The world is falling apart, all mortgage foreclosure actions are stalled awaiting the setting and completion of COVID conferences (so often months down the road) and new foreclosures cannot even be initiated until January 1, 2021 – if the date is not further extended. Nonetheless, the New York State legislature has found the time, and the need, to add at three stages of the mortgage foreclosure process delineation by the foreclosing party of the name and telephone number of any servicer for the plaintiff. This arises by amendments of three statutes effective November 11, 2020.
While this obligation will fall to the attorneys for the foreclosing party, it is certainly something that lenders and servicers should be aware of lest it become an issue. It should also be immediately observed that this obligation applies solely to foreclosures involving a one to four family residential property.
The three stages at which this information must be presented are the notice of pendency, the order of reference, and the judgment of foreclosure and sale. In turn, the statutory amendments were to CPLR §6511 (notice of pendency); RPAPL §1321 (relating to order of reference); RPAPL §1351 (judgment of foreclosure and sale stage).
For the notice of pendency, the directive now is that the document must include the name and telephone number of the mortgage servicer (in each instance on involving a mortgage foreclosure of a one to four family residential property). Regarding the order of reference, it is mandated that such order also recite the name and telephone number of the mortgage servicer for the plaintiff. Likewise, at the stage of judgment of foreclosure and sale, that judgment must include the name and telephone number of the mortgage servicer for the plaintiff.
These changes, which presume that information regarding a mortgage servicer has somehow remained undisclosed and unknown to residential borrowers, would not appear to create majors issues. Attorneys for foreclosing parties will need to be aware of the obligations so that compliance will issue.
Should there be a failure to comply, there is a possibility that the respective documents will be rejected by the court. If they are nevertheless accepted, the only danger to the foreclosing mortgage holder appears to be a claim at some point from a borrower that the particular document was missing the recitation. Absent a showing of prejudice as a result of such neglect, though, case law suggests that the courts would view such an omission as a mere irregularity, subject to correction, and not a basis to void the document or the foreclosure action. Nonetheless, if a borrower somehow argued convincingly that he was prejudiced by non-disclosure of this information in the particular document, there is a possibility of peril to the mortgagee.
Mr. Bergman, author of the four-volume treatise, Bergman on New York Mortgage Foreclosures, LexisNexis Matthew Bender (rev. 2019), 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.