Court Opinions

State Laws

US Code

US Constitution

New York Civil Practice Law & Rules - Article 34 - § R3408 Mandatory Settlement Conference in Residential Foreclosure Actions

Legal Research Home > New York Lawyer

 
    Rule  3408. Mandatory settlement conference in residential foreclosure
  actions.  * (a) In any residential foreclosure action involving  a  home
  loan  as  such  term  is defined in section thirteen hundred four of the
  real property actions and proceedings law, in which the defendant  is  a
  resident  of the property subject to foreclosure, the court shall hold a
  mandatory conference within sixty days after  the  date  when  proof  of
  service is filed with the county clerk, or on such adjourned date as has
  been  agreed  to  by  the parties, for the purpose of holding settlement
  discussions pertaining to the relative rights  and  obligations  of  the
  parties under the mortgage loan documents, including, but not limited to
  determining   whether   the  parties  can  reach  a  mutually  agreeable
  resolution to help the defendant avoid  losing  his  or  her  home,  and
  evaluating  the potential for a resolution in which payment schedules or
  amounts may be modified or other workout options may be agreed  to,  and
  for whatever other purposes the court deems appropriate.
    * NB Effective until February 13, 2015
    * (a) In any residential foreclosure action involving a high-cost home
  loan consummated between January first, two thousand three and September
  first, two thousand eight, or a subprime or nontraditional home loan, as
  those  terms are defined under section thirteen hundred four of the real
  property actions and proceedings  law,  in  which  the  defendant  is  a
  resident  of the property subject to foreclosure, the court shall hold a
  mandatory conference within sixty days after  the  date  when  proof  of
  service is filed with the county clerk, or on such adjourned date as has
  been  agreed  to  by  the parties, for the purpose of holding settlement
  discussions pertaining to the relative rights  and  obligations  of  the
  parties under the mortgage loan documents, including, but not limited to
  determining   whether   the  parties  can  reach  a  mutually  agreeable
  resolution to help the defendant avoid  losing  his  or  her  home,  and
  evaluating  the potential for a resolution in which payment schedules or
  amounts may be modified or other workout options may be agreed  to,  and
  for whatever other purposes the court deems appropriate.
    * NB Effective February 13, 2015
    (b)  At  the  initial  conference  held  pursuant to this section, any
  defendant currently appearing pro se, shall be deemed  to  have  made  a
  motion  to  proceed as a poor person under section eleven hundred one of
  this chapter. The court shall determine whether such permission shall be
  granted pursuant to standards set forth in section eleven hundred one of
  this chapter. If  the  court  appoints  defendant  counsel  pursuant  to
  subdivision  (a) of section eleven hundred two of this chapter, it shall
  adjourn the conference to a date certain for appearance of  counsel  and
  settlement  discussions pursuant to subdivision (a) of this section, and
  otherwise shall proceed with the conference.
    (c) At any conference held pursuant to  this  section,  the  plaintiff
  shall  appear in person or by counsel, and if appearing by counsel, such
  counsel shall be fully authorized to dispose of the case. The  defendant
  shall  appear in person or by counsel. If the defendant is appearing pro
  se, the court shall advise the defendant of the nature of the action and
  his  or  her  rights  and  responsibilities  as   a   defendant.   Where
  appropriate,  the  court may permit a representative of the plaintiff to
  attend the settlement conference telephonically or by video-conference.
    (d) Upon the filing of a request  for  judicial  intervention  in  any
  action  pursuant  to this section, the court shall send either a copy of
  such request or the defendant's name, address and telephone  number  (if
  available)  to  a  housing  counseling  agency  or  agencies  on  a list
  designated by the division of housing  and  community  renewal  for  the
  judicial district in which the defendant resides. Such information shall
  be  used  by  the  designated  housing  counseling  agency  or  agencies

  exclusively for the purpose of making the  homeowner  aware  of  housing
  counseling  and foreclosure prevention services and options available to
  them.
    (e) The court shall promptly send a notice to parties advising them of
  the  time  and  place  of  the settlement conference, the purpose of the
  conference and the requirements of this section. The notice shall be  in
  a  form  prescribed  by  the  office of court administration, or, at the
  discretion of the office of  court  administration,  the  administrative
  judge of the judicial district in which the action is pending, and shall
  advise  the  parties  of  the  documents  that  they should bring to the
  conference. For the plaintiff, such documents should  include,  but  are
  not  limited  to,  the  payment  history,  an itemization of the amounts
  needed to cure and pay off the loan, and the mortgage and note.  If  the
  plaintiff is not the owner of the mortgage and note, the plaintiff shall
  provide the name, address and telephone number of the legal owner of the
  mortgage and note. For the defendant, such documents should include, but
  are  not limited to, proof of current income such as the two most recent
  pay  stubs,  most  recent  tax  return  and  most  recent  property  tax
  statements.
    (f)  Both the plaintiff and defendant shall negotiate in good faith to
  reach a mutually agreeable resolution, including a loan modification, if
  possible.
    (g) The plaintiff must file a notice of discontinuance and vacatur  of
  the  lis  pendens  within  one  hundred  fifty days after any settlement
  agreement or loan modification is fully executed.
    (h) A party to  a  foreclosure  action  may  not  charge,  impose,  or
  otherwise  require  payment from the other party for any cost, including
  but not limited to attorneys' fees, for appearance at  or  participation
  in the settlement conference.

Last modified: February 14, 2012