§ 1304 — Required prior notices

New York § 1304

• Jurisdiction: New York
• Law RPA: Real Property Actions & Proceedings
• Art. 13: Action to Foreclose a Mortgage

Text

§ 1304. Required prior notices. 1. Notwithstanding any other provision\nof law, with regard to a home loan, at least ninety days before a\nlender, an assignee or a mortgage loan servicer commences legal action\nagainst the borrower, or borrowers at the property address and any other\naddress of record, including mortgage foreclosure, such lender, assignee\nor mortgage loan servicer shall give notice to the borrower in at least\nfourteen-point type which shall include the following:\n "YOU MAY BE AT RISK OF FORECLOSURE. PLEASE READ THE FOLLOWING NOTICE\n CAREFULLY"\n "As of ___, your home loan is ___ days and ___ dollars in default.\nUnder New York State Law, we are required to send you this notice to\ninform you that you are at risk of losing your home.\n Attached to this notice is a list of government approved housing\ncounseling agencies in your area which provide free counseling. You can\nalso call the NYS Office of the Attorney General's Homeowner Protection\nProgram (HOPP) toll-free consumer hotline to be connected to free\nhousing counseling services in your area at 1-855-HOME-456\n(1-855-466-3456), or visit their website at http://www.aghomehelp.com/.\nA statewide listing by county is also available at\nhttp://www.dfs.ny.gov/consumer/mortg nys np counseling agencies.htm.\nQualified free help is available; watch out for companies or people who\ncharge a fee for these services.\n Housing counselors from New York-based agencies listed on the website\nabove are trained to help homeowners who are having problems making\ntheir mortgage payments and can help you find the best option for your\nsituation. If you wish, you may also contact us directly at __________\nand ask to discuss possible options.\n While we cannot assure that a mutually agreeable resolution is\npossible, we encourage you to take immediate steps to try to achieve a\nresolution. The longer you wait, the fewer options you may have.\n If you have not taken any actions to resolve this matter within 90\ndays from the date this notice was mailed, we may commence legal action\nagainst you (or sooner if you cease to live in the dwelling as your\nprimary residence.)\n If you need further information, please call the New York State\nDepartment of Financial Services' toll-free helpline at (show number) or\nvisit the Department's website at (show web address).\n IMPORTANT: You have the right to remain in your home until you receive\na court order telling you to leave the property. If a foreclosure action\nis filed against you in court, you still have the right to remain in the\nhome until a court orders you to leave. You legally remain the owner of\nand are responsible for the property until the property is sold by you\nor by order of the court at the conclusion of any foreclosure\nproceedings. This notice is not an eviction notice, and a foreclosure\naction has not yet been commenced against you.\n 1-a. Notwithstanding any other provision of law, with regard to a\nreverse mortgage home loan, at least ninety days before a lender, an\nassignee or a mortgage loan servicer commences legal action against the\nborrower or borrowers at the property address and any other addresses of\nrecord, including reverse mortgage foreclosure, such lender, assignee or\nmortgage loan servicer shall give notice to the borrower in at least\nfourteen-point type except for the heading which shall be in at least\nsixteen-point type which shall include the following:\n "YOU COULD LOSE YOUR HOME TO FORECLOSURE.\n PLEASE READ THE FOLLOWING NOTICE CAREFULLY.\nDate\nBorrower's address\nLoan Number:\nProperty Address:\nDear Borrower(s):\nAs of ___________, we as your lender or servicer claim that your reverse\nmortgage loan is ___ days in default. Under New York State Law, we are\nrequired to send you this notice to inform you that you may be at risk\nof losing your home.\nWe, the lender or servicer of your loan, are claiming that your reverse\nmortgage loan is in default because you have not complied with the\nfollowing conditions of your loan:\n_____ You are not occupying your home as your principal residence\n_____ You did not submit the required annual certificate of occupancy\n_____ The named borrower on the reverse mortgage has died\n_____ You did not pay property taxes\n {Servicer name} paid your property taxes for the following\n time periods:___________________________\n ______________________ {quarter/year}\n_____ You did not maintain homeowner's insurance\n {Servicer name} purchased homeowner's insurance for you on the\n following date(s) and for the following cost(s):\n ____________________________________\n_____ You did not pay water/sewer charges\n {Servicer name} paid water/sewer charges for you on the\n following date(s) and for the following cost(s):\n ________________________\n_____ You did not make required repairs to your home\nIf the claim is based on your failure to pay property or water and sewer\ncharges or maintain homeowner's insurance, you can cure this default by\nmaking the payment of $____________ for the advancements we made towards\nthese payments on your behalf.\nYou have the right to dispute the claims listed above by contacting us,\nby calling ___________ or sending a letter to __________________. This\nmay include proof of payments made for property taxes or water and sewer\ncharges or a current declaration page from your insurance company, or\nany other proof to dispute the servicer's claim.\nIf you are in default for failure to pay property charges (property\ntaxes, homeowner's insurance and/or water/sewer charges) you may qualify\nfor a grant, loan, or re-payment plan to cure the default balance owed.\nIf you are in default due to the death of your spouse, you may be\nconsidered an eligible "Non-Borrowing Spouse" under a HUD program which\nallows you to remain in your home for the rest of your life.\nIf you are over the age of 80 and have a long term illness, you may also\nqualify for the "At-Risk Extension," which allows you to remain in your\nhome for one additional year and requires an annual re-certification.\nAttached to this notice is a list of government-approved housing\ncounseling agencies and legal services in your area which provide free\ncounseling. You can also call the NYS Office of the Attorney General's\nHomeowner Protection Program (HOPP) toll-free consumer hotline to be\nconnected to free housing counseling services in your area at\n1-855-HOME-456 (1-855-466-3456), or visit their website at\nhttp://www.aghomehelp.com. A statewide listing by county is also\navailable at\nhttp://www.dfs.ny.gov/consumer/mortg nys np counseling agencies.htm.\nYou may also call your local Department of Aging for a referral or call\n311 if you live in New York City.\nQualified free help is available; watch out for companies or people who\ncharge a fee for these services.\nYou may also contact us directly at __________ and ask to discuss all\npossible options to allow you to cure your default and prevent the\nforeclosure of your home. While we cannot ensure that a resolution is\npossible, we encourage you to take immediate steps to try to achieve a\nresolution. The longer you wait, the fewer options you may have.\nIf you have not taken any actions to resolve this matter within 90 days\nfrom the date this notice was mailed, we may commence legal action\nagainst you (or sooner if you cease to live in the dwelling as your\nprimary residence).\nIf you need further information, please call the New York State\nDepartment of Financial Services' toll-free helpline at 877-226-5697 or\nvisit the Department's website at http://www.dfs.ny.gov.\nIMPORTANT: You have the right to remain in your home until you receive a\ncourt order telling you to leave the property. If a foreclosure action\nis filed against you in court, you still have the right to remain in the\nhome until a court orders you to leave. You legally remain the owner of\nand are responsible for the property until the property is sold by you\nor by order of the court at the conclusion of any foreclosure\nproceedings. This notice is not an eviction notice, and a foreclosure\naction has not yet been commenced against you."\n A lender, assignee or mortgage loan servicer of a reverse mortgage\nhome loan which provides notice to the borrower as required by this\nsubdivision is not required to provide notice to such borrower with\nregard to such loan pursuant to subdivision one of this section.\n 2. The notices required by this section shall be sent by such lender,\nassignee (including purchasing investor) or mortgage loan servicer to\nthe borrower, by registered or certified mail and also by first-class\nmail to the last known address of the borrower, and to the residence\nthat is the subject of the mortgage. The notices required by this\nsection shall be sent by the lender, assignee or mortgage loan servicer\nin a separate envelope from any other mailing or notice. Notice is\nconsidered given as of the date it is mailed. The notices required by\nthis section shall contain a current list of at least five housing\ncounseling agencies serving the county where the property is located\nfrom the most recent listing available from department of financial\nservices. The list shall include the counseling agencies' last known\naddresses and telephone numbers. The department of financial services\nshall make available on its websites a listing, by county, of such\nagencies. The lender, assignee or mortgage loan servicer shall use such\nlists to meet the requirements of this section.\n 3. The ninety day period specified in the notices contained in\nsubdivisions one and one-a of this section shall not apply, or shall\ncease to apply, if the borrower has filed for bankruptcy protection\nunder federal law, or if the borrower no longer occupies the residence\nas the borrower's principal dwelling. Nothing herein shall relieve the\nlender, assignee or mortgage loan servicer of the obligation to send\nsuch notices, which notices shall be a condition precedent to commencing\na foreclosure proceeding.\n 4. The notices required by this section and the ninety day period\nrequired by subdivisions one and one-a of this section need only be\nprovided once in a twelve month period to the same borrower in\nconnection with the same loan and same delinquency. Should a borrower\ncure a delinquency but re-default in the same twelve month period, the\nlender shall provide a new notice pursuant to this section.\n 5. For any borrower known to have limited English proficiency, the\nnotices required by subdivisions one and one-a of this section shall be\nin the borrower's native language (or a language in which the borrower\nis proficient), provided that the language is one of the six most common\nnon-English languages spoken by individuals with limited English\nproficiency in the state of New York, based on United States census\ndata. The department of financial services shall post the notices\nrequired by subdivisions one and one-a of this section on its website in\nthe six most common non-English languages spoken by individuals with\nlimited English proficiency in the state of New York, based on the\nUnited States census data.\n 6. (a) (1) "Home loan" means a loan, including an open-end credit\nplan, in which:\n (i) The borrower is a natural person;\n (ii) The debt is incurred by the borrower primarily for personal,\nfamily, or household purposes;\n (iii) The loan is secured by a mortgage or deed of trust on real\nestate improved by a one to four family dwelling, or a condominium unit,\nin either case, used or occupied, or intended to be used or occupied\nwholly or partly, as the home or residence of one or more persons and\nwhich is or will be occupied by the borrower as the borrower's principal\ndwelling; and\n (iv) The property is located in this state.\n (2) A home loan shall include a loan secured by a reverse mortgage\nthat meets the requirements of clauses (i) through (iv) of subparagraph\none of this paragraph.\n (b) "Lender" means a mortgage banker as defined in paragraph (f) of\nsubdivision one of section five hundred ninety of the banking law or an\nexempt organization as defined in paragraph (e) of subdivision one of\nsection five hundred ninety of the banking law.\n 7. The department of financial services shall prescribe the telephone\nnumber and web address to be included in the notice.\n