Adam Friedman

Effective November 12, 2019, the New York Banking Law has been changed to required that:

If a mortgage that is the subject of an application for a modification of the mortgage terms is sold or transferred during the modification process, the bank or financial institution selling or transferring such mortgage shall provide the borrower with a written list of all documents relating to such application for modification that were provided to the bank or financial institution to which such mortgage was sold or transferred.

Additionally, If a borrower has been approved in writing for a first lien loan modification or other modification to avoid foreclosure, and the servicing of such borrower’s loan is transferred or sold to another mortgage servicer, the subsequent mortgage servicer shall assume all duties and obligations related to any previously approved first lien loan modification or other foreclosure prevention alternative.

It will be more important than ever to have smooth transitions of files that are in the modification process.  It’s critical that all communication is well documented and conveyed to the new financial institution.

For more information, please contact Deborah Gallo, Director of Operations at [email protected]

A few weeks ago, we notified you of the new legal requirements for the TP 584 and NYC RPT forms on 1 to 4 family residential properties.  The law has not changed and there is no official form.  However, we now seeing the application by County government.  

The State Department of Taxation and Finance posted information on its website. In addition to the information required by the statute, they indicate that the documentation which accompanies the TP584 should also include taxpayer ID numbers and percentage interest for the members of the LLC and its business entity members. “Should” means “absolutely must” as applied by the various County Clerks and NY City Register who have rejected deeds by reason that this information is not being shown by attachments. Also, include percentage interest and Taxpayer ID numbers in any document attached to the TP-548 and NYC RPT.

We also found, we were able to record with an LLC wholly owned by a publicly traded corporation by using the Name of the person who is the secretary of the Corporation, the business address and EIN of the corporation and a statement that it is a publicly traded corporation listed on the NY Stock exchange and it’s Ticker symbol is ____.

We will continue to keep you advised as this change is implemented.

For more information, please contact Deborah Gallo, Director of Operations at [email protected]

In May 2018, our firm successfully argued that the statute of limitations is not applicable to federal agents or their assignees.  Thus the loan being foreclosed, A Federal Housing Administration Loan which was assigned to the plaintiff, was immune from the statute of limitations. SRMOF II 2012-1 Trust US Bank Trust National Association v. Albert Rivera, etal,, Supreme County,  Index 703558/2017 on 5/22/2018.

Once again, a Court agreed that the statute of limitations does not apply to the Federal Housing Administration and its assignees.  https://judicialcaselaw.com/courts/nynd/cases/1_18-cv-00402-DJS/12515272531  The US District Court in the Northern District of New York was presented with similar facts as the case above.  It was established that the on the record that the mortgage bore an FHA Case Number; that HUD was assigned the mortgage in 2014; and that it had since been assigned multiple times.  The case was distinguished from those cases which found the exception did not apply.  In Gulnick, the Court found that plaintiff alleged the loan was insured by HUD, but, failed to show that HUD ever held the mortgage.  In the present case, there was no dispute that HUD did hold the mortgage.   Unless Congress specifically provides otherwise, the federal government is not subject to any statute of limitations in enforcing it rights.   Additionally, there is a strong presumption against time barring the governments attempts to enforce its rights.

Thus, it is critical to carefully review the mortgage and chain of assignments when faced with a file which has Statute of Limitations challenges in a mortgage foreclosure matter.

For more information, please contact Deborah Gallo, Director of Operations at [email protected]

Under RPAPL 1304 the Department of Financial Services shall post the 90 day Notice  on its website in the six most common non-english languages spoken by individuals with limited Enlish proficiency in the State of New York, based on United States census data.

Please note that Bengali has been added to the list of languages.https://www.dfs.ny.gov/apps_and_licensing/mortgage_companies/hetpfnotice

For more information, please contact Deborah Gallo, Director of Operations at [email protected]

“[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of proving compliance.  In a recent Appellate Division  decision, the Court defined what was never defined within the statute:  Who is a borrower?

In Bank of New York Mellon v. Forman, the defendant cross-moved pursuant to CPLR 3211(a)(7) to dismiss the complaint or, in the alternative, for summary judgment dismissing the complaint insofar as asserted against her. The defendant argued, that the plaintiff failed to comply with the condition precedent to the commencement of this foreclosure action because the plaintiff did not serve her with the 90-day notice required by RPAPL 1304.  The plaintiff did not dispute that it did not serve the 90-day notice upon the defendant. However, the plaintiff argued, that RPAPL 1304 applies only to borrowers, and that the defendant was not a borrower, as she had not signed the note.

The Court found that the mortgage instrument itself identified her as a “Borrower” and, in fact, under her signature was “Borrower” on the mortgage instrument.  If, in fact, “borrower” is ambiguous,  then it must be construed against the plaintiff who supplied the document at origination.  Additionally, the legislative intent of the RPAPL 1304 notice is “to afford greater protections to homeowners confronted with foreclosure.” On the go forward,  servicers should continue the most conservative approach to the parties receiving notices, and include all parties who may be considered a borrower on the note AND mortgage.

For more information regarding this case, please contact Deborah Gallo, Director of Operations at [email protected]