001

NANCY T. SUNSHINE COUNT Y CLERK

CLERK OF THE SUPREME COURT COMMISSIONER OF JURORS

John W. McConnell , Esq. Counsel Office of Court Administration 25 Beaver Street 11 th Floor New York, New York 10004 VIA EMAIL

Dear Mr. McConnell:

COUNTY CLERK 'S OFFICE COUNTY OF KI NGS

SUPREME COURT BUILDING

360 ADAMS STREET

BROOKLYN, N.Y . 11 201

September 20, 2017

I have reviewed the request for public comment on proposed motion templates in residential mortgage foreclosure proceedings.

The Kings County Clerk does not accept documents for filing relating to real property, such as deeds and mortgages. Rather, in Kings County, the New York City Register is responsible for accepting deeds and mortgages for filing which relate to real property. In New York City, other than the Richmond County Clerk, who is designated to record land records (Real Property Law Section 290(4)), the other four County Clerks do not serve as City Register. (New York City Register website: http://wwwl.nyc.gov/site/finance/taxes/property-recording-property-related-documents.page)

As part of my function as the Clerk of the County, I review and accept for filing the following documents: Notices of Pendency, Building Loan Agreements, Mechanics ' Liens, Sidewalk Liens, Assignments and Notices of Lending. (Kings County Clerk's Website: http://www.nycourts.gov/courts/2jd/kingsclerk/index.shtml).

To the extent that the templates refer to recording deeds and mortgages with the City Register, that is correct for deeds and mortgages related to real property in Kings County, New York, County, Bronx County and Queens County. However, the records of deeds and mortgages related to real property in Richmond County (Staten Island) should make reference to the Richmond County Clerk - not the City Register.

In addition, outside of New York City, the recording of deeds and mortgages is with the County Clerk.

002

Accordingly, I respectfully request that the proposed motion templates incorporate New York City Register or County Clerk whenever a reference is made to the recording or assignment of deeds and mortgages.

Additionally, I respectfully recommend insertion of the language "as taxed by the Clerk of the Court" in the paragraph addressing costs and disbursement in the template. It is the responsibility of the Clerk of the Court to calculate costs and disbursements. Insertion of the language is appropriate and is currently included in judgments filed in Kings County.

For your convenience, I have attached a copy of the New York City Register' s website and Real Property Law Section 290.

Best Regards,

~J~ Nancy T. Sunshine County Clerk, Kings County

003Property Related Documents

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Recording Property-Related Documents Begin Using ACRIS

The Office of the City Register records and maintains New York City Real Property and certain Personal Property transfers such as mortgage documents for property in all boroughs except for Staten Island. This web page provides information about using the City Register Office. Please contact the Richmond County Clerk for properties on Staten Island.

Property records are public. People may use these records to get background information on purchases, mortgages, asset searches and other legal and financial transactions. Reviewing these documents is not necessarily the same as a title search.

Online Document Recording Property documents are recorded and maintained on the Automated City Register Information System (ACRIS). ACRIS provides online access to property documents and data dating back to 1966. For documents before 1966, please visit the City Register's office in each of the four boroughs to view them on microfiche and microfilm.

Deed Fraud Alert! - Click Here

Mortgage Recording Tax

A New York State and New York City Mortgage Recording tax is paid on mortgages recorded on property in the five boroughs. Some exceptions may apply. The tax is collected by the

http://wwwl .nyc.gov/site/finance/taxes/property-recording-property-related-documents.page 9/19/2017

004Property Related Documents Page 2 of 2

Office of the City Register for properties in Manhattan, the Bronx, Brooklyn and Queens using ACRIS. For properties on Staten Island it is collected in person by the Richmond County Clerk.

Tax Rates

The amount of your mortgage determines what your combined New York State and New York City Mortgage Recording Tax rates will be. Please use ACRIS Online to calculate what you owe for these taxes. Just click the "Calculate Taxes" link followed by the "Mortgage Recording Tax" tab to begin calculating the tax.

Tax Forms and Filing Information

You must record all property documents for Queens, Brooklyn, Manhattan and the Bronx online using the ACRIS System. You must provide the correct Mortgage Recording Tax information and documents when you record your property documents. This includes any exemption claims.

Legal Authority

Title 11, Chapter 26, Administrative Code Tax Law Section 253-a

Contact Information Email City Register

http://wwwl .nyc.gov/site/finance/taxes/property-recording-property-related-documents.page 9/1 9/201 7

005

§ 290. Definitions; effect of article, NY REAL PROP § 290

McKinney's Consolidated Laws of New York Annotated Real Property Law (Refs & Annos)

Chapter 50. Of the Consolidated Laws Article 9. Recording Instruments Affecting Real Property (Refs & Annos)

McKinney's Real Property Law § 290

§ 290. Definitions; effect of article

Effective: September 22, 2012

Currentness

1. The term "real property," as used in this article, includes lands, tenements and hereditaments and chattels real, except a lease for a term not exceeding three years.

2. The term "purchaser" includes every person to whom any estate or interest in real property is conveyed for a valuable consideration, and every assignee of a mortgage, lease or other conditional estate.

3. The term "conveyance" includes every written instrument, by which any estate or interest in real property is created, transferred, mortgaged or assigned, or by which the title to any real property may be affected, including an instrument in execution of a power, although the power be one of revocation only, and an instrument postponing or subordinating a mortgage lien; except a will, a lease for a term not exceeding three years, an executory contract for the sale or purchase of lands, and an instrument containing a power to convey real property as the agent or attorney for the owner of such property.

4. The term "recording officer" means the county clerk of the county, except in a county having a register, where it means the register of the county.

5. "Recording" or "recorded" means the entry, at length, upon the pages of the proper record books in a plain and legible hand writing, or in print or in symbols of drawing or by photographic process or partly in writing, partly in printing, partly in symbols of drawing or partly by photographic process or by any combination of writing, printing, drawing or photography or either or any two of them, or by an electronic process by which a record or instrument affecting real property, after delivery is incorporated into the public record. "Recording" or "recorded" also means the reproduction of instruments by microphotography or other photographic process on film which is kept in appropriate files.

6. "Electronic" means of or relating to technology having electrical, digital , magnetic, wireless, optical, electromagnetic or similar capabilities.

7. "Electronic record" means information evidencing any act, transaction, occurrence, event or other activity, produced or stored by electronic means and capable of being accurately reproduced in forms perceptible by human sensory capabilities.

WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works.

006§ 290. Definitions; effect of article, NY REAL PROP § 290

8. "Electronic signature" means an electronic sound, symbol, or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record.

9. "Paper document" means a document in a form that is not electronic.

10. " Digitized paper document" means a digitized image of a paper document that accurately depicts the information on the paper document in a format that cannot be altered without detection.

11. "Wet signature" means a signature affixed in ink or pencil or other material to a paper document.

12. This article does not apply to leases for life or lives. or for years, heretofore made, of lands in either of the counties of Albany, Ulster, Sullivan, Herkimer, Dutchess, Columbia, Delaware or Schenectady.

Credits

(L.1909, C. 52. Amended L.1925, C. 569; L. l 926, C. 227, §§ l, 2; L.1943, C. 317, § l; L.201 l , C. 549, § 2, eff. Sept. 22, 2012.)

Editors' Notes

SUPPLEMENTARY PRACTICE COMMENTARIES

by Rudolph de Winter

2012

RPL section 290, as previously amended, was further amended by the Laws of 2011, c. 549, § 2, effective September 22, 2013, in relation to permitting electronic recording of instruments affecting real property. It sets forth definitions for "electronic," "electronic record," "electronic signature," "paper document," "digitized paper document," and "wet signature," all terms employed in the newly enacted section 291-i of the Real Property Law.

2009

In Wells Fargo Bank, NA. v. Perry, 2009, 23 Misc.3d 827, 875 N.Y.S.2d 853, the bank brought an action for a judgment declaring that it was the owner of an unrecorded mortgage encumbering a parcel of property and seeking a judgment directing the County Clerk to record a copy of the mortgage as of the date on which the mortgage was executed. The court concluded that the bank owned the mortgage, but refused to direct the County Clerk to record the assignment as of the date of its execution because doing so would accelerate the priority of the mortgage adversely affecting the rights of bonafide purchasers and encumbrancers for value who had, in the interim, recorded conveyances and encumbrances. The court viewed the bank's request as an effort to create "a new judicial remedy in favor of those whose original deeds or lien indentures were not recorded due to loss, destruction or negligent acts [and] ... clearly repugnant to the statutory rights of bona fide purchasers for value who record their interests first and to those members of the public at large who

WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works . 2

007§ 290. Definitions; effect of article, NY REAL PROP § 290

are potentially interested in acquiring an interest in the premises which may be affected by prior recorded conveyances and encumbrances [citations omitted]."

When a lien is renewed pursuant to CPLR § 5014 the second ten year period cannot take affect nunc pro tune

on the expiration date of the original lien and therefore does not cut off the property interest of intervening mortgagees, the Court of Appeals held in Gletzcr v. Harris, 2009, 12 N.Y.3d 468, 882 N.Y.S.2d 386, 909

N.E.2d 1224. The last sentence of CPLR § 5014 which provides that "[t)he lien of the renewal judgment shall take effect upon the expiration of ten years from the first docketing of the original judgment" does

not automatically give retroactive effect to a renewal judgment if it is not sought until after the expiration of the original lien.

2008

In Homeowners Loan Corporation v. Recckio, 2007, 45 A.D.3d 1322, 845 N.Y.S.2d 631, the Appellate Division, Fourth Department, held that the failure of a county clerk's office to record an agreement in the

proper book pursuant to RPL § 290 constituted a ministerial error that did not void the recording and that the agreement was deemed recorded as of the time it was delivered lo the recording officer.

2007

In N YCTL 1998-1 Trust and The Bank of New York v. Ibrahiem, 2007, 15 Misc.3d 294,832 N.Y.S.2d 767, the court was called upon to determine whether a deed was recorded prior to the filing of a notice o f pendency. To

make its determination the court had to decide what consti tuted "recording" and when it was accomplished for purposes of giving constructive no tice. The deed was delivered to the New York City Register o n June 23,

2004, but was "recorded" on July 12, 2004 at 3:27 p.m. A notice of pendency was filed a t I :50 p.m. on July 12, 2004. The grantor argued that it was unaware of the foreclosure action and was no t named in the foreclosure

proceeding. The mortgagee contended that its notice of pendency was filed before the deed was recorded .

The deed had been delivered to the City Register before the filing of the notice of pendency on July 12, 2004

but was not date stamped until thereafter. The court, relying, in part on RPL § 3 I 7, concluded that when

the deed was delivered to the City Register, it was appropriately recorded and therefore was recorded prior to the filing of the notice of pendency. The court also ruled that the grantee in the deed ought to have been named in the foreclosure action.

Notes of Decisions (27)

McKinney's Real Property Law§ 290, NY REAL PROP§ 290 Current through L.2017, chapters I to 273.

End of Document ~ 2017 T homson Reuters. No claim to original U.S. Government Works.

WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3

008

October 6, 2017

rulecomments@nycourts .gov

John W. McConnell, Esq. Counsel, Office of Court Administration 25 Beaver Street, 11th Floor New York, New York 10004

Re: August 7, 2017 Request for Public Comment on Proposed Motion Templates in Residential Mortgage Foreclosure Proceedings

Dear Mr. McConnell:

I submit these comments on behalf of Legal Services NYC concerning the proposed

uniform motion templates for use statewide in cases in which homeowner defendants have

defaulted in residential foreclosure actions. We thank the Office of Court Administration (OCA)

for providing this opportunity to comment on the proposed form motion papers and have set forth below several comments and suggested improvements to these proposed form motion

papers, while also noting significant reservations about encouraging use of forms for motion

practice that should be based on attorneys' individual analyses of their cases.

Legal Services NYC provides free, high-quality legal help in civil matters to low-income

people throughout New York City. The foreclosure prevention and anti-predatory lending

practices of Legal Services NYC are located at Brooklyn Legal Services, Staten Island Legal

Services, Queens Legal Services and Bronx Legal Services, and we operate the largest free civil

legal services foreclosure prevention program in the country, with approximately 30 advocates

representing homeowners in New York's neighborhoods hardest-hit by the foreclosure crisis. We

have been at the forefront of the national fight against predatory lending practices and have

pursued affirmative litigation challenging predatory lending, credit discrimination and abusive

mortgage servicing, while representing thousands of New York City families each year

navigating New York's judicial foreclosure process and the mandatory settlement conferences,

which remain a vital tool in preventing avoidable foreclosures.

Legal Services NYC 40 Worth Street, Suite 606, New York, NY 10013

Phone: 646-442-3600 Fax: 646-442-3601 www.LegalServicesNYC.org Raun J. Rasmussen, Executive Director

Susan J. Kohlmann, Board Chair Jacob lnwald, Director of Foreclosure Prevention

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Foreclosure actions are complex, involving multiple parties such as investment trusts, mortgage servicing firms, governmental entities such as Fannie Mae, Freddie Mac, the U.S. Department of Housing Development and others, and they represent the intersection of real estate law, securities law and civil procedure, among others. These cases typically involve fact patterns that are not susceptible to "fill-in-the-blank" motion practice. As the judiciary is well aware, plaintiffs' foreclosure firms' high volume practices and associated short cuts have, in the past, led to abuses such as robo-signing, necessitating court rules and legislation to ensure that the courts were not clogged with fill-in-the-blank complaints not backed by even the most rudimentary due diligence, and caused the development of a shadow docket that clogged the courts' dockets as plaintiffs' firms proved unwilling to proceed with filed cases for which they could not vouch. We believe that promoting use of forms for motion practice in complex cases in which a cookie-cutter approach is not called for sends the wrong message, and undermines the attorney due diligence obligations set forth in CPLR 3012-b, and will encourage the sorts of practices that our judiciary has worked hard these last several years to prevent.

Additionally, we question how the promulgation of these forms will, in practice, promote efficiency, as we note that such forms do not have the force of law and motions could not be denied merely because they do not employ these forms. Accordingly, judges and court attorneys reviewing motion papers will not be spared the need to review motion papers, and even if the ' form template is employed, multiple variations in facts are contemplated, so the need for careful review of submitted motion papers will not be obviated.

Having expressed our reservations about the advisability of encouraging use of forms for a plaintiffs' bar whose abuses have in the past required intervention by the legislature and the courts, we offer a few specific comments about the proposed form motion papers.

Comments on Template 1-Motion for Default Judgment and Order of Reference (Exhibit B)

Attorney Affirmation. Attorney affirmations are appropriate for recitations of procedural facts and for placing copies of pleadings before the Court, but are generally not admissible evidence of underlying facts. We note several instances where the proposed attorney affirmation purports to provide evidence concerning underlying facts about which the attorney will generally not be competent to testify. Paragraph 6, for example, purports to recite that on a specified date the plaintiff was the holder, assignee or transferee of the subject note. In the vast majority of cases that is a fact that the attorney will not be able to state based on personal knowledge, and we do not believe it is appropriate to encourage attorneys to make such representations of fact in an affirmation of this kind.

2

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The same comment applies to paragraph 7 of the attorney affirmation, purporting to make

the factual demonstration required to support an application to substitute the plaintiff. Moreover, that paragraph garbles the law on "stan~ing" in foreclosure cases insofar as it recites that "the

underlying note and mortgage were validly assigned from Plaintiff to [Current Owner and

Holder] by allonge and physical delivery of the Note and by Assignment of Mortgage." Under New York law the use of an "allonge" is permissible in very limited circumstances, and should not be referenced in a form of this kind. Reference to both assignment and physical delivery

together is an imprecise statement of the law, and it would be preferable to leave a blank for the plaintiff to describe the factual basis justifying substitution of the plaintiff rather than specifying use of such inaccurate language. And, as stated above, any such facts should be presented by an

affiant with personal knowledge, and not in an attorney affirmation.

Paragraph 10 purports to represent that the defendants/mortgagors are not residents of the property subject to foreclosure, but, again, any such assertion in an attorney' s affirmation is likely not to be based on personal knowledge and therefore of no evidentiary value.

Paragraph 11 contains a representation concerning compliance with the condition precedent mandated by RP APL 1303, known as the Help for Homeowners in Foreclosure notice that is served simultaneously with the summons and complaint, but we note that there is no recitation concerning the RP APL 1304 (90 Day) Pre-Foreclosure notice, which is also a condition precedent to maintenance of a residential foreclosure action, the failure of which is fatal, or to compliance with RP APL 1306 filing requirements, which is also a condition precedent.

Paragraph 13(b), concerning tenants residing at the property, also recites facts that, in most instances, will not be based on personal knowledge of the attorney signing the affirmation.

Comments on Template 2-Motion to Confirm Referee Report and for a Judgment of Foreclosure and Sale ((Exhibit C).

Attorney Affirmation. Our comments parallel the concerns with the attorney affirmation

in Template 1. Paragraph 9 contains a recitation concerning one condition precedent-the RP APL 1303 notice-- but no reference to the equally important RP APL 1304 90-Day notice and RPAPL 1306 filing requirement conditions precedent. Additionally, paragraph 14 contains a factual recitation concerning the non-residence of the defendants/mortgagors, about which, in

most cases, attorney testimony will not be competent.

Order Confirming Referee Report and Judgment of Foreclosure and Sale. In paragraph Fourth, a reference to CPLR 5001(a), which gives the Court discretion to determine

the interest and date from which it shall be computed, should be included so as to ensure that, in

3

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cases where plaintiffs delay proceeding to judgment, the Court tolls interest and does not permit

dilatory plaintiffs from profiting from delay.

Comments on Template 3-Motion for a Default Judgment, Order of Reference, and Judgment of Foreclosure and Sale (Exhibit D).

Attorney Affirmation. Paragraph 6 recites facts that are not generally appropriate for an

attorney affirmation and which should be introduced by an affidavit of a competent witness with personal knowledge. Paragraph 9 has the identical language as Paragraph 7 of the Attorney Affirmation in Template 1 and should be revised consistently with that paragraph (and it should come from a witness with personal knowledge, which in most cases will not be plaintiffs

counsel). Paragraph 10 concerning defendants/mortgagors non-residence, similarly, should be in an affidavit of a witness with personal knowledge. Paragraph 11 references one condition

precedent-the RP APL 1303 notice-- but includes no reference to the equally important RP APL 13 04 (90-Day) pre-foreclosure notice condition precedent or the RP APL 13 06 filing requirements.

Default Judgment and Judgment of Foreclosure and Sale. In paragraph Fourth, a reference to CPLR 5001(a), which gives the Court discretion to determine the interest and date from which it shall be computed, should be included so as to ensure that, in cases where plaintiffs delay proceeding to judgment, the Court tolls interest and does not permit dilatory plaintiffs from profiting from delay.

Thank you again for the opportunity to comment on the proposed motion template forms. We appreciate OCA's recognition of the importance of the residential foreclosure process and the impact it has on so many unrepresented New Yorker homeowners. We also appreciate your willingness to consider our comments concerning the advisability of encouraging mass

production tactics in an area of the law that has suffered from such practices in the past, .along with our substantive comments about the proposed templates. Please do not hesitate to contact the undersigned should you have any questions or follow-up concerning these comments.

4

j inwald@lsnyc.org (646) 442-3634

1

From: Gregory Savran <gsavran@rosicki.com>Sent: Monday, October 9, 2017 2:15 PMTo: rulecommentsCc: Kelly PooleSubject: Foreclosure Templates - Rosicki Comments

 

Hi please find comments/questions below from our firm regarding the proposed templates.  Thank you.   

On page 18 of the JFS Order and 1321 Combined Order where it Orders that “the purchaser be let into possession of the property on production of the Referee’s Deed” – we suggest amending to state that “the purchaser be let into possession of the property upon personal service (CPLR 308) of the referee’s deed.”  At Eviction we are having problems with our writs with the current proposed language. 

On page 12 of the JFS Order and page 13 of the 1321 Combined Order where it states the sale must be held within 90 days of the “date of this Judgment” – does this mean the granted date or entered date?  (Or does this become moot, due to the additional paragraph on page 13 of the JFS and page 13 of the 1321 Combined Order, which states if the sale is not held within 90 days that the time fixed is extended to a time as soon as reasonably practicable?) 

On the page 16 of the JFS and the page 16 of the 1321 Combined Order, under the paragraph labeled “Fourth”, the section that states “…and then with interest from [Date] at the statutory judgment rate until the date the deed…”  the “[Date]” would be the date of entry of the JFS or Combined Order, which is unknown at the time of submission, and is also unknown at the time of granting by the Judge.  This could be changed to state “the date of entry of this Judgment”  in place of “[Date]”. 

On the bottom of page 17 of the JFS Order, the very last line that reads “…Plaintiff may seek to recover a deficiency judgment in accordance with RPAPL 1371…” , we have had some issues with county clerks not entering the JFS if we do not designate who we would be seeking against.  We would recommend adding “against (name of defendant(s))” between the words “judgment” and “in”. 

On page 19 of the JFS Order and page 20 of the 1321 Combined Order, the paragraph that starts with “ORDERED, ADJUDGED, AND DECREED, that to ensure compliance…”  wouldn’t the filing of the Report of Sale satisfy this requirement?  This seems duplicative and would create additional work. 

At the end of both the JFS and 1321 Combined Order, it states to attach the Terms of Sale.  We currently only have to do this for Yates and St. Lawrence Counties.  Is this going to be a requirement for all counties? 

For both the JFS and 1321 Combined Orders, if we have additional requests for relief for things like a 2nd Cause of Action, where would the Court like us to insert the additional decretal paragraphs for said relief? 

For both the JFS Order and 1321 Combined Order, can we keep the attorney fee language in our attorney affirmation in support of the motion or do we have to have a separate Affirmation just for fees?  We currently include the attorney fee language in our attorney affirmation in support. 

  Thank you,   Gregory M. Savran, Esq. Managing Attorney Court Appearance Department Rosicki, Rosicki & Associates P.C. 51 E. Bethpage Road 

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Plainview, New York 11803 (516) 741‐2585 x 223 Fax (516) 870‐7923    

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From: Justin F. Pane <jpane@younglawgroup.org>Sent: Monday, October 9, 2017 5:36 PMTo: rulecommentsSubject: Comments on Proposed Motion Templates in Residential Mortgage Foreclosure Proceedings

Dear OCA: Outside of facts and circumstances rendering a foreclosure action eligible for expedited adjudication under RPAPL 1309, which is reserved for vacant or “zombie” properties (see L 2016, ch 73, Part Q, § 4), it would be unconstitutional to allow an expedited judicial foreclosure process on a residential property (see NY Const, art I, § 6 [“No person shall be deprived of life, liberty or property without due process of law”]). Therefore, OCA template #3 (i.e., Ex. D—the combined motion for default judgment, order of reference, and judgment of foreclosure and sale), should not, because it cannot, be adopted by the Court for usage. Justin F. Pane Chief Paralegal

Young Law Group, PLLC 80 Orville Drive, Suite 100 Bohemia, New York 11716-2505

Tel: (631) 244 1433 Direct: (631) 244 1497 Fax: (631) 589 0949 Email: jpane@younglawgroup.org

www.younglawgroup.org

CONFIDENTIALITY NOTE: The information contained in this transmission may be privileged and confidential, and is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution orcopying of this communication is strictly prohibited. If you have received this transmission in error, please immediately reply to the sender that you have received this communication in error and then delete it. Thank you.  CIRCULAR 230 NOTICE: To comply with U.S. Treasury Department and IRS regulations, we are required to advise you that, unless expressly stated otherwise, any U.S. federal tax advice contained in this transmittal, is not intended or written to be used, and cannot be used, by any person for the purpose of (i) avoiding penalties under the U.S. Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this e-mail or attachment.

 

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