Reasons a residential property would not be deemed vacant…
December 28, 2016Benefits of the Expedited Foreclosure Procedure
December 30, 2016
1. Does the Property Inspection Report Indicate that the Property is Vacant/Occupied?
a. If occupied proceed to normal foreclosure procedure.
b. If non-occupied proceed to Step 2.
2. Is the Borrower(s) AND Record Owner(s), if different, cooperative and willing to sign sworn written statements, expressing his/her/its intent to vacate and abandon the property?
a. If No, but Servicer/Lender would still like to employ the Vacant/Abandoned Procedure Proceed to Step 3.
b. If Yes, have counsel prepare Two Affidavits:
i. An Affidavit for Borrower(s)/Record Owners(s), if different, to execute confirming his/her/its intent to vacate and abandon the property.
ii. An Affidavit for property preservation team to complete which, following and inspection, shows no evidence of occupancy to indicate that any persons are residing there. [See RPAPL § 1309(2)(c) above].
3. Can Property Preservation Demonstrate No Evidence of Occupancy After THREE Inspections (Each 25-35 Days Apart and at Different Times of Day)?
a. If No, proceed to normal foreclosure procedure.
b. If Yes, have counsel prepare an Affidavit to be used for each inspection averring:
i. First Inspection Date
a) no occupant was present
b) there was no evidence of occupancy on the property to indicate that any persons are residing there. [See RPAPL § 1309(2)(c) above]
c) the residential real property was not being maintained in a manner consistent with the standards set forth in New York property maintenance code chapter 3 sections 301, 302 (excluding 302.2, 302.6, 302.8), 304.1, 304.3, 304.7, 304.10, 304.12, 304.13, 304.15, 304.16, 307.1 and 308.1.
[25-35 days from First Inspection Date]
ii. Second Inspection Date
a) no occupant was present
b) there was no evidence of occupancy on the property to indicate that any persons are residing there. [See RPAPL § 1309(2)(c) above]
c) the residential real property was not being maintained in a manner consistent with the standards set forth in New York property maintenance code chapter 3 sections 301, 302 (excluding 302.2, 302.6, 302.8), 304.1, 304.3, 304.7, 304.10, 304.12, 304.13, 304.15, 304.16, 307.1 and 308.1.
[25-35 days from Second Inspection Date]
iii. Third Inspection Date
a) no occupant was present
b) there was no evidence of occupancy on the property to indicate that any persons are residing there. [See RPAPL § 1309(2)(c) above]
c) the residential real property was not being maintained in a manner consistent with the standards set forth in New York property maintenance code chapter 3 sections 301, 302 (excluding 302.2, 302.6, 302.8), 304.1, 304.3, 304.7, 304.10, 304.12, 304.13, 304.15, 304.16, 307.1 and 308.1.
Written by Michael Derosa, Esq.
DISCLAIMER
This publication may constitute attorney advertising under the laws and rules of professional conduct of one or more states. The information provided in this publication is for general informational purposes only and does not constitute legal advice. The contents are not intended to be a substitute for professional legal advice, consultation, or representation. No attorney-client relationship is formed by reading or relying on this publication. Prior results do not guarantee a similar outcome. Readers should consult a qualified attorney for advice regarding their individual circumstances or any specific legal questions they may have.
If you have questions about this publication, please contact Adam Friedman, Ralph Vartolo or Michael DeRosa,
Friedman Vartolo LLP, 1325 Franklin Avenue, Suite 160, Garden City, NY 11530, Phone: (212) 471-5100 | Fax: (212) 471-5150.
