§ 1309 — Expedited application for judgment of foreclosure and sale for vacant and abandoned property

§ 1309. Expedited application for judgment of foreclosure and sale for\nvacant and abandoned property. 1. The plaintiff in any foreclosure\nproceeding may make an application by notice of motion or order to show\ncause for a judgment of foreclosure and sale on the grounds that the\nsubject property is vacant and abandoned. The motion or order to show\ncause shall include the last known address of the borrower and the\nproperty address. Notwithstanding subdivision (m) of rule thirty-four\nhundred eight of the civil practice law and rules no such application\nmay be made until the defendant's time to answer the complaint in the\nforeclosure proceeding shall have expired. Such application shall be\nserved on defendant, regardless of whether a defendant has filed an\nanswer or appeared in the case. Such application shall: (a) state in\nbold letters, on the first page of the notice of motion or order to show\ncause: (i) "The plaintiff in this lawsuit has applied for an expedited\njudgment of foreclosure and sale of your property on the ground that it\nis vacant and abandoned"; (ii) "Your property may be foreclosed upon and\nsold without any further proceedings if you do not respond to this\nmotion by or on the return date, which is ___"; (iii) "You have the\nright to stay in your property until a court orders you to leave"; and\n(iv) "You may respond to this motion by either submitting a written\ndocument or by appearing in court on the return date."; (b) be supported\nby affidavit and other proof, including but not limited to: (i) proof of\nownership of the mortgage and the note, (ii) photographs evidencing that\nthe subject property is vacant and abandoned as provided for under\nsubdivision two of this section, and (iii) if available, utility company\nrecords or other documentation evidencing the vacant and abandoned\nstatus of the premises; (c) set forth, supported by documentary\nevidence, the sums alleged to be due and owing upon the subject mortgage\nand note, including the current principal balance and a detailed and\nitemized account of each fee, each cost, and a calculation of interest\naccrued; and (d) request that the court confirm the sums due and owing\nupon the subject mortgage and note without appointment of a referee. The\ncourt shall promptly send a notice to the defendant of the plaintiff's\nnotice of motion or order to show cause for a judgement of foreclosure\nand sale on the grounds that the subject property is vacant and\nabandoned. The notice shall advise the defendant that the lender is\nasking the court to expedite a judgement of foreclosure and sale of his\nor her property on the ground that it is vacant and abandoned and about\nthe time and place of the court date. The notice shall be in a form\nprescribed by the courts, or, at the discretion of the courts.\n 2. (a) As used in this section, "vacant and abandoned residential\nproperty" means residential real property, as defined in section\nthirteen hundred five of this article, with respect to which the\nplaintiff has proven, by preponderance of the evidence, that it has\nconducted at least three consecutive inspections of such property, with\neach inspection conducted twenty-five to thirty-five days apart and at\ndifferent times of the day, and at each inspection (i) no occupant was\npresent and there was no evidence of occupancy on the property to\nindicate that any persons are residing there; and (ii) the residential\nreal property was not being maintained in a manner consistent with the\nstandards set forth in New York property maintenance code chapter 3\nsections 301, 302 (excluding 302.2, 302.6, 302.8), 304.1, 304.3, 304.7,\n304.10, 304.12, 304.13, 304.15, 304.16, 307.1 and 308.1.\n (b) Residential real property will also be deemed vacant and abandoned\nif:\n (i) A court or other appropriate state or local governmental entity\nhas formally determined, following due notice to the borrower at the\nproperty address and any other known addresses, that such residential\nreal property is vacant and abandoned; or\n (ii) Each borrower and owner has separately issued a sworn written\nstatement, expressing his or her intent to vacate and abandon the\nproperty and an inspection of the property shows no evidence of\noccupancy to indicate that any persons are residing there.\n (c) Evidence of lack of occupancy shall include but not be limited to\nthe following conditions: (i) overgrown or dead vegetation; (ii)\naccumulation of newspapers, circulars, flyer or mail; (iii) past due\nutility notices, disconnected utilities, or utilities not in use; (iv)\naccumulation of trash, refuse or other debris; (v) absence of window\ncoverings such as curtains, blinds, or shutters; (vi) one or more\nboarded, missing or broken windows; (vii) the property is open to casual\nentry or trespass; or (viii) the property has a building or structure\nthat is or appears structurally unsound or has any other condition that\npresents a potential hazard or danger to the safety of persons.\n (d) Residential real property will not be deemed vacant and abandoned\nif, on the property:\n (i) There is an unoccupied building that is undergoing construction,\nrenovation, or rehabilitation that is proceeding diligently to\ncompletion;\n (ii) There is a building occupied on a seasonal basis, but otherwise\nsecure;\n (iii) There is a building that is secure, but is the subject of a\nprobate action, action to quiet title, or other ownership dispute of\nwhich the servicer has actual notice;\n (iv) There is a building damaged by a natural disaster and one or more\nowner intends to repair and reoccupy the property; or\n (v) There is a building occupied by the mortgagor, a relative of the\nmortgagor or a tenant lawfully in possession.\n 3. In connection with an application for a judgment of foreclosure and\nsale on the ground that the subject property is vacant and abandoned,\nthe court may require the plaintiff or an agent to appear to provide\ntestimony in support of the application.\n 4. The court shall make a written finding as soon as practicable as to\nwhether the plaintiff has proved that the property to be foreclosed upon\npursuant to this section is vacant and abandoned pursuant to subdivision\ntwo of this section and, if the court determines that the property is\nvacant and abandoned, it shall set forth: (a) the evidence relied upon\nby the court in finding that the property is vacant and abandoned; (b)\nthe evidence showing that the plaintiff is the owner and holder of the\nsubject mortgage and note, or has been delegated the authority to\ninstitute a mortgage foreclosure action by the owner of same; and (c)\nthe sums due and owing upon the subject mortgage and note after a review\nof the detailed and itemized account of each fee, each cost, and a\ncalculation of interest accrued.\n 5. With respect to foreclosure actions brought pursuant to this\nsection:\n (a) A judgment of foreclosure and sale shall not be entered pursuant\nto this section if the mortgagor or any other defendant has filed an\nanswer, appearance, other written objection that is not withdrawn, or\nhas otherwise demonstrated an intention to contest the foreclosure\naction.\n (b) A denial of a judgment of foreclosure and sale pursuant to this\nsection where the court does not find that the mortgaged property is\nvacant and abandoned shall not be deemed to be on the merits for\npurposes of any other proceeding with respect to such real property.\n 6. It shall be unlawful for a lender, assignee, mortgage loan\nservicer, or a third party agent or other person acting on behalf of a\nlender, assignee or mortgage loan servicer to enter residential real\nproperty that is not vacant and abandoned for the purpose of forcing,\nintimidating, harassing or coercing a lawful occupant of such\nresidential property to vacate that property in order to render the\nproperty vacant and abandoned, or to otherwise force, intimidate,\nharass, or coerce a lawful occupant of residential real property to\nvacate that property so that it may be deemed vacant and abandoned,\nprovided however, a lender, assignee, mortgage loan servicer, or a third\nparty agent or other person acting on behalf of a lender, assignee or\nmortgage loan servicer who peacefully enters a vacant and abandoned\nproperty in order to render the property vacant and abandoned shall be\nimmune from liability when such lender, assignee, mortgage loan\nservicer, third party agent or other person acting on behalf of a\nlender, assignee or mortgage loan servicer is making reasonable efforts\nto comply with this section.\n 7. The chief administrative judge of the courts shall adopt such rules\nas he or she deems necessary to expeditiously implement the provisions\nof this section.\n