Senate Bill 2021-S7293

Senate Bill S7293

2021-2022 Legislative Session

Relates to the rights of parties involved in foreclosure actions

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Archive: Last Bill Status - In Senate Committee Housing, Construction And Community Development Committee

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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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 05, 2022	referred to housing, construction and community development
Jul 16, 2021	referred to rules

co-Sponsors

2021-S7293 (ACTIVE) - Details

Current Committee:: Senate Housing, Construction And Community Development
Law Section:: Real Property Actions and Proceedings Law
Laws Affected:: Amd §1301, RPAP L; amd R3217, §205, add §205-a, CPLR

2021-S7293 (ACTIVE) - Summary

Relates to the rights of parties involved in foreclosure actions; provides additional details regarding the commencement and termination of certain actions related to real property.

2021-S7293 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S7293

SPONSOR: THOMAS
 
TITLE OF BILL:

An act to amend the real property actions and proceedings law and the
civil practice law and rules, in relation to the rights of parties
involved in foreclosure actions

 
PURPOSE AND INTENT OF BILL:

The legislature finds that there is an ongoing problem with abuses of
the judicial foreclosure process and lenders' attempts to manipulate
statutes of limitations; that the problem has been exacerbated by recent
court decisions which, contrary to the intent of the legislature, have
given mortgage lenders and loan servicers opportunities to avoid strict
compliance with remedial statutes and manipulate statutes of limitation
to their advantage; and that the purpose of the present legislation is
to clarify the meaning of existing statutes, and to rectify these erro-
neous judicial interpretations thereof.

Accordingly, this bill amends certain statutes and rules to clarify the

existing law and overturn certain court decisions to ensure the laws of
this state apply equally to all litigants, including those currently
involved in mortgage foreclosure actions, in order to ensure that
parties purporting to sue on mortgage debt are bound by the same stat-
utes of limitations that bind all other litigants. The aim of the bill
is to thwart and eliminate abusive and unlawful litigation tactics that
have been adopted and pursued in mortgage foreclosure actions to manipu-
late the law and judiciary to yield to expediency and the convenience of
mortgage banking and servicing institutions at the expense of the final-
ity and repose that statutes of limitations are meant to ensure.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 of the bill amends the RPAPL to address the deleterious and
onerous effect of a recent decision of the Appellate Division in Citi
mortgage, Inc. v. Ramirez, -AD3d- (2020), which effectively gives mort-
gagees a second bite of the mortgage apple, permitting actions to be
instituted on a note after an foreclosure action based on the same debt
has already been adjudicated to be barred by the statute of limitations,
making a mockery of the well well-settled statutory and case law
concerning election of remedies in a connections with proceedings to
enforce mortgage debts.

Section 2 of the bill amends CPLR Sec. 3217 as concerns discontinuance
of mortgage foreclosure actions, and is a response to the Court of
Appeals recent holding Freedom Mtge. Corp. v Engel,NY3d, 2021 NY Slip Op
01090 (2021). This will restore longstanding law that made it clear that
a lenders' discontinuance of a foreclosure action that accelerated a
mortgage loan is not a revocation of acceleration unless it clearly and
unequivocally advises the borrower that it is doing so.

Sections 3 and 4 of the bill create a new "savings" statute expressly
for mortgage foreclosure cases in order to address judicial decisions
that have been contrary to the spirit of this savings provision which
have been overly indulgent of foreclosure plaintiffs whose cases have
been dismissed for various forms of neglect, who are not entitled to the
six months grace period meant for diligent plaintiffs whose cases were
dismissed for reasons that do not reflect their own fault. This will
ensure that mortgagees do not have an unfettered ability to bring numer-
ous successive actions on the same mortgage, without any limitation in
law.

Section 5 contains an effective date of immediately.

 
JUSTIFICATION:

As a direct result of the aforementioned judicial decisions, thousands
of New York homeowners who secured closure of their cases by operation
of longstanding statute of limitations principles are at risk of an
onslaught of successive foreclosure actions that would otherwise be
barred by the statute of limitations under longstanding statutory and
case law. This will cause the loss of countless homes and will burden
the the Courts, which had significant budget cuts and forced retirement
of-dozens of senior judges, with cases that should be barred by the
statute of limitations and with excessive motion practice once the fore-
closure moratoriums end. This bill levels the fields for all homeowners,
and ensures the statute of limitation applies to all parties equally
without exemption.

 
PRIOR LEGISLATIVE HISTORY:

New Bill, 2021.

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.

 
EFFECTIVE DATE:
Immediately.

2021-S7293 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7293
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                               July 16, 2021
                                ___________
 
 Introduced  by  Sen.  THOMAS -- read twice and ordered printed, and when
   printed to be committed to the Committee on Rules
 
 AN ACT to amend the real property actions and proceedings  law  and  the
   civil  practice  law  and  rules, in relation to the rights of parties
   involved in foreclosure actions

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Subdivision 3 of section 1301 of the real property actions
 and proceedings law, as added by chapter 312 of the  laws  of  1962,  is
 amended and a new subdivision 4 is added to read as follows:
   3.  While the action is pending or after final judgment for the plain-
 tiff therein, no other  action  shall  be  commenced  or  maintained  to
 recover  any  part  of  the mortgage debt, without leave of the court in
 which the former action was  brought.  THIS  SUBDIVISION  SHALL  NOT  BE
 TREATED  AS  A STAY OR STATUTORY PROHIBITION FOR PURPOSES OF CALCULATING
 THE TIME WITHIN WHICH AN ACTION SHALL BE COMMENCED PURSUANT TO  SECTIONS
 TWO  HUNDRED FOUR AND TWO HUNDRED THIRTEEN OF THE CIVIL PRACTICE LAW AND
 RULES.
   4. IF AN ACTION TO COLLECT ANY PART OF THE MORTGAGE  DEBT  IS  ADJUDI-
 CATED  TO  BE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS, ANY OTHER
 ACTION SEEKING TO RECOVER ANY PART OF THE SAME MORTGAGE DEBT SHALL  ALSO
 BE BARRED BY THE STATUTE OF LIMITATIONS.
   §  2.  Rule  3217  of  the  civil practice law and rules is amended by
 adding a new subdivision (e) to read as follows:
   (E) EFFECT OF DISCONTINUANCE UPON CERTAIN INSTRUMENTS. IN  ANY  ACTION
 ON AN INSTRUMENT DESCRIBED UNDER SUBDIVISION FOUR OF SECTION TWO HUNDRED
 THIRTEEN OF THIS CHAPTER IN WHICH THE UNDERLYING INDEBTEDNESS WAS ACCEL-
 ERATED  BY THE COMMENCEMENT OF SUCH ACTION, THE VOLUNTARY DISCONTINUANCE
 OF SUCH ACTION, WHETHER ON MOTION OR BY STIPULATION, SHALL NOT HAVE  THE
 EFFECT  OF  REVOKING ACCELERATION UNLESS SUCH DISCONTINUANCE IS EFFECTED
 WITHIN SIX YEARS OF  THE  COMMENCEMENT  OF  THE  ACTION  AND  EXPLICITLY
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD11254-04-1

 S. 7293                             2
 
 ADVISES  THE  DEFENDANT  OR DEFENDANTS THAT SUCH ACCELERATION IS REVOKED
 AND ADVISES THE DEFENDANT OR DEFENDANTS THAT THE PLAINTIFF SHALL  RESUME
 ACCEPTING INSTALLMENT PAYMENTS.
   §  3.  Subdivision  (c)  of  section 205 of the civil practice law and
 rules, as amended by chapter 216 of the laws of 1992, is amended to read
 as follows:
   (c) Application. This section also applies  to  a  proceeding  brought
 under  the workers' compensation law BUT SHALL NOT APPLY TO ANY PROCEED-
 ING GOVERNED BY SECTION TWO HUNDRED FIVE-A OF THIS ARTICLE.
   § 4. The civil practice law and rules  is  amended  by  adding  a  new
 section 205-a to read as follows:
   § 205-A. TERMINATION OF CERTAIN ACTIONS RELATED TO REAL PROPERTY.  (A)
 IF  AN  ACTION  UPON  AN  INSTRUMENT DESCRIBED UNDER SUBDIVISION FOUR OF
 SECTION TWO HUNDRED THIRTEEN OF THIS ARTICLE IS TIMELY COMMENCED AND  IS
 TERMINATED  IN ANY MANNER OTHER THAN A VOLUNTARY DISCONTINUANCE, A FAIL-
 URE TO OBTAIN PERSONAL JURISDICTION OVER THE DEFENDANT, A  DISMISSAL  OF
 THE  COMPLAINT  FOR  ANY  FORM OF NEGLECT, INCLUDING, BUT NOT LIMITED TO
 THOSE SPECIFIED IN SUBDIVISION THREE OF SECTION THIRTY-ONE HUNDRED TWEN-
 TY-SIX, SECTION THIRTY-TWO  HUNDRED  FIFTEEN,  RULE  THIRTY-TWO  HUNDRED
 SIXTEEN AND RULE THIRTY-FOUR HUNDRED FOUR OF THIS CHAPTER, FOR VIOLATION
 OF  ANY  UNIFORM  COURT  RULES  OR INDIVIDUAL PART RULES, FOR FAILURE TO
 COMPLY WITH ANY COURT SCHEDULING ORDERS, OR BY DEFAULT DUE TO NONAPPEAR-
 ANCE FOR CONFERENCE OR AT A CALENDAR  CALL,  OR  BY  FAILURE  TO  TIMELY
 SUBMIT  ANY ORDER OR JUDGMENT, OR UPON A FINAL JUDGMENT UPON THE MERITS,
 THE PLAINTIFF, OR, IF  THE  PLAINTIFF  DIES  AND  THE  CAUSE  OF  ACTION
 SURVIVES,  HIS  OR  HER  EXECUTOR  OR  ADMINISTRATOR, MAY COMMENCE A NEW
 ACTION UPON THE SAME TRANSACTION OR OCCURRENCE OR SERIES OF TRANSACTIONS
 OR OCCURRENCES WITHIN SIX MONTHS  FOLLOWING  THE  TERMINATION,  PROVIDED
 THAT THE NEW ACTION WOULD HAVE BEEN TIMELY COMMENCED WITHIN THE APPLICA-
 BLE LIMITATIONS PERIOD PRESCRIBED BY LAW AT THE TIME OF THE COMMENCEMENT
 OF  THE  PRIOR  ACTION  AND  THAT SERVICE UPON THE ORIGINAL DEFENDANT IS
 EFFECTED WITHIN SUCH SIX-MONTH PERIOD. FOR PURPOSES OF THIS SUBDIVISION:
   1. AN ASSIGNEE OF THE PLAINTIFF SHALL NOT BE DEEMED TO  HAVE  CAPACITY
 TO  MAINTAIN  THE  ACTION  AS A SUCCESSOR PLAINTIFF, UNLESS PLEADING AND
 PROVING THAT SUCH ASSIGNEE IS ACTING  ON  BEHALF  OF  OR  ASSERTING  THE
 RIGHTS OF THE ORIGINAL PLAINTIFF; AND
   2.  IN  NO  EVENT  SHALL THE PLAINTIFF RECEIVE MORE THAN ONE SIX-MONTH
 EXTENSION.
   (B) WHERE THE DEFENDANT HAS SERVED AN ANSWER AND THE  ACTION  UPON  AN
 INSTRUMENT DESCRIBED UNDER SUBDIVISION FOUR OF SECTION TWO HUNDRED THIR-
 TEEN  OF THIS ARTICLE IS TERMINATED IN ANY MANNER, AND A NEW ACTION UPON
 THE SAME TRANSACTION OR OCCURRENCE OR SERIES OF TRANSACTIONS  OR  OCCUR-
 RENCES  IS COMMENCED BY THE ORIGINAL PLAINTIFF, OR A SUCCESSOR IN INTER-
 EST OR ASSIGNEE OF THE ORIGINAL PLAINTIFF, THE ASSERTION OF ANY CAUSE OF
 ACTION OR DEFENSE BY THE DEFENDANT IN THE NEW ACTION SHALL BE TIMELY  IF
 SUCH CAUSE OF ACTION OR DEFENSE WAS TIMELY ASSERTED IN THE PRIOR ACTION.
   § 5. This act shall take effect immediately.

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Senate Bill S7293

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Sponsored By

Kevin Thomas