Amd §§203, 205 & 213, R3217, add §205-a, CPLR; amd §17-105, Gen Ob L; amd §1301, RPAP L
Relates to the rights of parties involved in foreclosure actions; provides additional details regarding the commencement and termination of certain actions related to real property.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7737B
SPONSOR: Weinstein TITLE OF BILL:
An act to amend the real property actions and proceedings law, the
general obligations law and the civil practice law and rules, in
relation to the rights of parties involved in actions commenced upon
real property related instruments
PURPOSE AND INTENT OF BILL:
The legislature finds that there is an ongoing problem with abuses of
the judicial foreclosure process and lenders' attempts to manipulate
statutes of limitations; that the problem has been exacerbated by recent
court decisions which, contrary to the intent of the legislature, have
given mortgage lenders and loan servicers opportunities to avoid strict
compliance with remedial statutes and manipulate statutes of limitation
to their advantage; and that the purpose of the present legislation is
to clarify the meaning of existing statutes, and to rectify these erro-
neous judicial interpretations thereof.
Accordingly, this bill amends certain statutes and rules to clarify the
existing law and overturn certain court decisions to ensure the laws of
this state apply equally to all litigants, including those currently
involved in mortgage foreclosure actions, in order to ensure that
parties purporting to sue on mortgage debt are bound by the same stat-
utes of limitations that bind all other litigants. The aim of the bill
is to thwart and eliminate abusive and unlawful litigation tactics that
have been adopted and pursued in mortgage foreclosure actions to manipu-
late the law and judiciary to yield to expediency and the convenience of
mortgage banking and servicing institutions at the expense of the final-
ity and repose that statutes of limitations are meant to ensure.
The gravity of the aforementioned problem, and the legislature's deter-
mination to remedy same, is illustrated by the determination of the
legislature in passing this bill to apply to all actions governed by
CPLR 213 (4) in which a final judgment of foreclosure and sale has not
yet been enforced.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 of the bill contains the title of the bill, the "foreclosure
abuse prevention act".
Section 2 amends the RPAPL to address the deleterious and onerous effect
of a recent decision of the Appellate Division in Citi Mortgage, Inc. v.
Ramirez, 192 AD3d 70 (2020), which effectively gives mortgagees a second
bite of the mortgage apple, permitting actions to be instituted on a
note after a foreclosure action based on the same debt has already been
adjudicated to be barred by the statute of limitations, making a mockery
of the well well-settled statutory and case law concerning election of
remedies in connection with proceedings to enforce mortgage debts.
Section 3 of the bill makes conforming changings to the General Obli-
gations Law to create clear limits on when a cause of action to fore-
close a mortgage accrues.
Sections 4, 5 and 7 make conforming changes to the statute of limita-
tions provisions in the CPLR to clarify the relevant accrual periods for
actions upon a mortgage and note.
Section 6 of the bill creates a new "savings" statute expressly for
mortgage foreclosure cases in order to address judicial decisions that
have been contrary to the spirit of this savings provision which have
been overly indulgent of foreclosure plaintiffs whose cases have been
dismissed for various forms of neglect, who are not entitled to the six
months grace period meant for diligent plaintiffs whose cases were
dismissed for reasons that do not reflect their own fault. This will
ensure that mortgagees do not have an unfettered ability to bring numer-
ous successive actions on the same mortgage, without any limitation in
law.
Section 8 of the bill amends CPLR Sec. 3217 as concerns discontinuance
of mortgage foreclosure actions, and is a response to the Court of
Appeals recent holding Freedom Mtge. Corp. v Engel,37 NY3d 1 (2021).
This will restore longstanding law that made it clear that a lenders'
discontinuance of a foreclosure action that accelerated a mortgage loan
does not serve to reset the statute of limitations.
Section 9 contains a severability clause.
Section 10 contains the effective date and makes it clear that this
legislation will apply immediately, and will apply to all such actions
commenced where a final judgment of foreclosure and sale has not been
enforced.
JUSTIFICATION:
As a direct result of the aforementioned judicial decisions, thousands
of New York homeowners who secured closure of their cases by operation
of longstanding statute of limitations principles are at risk of an
onslaught of successive foreclosure actions that would otherwise be
barred by the statute of limitations under longstanding statutory and
case law. This will cause the loss of countless homes and will burden
the Courts, which had significant budget cuts and forced retirement
of-dozens of senior judges, with cases that should be barred by the
statute of limitations and with excessive motion practice now that the
foreclosure moratoriums have ended. This bill levels the fields for all
homeowners, and ensures the statute of limitation applies to all parties
equally without exemption.
PRIOR LEGISLATIVE HISTORY:
New Bill, 2021.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.
EFFECTIVE DATE:
Immediately and will apply to all such actions commenced where a final
judgment of foreclosure and sale has not been enforced.
STATE OF NEW YORK
________________________________________________________________________
7737--B
Cal. No. 274
2021-2022 Regular Sessions
IN ASSEMBLY
May 20, 2021
___________
Introduced by M. of A. WEINSTEIN, ZINERMAN, SOLAGES, SEAWRIGHT, COLTON,
SIMON, ZEBROWSKI, PRETLOW, BURDICK, BRONSON, DAVILA, ENGLEBRIGHT,
DINOWITZ, GLICK, SAYEGH -- read once and referred to the Committee on
Judiciary -- reported and referred to the Committee on Rules -- Rules
Committee discharged, bill amended, ordered reprinted as amended and
recommitted to the Committee on Rules -- ordered to a third reading,
amended and ordered reprinted, retaining its place on the order of
third reading
AN ACT to amend the real property actions and proceedings law, the
general obligations law and the civil practice law and rules, in
relation to the rights of parties involved in actions commenced upon
real property related instruments
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "foreclosure abuse prevention act".
3 § 2. Subdivision 3 of section 1301 of the real property actions and
4 proceedings law, as added by chapter 312 of the laws of 1962, is amended
5 and a new subdivision 4 is added to read as follows:
6 3. While the action is pending or after final judgment for the plain-
7 tiff therein, no other action shall be commenced or maintained to
8 recover any part of the mortgage debt, including an action to foreclose
9 the mortgage, without leave of the court in which the former action was
10 brought. The procurement of such leave shall be a condition precedent to
11 the commencement of such other action and the failure to procure such
12 leave shall be a defense to such other action. For purposes of this
13 subdivision, in the event such other action is commenced without leave
14 of the court, the former action shall be deemed discontinued upon the
15 commencement of the other action, unless prior to the entry of a final
16 judgment in such other action, a defendant raises the failure to comply
17 with this condition precedent therein, or seeks dismissal thereof based
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11254-08-2
A. 7737--B 2
1 upon a ground set forth in paragraph four of subdivision (a) of rule
2 thirty-two hundred eleven of the civil practice law and rules. This
3 subdivision shall not be treated as a stay or statutory prohibition for
4 purposes of calculating the time within which an action shall be
5 commenced and the claim interposed pursuant to sections two hundred four
6 and two hundred thirteen of the civil practice law and rules.
7 4. If an action to foreclose a mortgage or recover any part of the
8 mortgage debt is adjudicated to be barred by the applicable statute of
9 limitations, any other action seeking to foreclose the mortgage or
10 recover any part of the same mortgage debt shall also be barred by the
11 statute of limitations.
12 § 3. Subdivisions 4 and 5 of section 17-105 of the general obligations
13 law are amended to read as follows:
14 4. [Except as provided in subdivision five, no] An acknowledgment,
15 waiver [or promise has any effect to], promise or agreement, express or
16 implied in fact or in law, shall not, in form or effect, postpone,
17 cancel, reset, toll, revive or otherwise extend the time limited for
18 commencement of an action to foreclose [or] a mortgage for any greater
19 time or in any other manner than that provided in this section, [nor]
20 unless it is made as provided in this section.
21 5. This section does not change the requirements[,] or the effect with
22 respect to the accrual of a cause of action, nor the time limited for
23 commencement of an action[, of] based upon either:
24 a. a payment or part payment of the principal or interest secured by
25 the mortgage, or
26 b. a stipulation made in an action or proceeding.
27 § 4. Section 203 of the civil practice law and rules is amended by
28 adding a new subdivision (h) to read as follows:
29 (h) Claim and action upon certain instruments. Once a cause of action
30 upon an instrument described in subdivision four of section two hundred
31 thirteen of this article has accrued, no party may, in form or effect,
32 unilaterally waive, postpone, cancel, toll, revive, or reset the accrual
33 thereof, or otherwise purport to effect a unilateral extension of the
34 limitations period prescribed by law to commence an action and to inter-
35 pose the claim, unless expressly prescribed by statute.
36 § 5. Subdivision (c) of section 205 of the civil practice law and
37 rules, as amended by chapter 216 of the laws of 1992, is amended to read
38 as follows:
39 (c) Application. This section also applies to a proceeding brought
40 under the workers' compensation law but shall not apply to any proceed-
41 ing governed by section two hundred five-a of this article.
42 § 6. The civil practice law and rules is amended by adding a new
43 section 205-a to read as follows:
44 § 205-a. Termination of certain actions related to real property. (a)
45 If an action upon an instrument described under subdivision four of
46 section two hundred thirteen of this article is timely commenced and is
47 terminated in any manner other than a voluntary discontinuance, a fail-
48 ure to obtain personal jurisdiction over the defendant, a dismissal of
49 the complaint for any form of neglect, including, but not limited to
50 those specified in subdivision three of section thirty-one hundred twen-
51 ty-six, section thirty-two hundred fifteen, rule thirty-two hundred
52 sixteen and rule thirty-four hundred four of this chapter, for violation
53 of any court rules or individual part rules, for failure to comply with
54 any court scheduling orders, or by default due to nonappearance for
55 conference or at a calendar call, or by failure to timely submit any
56 order or judgment, or upon a final judgment upon the merits, the
A. 7737--B 3
1 original plaintiff, or, if the original plaintiff dies and the cause of
2 action survives, his or her executor or administrator, may commence a
3 new action upon the same transaction or occurrence or series of trans-
4 actions or occurrences within six months following the termination,
5 provided that the new action would have been timely commenced within the
6 applicable limitations period prescribed by law at the time of the
7 commencement of the prior action and that service upon the original
8 defendant is completed within such six-month period. For purposes of
9 this subdivision:
10 1. a successor in interest or an assignee of the original plaintiff
11 shall not be permitted to commence the new action, unless pleading and
12 proving that such assignee is acting on behalf of the original plain-
13 tiff; and
14 2. in no event shall the original plaintiff receive more than one
15 six-month extension.
16 (b) Where the defendant has served an answer and the action upon an
17 instrument described under subdivision four of section two hundred thir-
18 teen of this article is terminated in any manner, and a new action upon
19 the same transaction or occurrence or series of transactions or occur-
20 rences is commenced by the original plaintiff, or a successor in inter-
21 est or assignee of the original plaintiff, the assertion of any cause of
22 action or defense by the defendant in the new action shall be timely if
23 such cause of action or defense was timely asserted in the prior action.
24 § 7. Subdivision 4 of section 213 of the civil practice law and rules
25 is amended by adding two new paragraphs (a) and (b) to read as follows:
26 (a) In any action on an instrument described under this subdivision,
27 if the statute of limitations is raised as a defense, and if that
28 defense is based on a claim that the instrument at issue was accelerated
29 prior to, or by way of commencement of a prior action, a plaintiff shall
30 be estopped from asserting that the instrument was not validly acceler-
31 ated, unless the prior action was dismissed based on an expressed judi-
32 cial determination, made upon a timely interposed defense, that the
33 instrument was not validly accelerated.
34 (b) In any action seeking cancellation and discharge of record of an
35 instrument described under subdivision four of section fifteen hundred
36 one of the real property actions and proceedings law, a defendant shall
37 be estopped from asserting that the period allowed by the applicable
38 statute of limitation for the commencement of an action upon the instru-
39 ment has not expired because the instrument was not validly accelerated
40 prior to, or by way of commencement of a prior action, unless the prior
41 action was dismissed based on an expressed judicial determination, made
42 upon a timely interposed defense, that the instrument was not validly
43 accelerated.
44 § 8. Rule 3217 of the civil practice law and rules is amended by
45 adding a new subdivision (e) to read as follows:
46 (e) Effect of discontinuance upon certain instruments. In any action
47 on an instrument described under subdivision four of section two hundred
48 thirteen of this chapter, the voluntary discontinuance of such action,
49 whether on motion, order, stipulation or by notice, shall not, in form
50 or effect, waive, postpone, cancel, toll, extend, revive or reset the
51 limitations period to commence an action and to interpose a claim,
52 unless expressly prescribed by statute.
53 § 9. Severability clause. If any clause, sentence, paragraph, section
54 or part of this act shall be adjudged by any court of competent juris-
55 diction to be invalid, such judgment shall not affect, impair or invali-
56 date the remainder thereof, but shall be confined in its operation to
A. 7737--B 4
1 the clause, sentence, paragraph, section or part thereof directly
2 involved in the controversy in which such judgment shall have been
3 rendered.
4 § 10. This act shall take effect immediately and shall apply to all
5 actions commenced on an instrument described under subdivision four of
6 section two hundred thirteen of the civil practice law and rules in
7 which a final judgment of foreclosure and sale has not been enforced.
