A Current Lender Basher: Affidavit Certificates Of Conformity

Defenses or other assaults upon a foreclosure have a way of slipping in or out of fashion – they sometimes gain currency with courts and/or defendants, but later fade to be replaced by other claims.  One of the more popular attacks upon the foreclosure methodology is the supposed requirement that any out of state affidavit can be deemed a nullity without a certificate of conformity.  A new case rather neatly disposes of what in most instances should actually be a non-issue.  [Meikle v. Fremont Investment & Loan Corp., 125 A.D.3d 616, 3 N.Y.S.3d 393 (2d Dept. 2015).]

To understand this problem, concededly obscure but meaningful as a practical matter if courts will hold-up foreclosures, one needs to know what the underpinning is and how that relates to foreclosures.

In reverse order, there are two particular affidavits that would be the focus of this possible problem, both relevant only when the affidavit is sworn to outside of New York State: an affidavit of service and an affidavit in support of some order or motion, such as an order of reference or a motion for summary judgment.  This is quite commonplace.

If any defendant is served out of state, junior mortgage holders are a good example among many, a certificate of conformity may need to accompany that affidavit.  And if a client out of state (certainly common) signs an affidavit in support of some order (again quite common) that certificate of conformity might be needed.  Why?

Two statutes apply.  CPLR §2309(c) provides that an oath or affirmation taken without the state can nonetheless be treated as taken within the state if accompanied by such certificate as would entitle a deed acknowledged without the state to be recorded in New York if the deed had been acknowledged before the officer who administered the affirmation.

Then RPL §299 provides in essence that the acknowledgment or proof of conveyance of real property in New York, if made however outside the state, may be taken before a notary public.

What has happened (too often from a mortgage holder’s standpoint) is that courts are on their own just rejecting out of state affidavits of service and out of state affidavits in support of orders for want of an attached certificate of conformity.  Or, defendants are attacking the validity of such affidavits on that ground.

But well thought out case law – such as the new one cited and some prior – say that if an out of state affidavit substantially conforms to the statutory requirements of New York (which is typical) it should be considered by the court without necessity for a certificate of conformity (citing Midfirst Bank v. Agho, 121 A.D.3d 343, 351, 991 N.Y.S.2d 623.)  This is particularly so the court noted where the other party does not contest the admissibility of the affidavit.

The bottom line:  New York does require a certificate of conformity to consider out of state affidavits (which imposes yet another step, another detainment and one which can add some time to the case).  But, the statutes notwithstanding, the certificate is not required where the form already conforms substantially to the other state requirements for the document.

Mr. Bergman, author of the four-volume treatise, Bergman on New York Mortgage Foreclosures, LexisNexis Matthew Bender (rev. 2017), is a partner with Berkman, Henoch, Peterson, Peddy & Fenchel, P.C. in Garden City, New York. He is also a member of the USFN, The American College of Real Estate Lawyers, The American College of Mortgage Attorneys, an adviser to the New York Times on foreclosure issues and writes a regular servicing column for the New York Law Journal. He is AV rated by Martindale-Hubbell, his biography appears in Who’s Who In American Law and he has been for years listed in Best Lawyers In America and New York Super Lawyers.