Day Pitney remains committed to providing quality legal counsel, while protecting our clients and employees, and transforming our communities into more just, equal and equitable spaces. For more information, please visit our COVID-19 Resource Center | Racial Justice and Equity Task Force.
On July 31, Governor Andrew Cuomo signed into law a bill requiring that, at the commencement of every new foreclosure action on owner-occupied residential property, the foreclosure plaintiff's attorney file a "certificate of merit" attesting to his or her knowledge, information and belief that the foreclosure plaintiff is the "creditor entitled to enforce rights" under the subject loan documents, and that the foreclosure suit has a "reasonable basis." The law, to be codified in a new Section 3012-b to the New York Civil Practice Law and Rules, also requires the foreclosure attorney to attach to his or her certificate a copy of the note or bond, mortgage, and all assignments of mortgage, modifications, or extension and/or consolidation agreements, if not already attached to the complaint. If such documents have been lost or destroyed, the law requires the foreclosure attorney to attach to his or her certificate a supplemental affidavit from the attorney or a representative of the foreclosure plaintiff "attesting that such documents are lost whether by destruction, theft or otherwise."
The certificates of merit are designed to replace the so-called Lippman Affirmations required by court rule, pursuant to which the foreclosure plaintiff's attorney was required to state that, to the best of his or her knowledge, the foreclosure plaintiff had legal standing to foreclose.
The law also amends Rule 3408 of the Civil Practice Law and Rules to require the foreclosure plaintiff to file with the court proof of service of its papers (including its attorney's certificate of merit) on the borrower within 20 days of such service, however service is made.
The law is designed to address the "shadow" foreclosure dockets of foreclosure cases that have been commenced but which the foreclosure plaintiffs have not yet pursued. In such cases, there could be a lengthy delay in the scheduling and commencement of settlement conferences required by Rule 3408. That delay results in the continued accrual of interest and fees during a time that the borrower cannot take advantage of the court-ordered and court-supervised mediation procedure. The requirements that the certificate of merit be filed at the commencement of the action and that proof of service be filed within 20 days of service, when combined with the existing requirement that the first mandatory settlement conference be held within 60 days of filing of proof of such service, mean the new law ensures that, once a foreclosure action is brought, the settlement conference phase begins quickly.
The law applies to those foreclosure actions commenced on or after the law's effective date of August 30, 2013.
In response to the law, mortgage lenders and servicers should take care to ensure that all required documents are made available to their attorneys prior to the commencement of any foreclosure action and that any foreclosure action is otherwise ready to be fully pursued before it is commenced.
Day Pitney Partner Joy Harmon Sperling will present on a panel entitled "How to Navigate Debt Collection Restrictions, Manage Liquidity Challenges, and Reconcile Opposing Demands from Consumers and Investors as a Servicer," at the 27th American Conference Institute National Forum on Residential Mortgage Regulatory Enforcement and Litigation.
Mark Romance authored an article, "Five Tips for Representing a Non-Party Served with a Document Subpoena: Welcome to the Party?," published by the American Bar Association Section of Litigation.
On October 30, Andrew Ingalls spoke on a panel, "Emerging Federal Statute Developments and Strategies for Defending Against Innovative Borrower Claims," at the 26th National Forum on Residential Mortgage Regulatory Enforcement & Litigation, presented by the American Conference Institute (ACI) and held in Dallas, TX.
Day Pitney Florida Litigation Partner Mark Romance was featured on the American Bar Association's Legal Talk Network's Litigation Radio Podcast titled, "How to Handle the Unexpected in Court."
New Jersey Partner Christina Livorsi was featured in an in-depth New Jersey Law Journal Q&A titled, "Meet Day Pitney's Livorsi, the Woman Whose Big Courtroom Victory Continues to Reverberate Across 2 Sectors."
Kevin Duffy and Naju Lathia were honored at the New Jersey Legal Awards Ceremony on September 23, at the Brooklake Country Club in Florham Park, NJ.
Day Pitney Litigation partner Mark Romance appointment to the ABA's Commercial and Business Litigation Committee as co-chair was featured in Intellectual Property Magazine.
This website may use cookies, pixel tags and other passive tracking technologies, including Google Analytics, to improve functionality and performance. For more information, see our Privacy Policy. By using our website, you are consenting to our use of these tracking technologies. You can alter the configuration of your browser to refuse to accept cookies, but if you do so, it is possible that some areas of web sites that use cookies will not function properly when you view them. To learn more about how to delete and manage cookies, refer to the support instructions for each browser (e.g., see AllAboutCookies.org). You may locate Google Analytics' currently available opt-outs for the web here.
This website may use cookies, pixel tags and other passive tracking technologies, including Google Analytics, to improve functionality and performance. For more information, see our Privacy Policy. By using our website, you are consenting to our use of these tracking technologies. You can alter the configuration of your browser to refuse to accept cookies, but if you do so, it is possible that some areas of web sites that use cookies will not function properly when you view them. To learn more about how to delete and manage cookies, refer to the support instructions for each browser (e.g., see AllAboutCookies.org). You may locate Google Analytics' currently available opt-outs for the web here.