New York Court System Proposes Identification of Mortgage Servicer at Initiation of Foreclosure Case

by Ballard Spahr LLP

The New York State Unified Court System recently proposed an amendment to the Request for Judicial Intervention form (RJI) filed at the initiation of a residential mortgage foreclosure case to require identification of the mortgage servicer involved in the case. Comments on the proposal are due by September 23, 2013.

A memorandum from the Court System said it was proposing the amendment at the suggestion of "[a] number of stakeholders involved in mortgage foreclosure cases, including judges and court staff." The memorandum stated that "[i]dentifying the mortgage servicer would enable the court to search for cases by servicer and facilitate the scheduling of matters in mortgage foreclosure parts." No other explanation was provided.

The RJI is a case-initialization document typically filed when an action is commenced in the New York Supreme Courts (or otherwise when a judge’s involvement is necessary for a proceeding). It calls for basic information about the case, such as a complete listing of the parties, identification of counsel, the nature and status of the action, and any related cases. In 2011, the Court System promulgated several addenda to the general RJI, one of which is the Foreclosure Addendum.

The Foreclosure Addendum is used for mortgage foreclosure actions where the property is an owner-occupied residential property housing one to four families or an owner-occupied condominium. It requires the identification and contact information for the defendant and the date on which the 90-day Notice was sent as required under Section 1304(1) of the Real Property Actions and Proceedings Law (mandating that a lender give notice and certain disclosures to a borrower prior to commencing a mortgage foreclosure action). The RJI with the Foreclosure Addendum must be filed when proof of service of the summons and complaint is filed with the county clerk's office. The proposed amendment to the Foreclosure Addendum is simply a line item for including the mortgage servicer’s name. No other information about the mortgage servicer is required, and the mortgage servicer evidently is to be identified even if it is not a party to the action.

The RJI with the Foreclosure Addendum is the trigger for identifying cases that qualify for early settlement conferences as required under state law for certain residential mortgage foreclosure cases. In 2008, the New York Legislature enacted CPLR 3408 to mandate a conference in residential mortgage foreclosure actions within 60 days of filing proof of service "for the purpose of holding settlement discussions pertaining to the relative rights and obligations of the parties under the mortgage loan documents." (A very recent amendment to Rule 3408(a), enacted July 31 and effective August 30, 2013, requires a plaintiff to file proof of service within 20 days of service, expediting the settlement-conferencing process.) Rule 3408 further specifies requirements for the settlement conference.

Shortly after enactment of Rule 3408, the Court System issued a new rule applicable to residential mortgage foreclosure actions, 22 NYCRR 202.12-a, to set forth the schedule and procedures for the settlement conferences. The Rule provides that "[t]he RJI. . . shall request that a settlement conference be scheduled." It also includes a provision that, upon filing the RJI, the court shall send a copy of it (or otherwise the defendant's name and contact information) to a housing counseling agency on a list designated by the Division of Housing and Community Renewal "for the purpose of that agency making the homeowner aware of housing counseling and foreclosure prevention services and options available to the parties."

Rule 202.12-a, similarly to CPLR 3408, sets forth detailed procedures and requirements for the settlement conference in mortgage foreclosure actions. For example, both plaintiff and defendant are directed to bring certain documents to the conference, and both sides "shall engage in settlement discussions in good faith to reach a mutually agreeable resolution, including a loan modification if possible." Both provisions should be reviewed carefully in preparation for a settlement conference.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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