The general stay of foreclosure proceedings in New York directed by various Executive and Administrative orders since mid-March 2020 is finally over!
On July 24, 2020, Chief Administrative Judge Marks issued Administrative Order (AO) 157/20, which set forth the Court’s revised procedure for addressing residential foreclosure proceedings. A copy of the Order and Judge Marks issuing Memo regarding the Revised Procedure for Addressing Residential and Commercial Foreclosure Proceedings can be found here/attached. The Order lifts the general stay of foreclosure proceedings in effect since March 16, 2020. New and pending cases may now proceed subject to the provisions of the AO and Banking Law 9-x.
New First Legal Filings: Prior to first legal filing, servicers must comply with NYS Banking Law 9-x, a summary of which can be found here/attached. An affirmative statement of compliance should be provided to the firm in the Statement of Review. This statement must be supported by business records which will be required in the event of litigation.
New foreclosure filings must be served with together the form notice to Tenants and Occupants provided by the court. This notice instructs the borrowers and other defendants that they may be eligible for an extension of time to respond to the complaint.
Additionally, after service is completed, a settlement conference, pursuant to CPLR 3408 when applicable, will be conducted by the court. It is our opinion that courts will address compliance with Banking Law 9-x and other COVID-19 concerns during these conferences.
Proceeding in Pending Matters: Prior to further proceedings in any pending foreclosure case, the court must initiate a COVID-19 case conference which will be held virtually to the fullest extent possible.
For both new first legal filings and pending matters, if any party does not appear at the first conference, the court shall reschedule and make a second attempt to hold the conference before allowing further proceedings. Only after these conferences are concluded, may the court address and decide any pending or future motions for the case.
The Administrative Order does not prohibit filing new motions. Rather, it provides that the court must initiate and complete a COVID 19 case conference prior to conducting any further proceedings in the foreclosure, including ruling on the motion.
At the COVID 19 case conference, the court shall: review the procedural history of the case; confirm compliance with notice requirements; inquire into the effects, if any, the COVID-19 pandemic has had upon the parties; review any special relief under state or federal law to which the parties may be entitled; refer unrepresented parties to legal aid and housing counselors; assess pending and anticipated motions; approve briefing schedules; and use best efforts to resolve any outstanding issues.
It is our recommendation for cases not on hold with pending motions that plaintiffs be proactive in filing a Motion or other request for the court to initiate a COVID-19 case conference.
Foreclosure Sales: No foreclosure sales may be scheduled to occur prior to October 15, 2020. By September 1, 2020, each judicial district is required to will develop appropriate procedures and protocols for the safe and healthful conduct of such auctions within their districts in light of the COVID-19 pandemic. It’s our recommendation that no sales be scheduled prior to this guidance being issued.
For more information contact:
Attorney: Natalie A. Grigg, Esq.
500 Bausch & Lomb Place Rochester, NY 14614