1. Servicer/Lender issues Pre-Commencement Notices.
2. Plaintiff’s Counsel receives a referral and proceeds to review collateral/ validity of Pre-Commencement Notices/Filings (RPAPL § 1304 [90-Day Notice] / RPAPL § 1306 [Proof of Filing] and Notice of Demand/Notice of Intent to Accelerate if required by terms of Security Instrument).
3. Servicer/Lender determines whether property is Vacant/Abandoned and advises Plaintiff’s Counsel to Prepare applicable affidavits to demonstrate, by a preponderance of the evidence, that there is no evidence of occupancy on the property to indicate that any persons are residing there.
a. Review Cooperation Method/Three Inspection Method provided for in [See Asset Manager Cheat Sheet on Whether to Proceed with Expedited Procedure]
4. Plaintiff’s Counsel prepares a Summons, Complaint, Notice of Pendency and Certificate of Merit Pursuant to 3012-B (collectively “First Legal Pleadings”) for Client Verification (hereinafter “Statement of Review”).
5. Plaintiff’s Counsel receives executed Statement of Review and files First Legal Pleadings with appropriate County Clerk.
6. Plaintiff’s Counsel receives assigned Index Number and Stamped Filed Copies of First Legal Pleadings.
7. Plaintiff’s Counsel employs licensed service processor(s) to serve all named parties in the First Legal Pleadings.
8. Determine Whether to Request a Foreclosure Settlement Conference [County Specific Decision]
**Commentary: Pursuant to CPLR § 3408 (amended effective December 20, 2016) In any residential foreclosure action involving a home loan as such term is defined in section thirteen hundred four of the real property actions and proceedings law, in which the defendant is a resident of the property subject to foreclosure…the court shall hold a mandatory conference within sixty days after the date when proof of service upon such defendant is filed with the county Clerk. Should the property be vacant/abandoned and proof of same can be sustained, a Settlement Conference pursuant to CPLR 3408 should NOT be required. Notwithstanding the clear an unambiguous statutory language, certain counties have routinely denied any application to proceed with a Foreclosure action made prior to a court determination that CPLR 3408 has been complied with (essentially having the borrower default at the first Court Scheduled Conference). File Motion Seeking.
9. File Judgment of Foreclosure and Sale on the Grounds that the Subject Property is Vacant and Abandoned.
A. Contents the Motion Must Include
a. State in bold letters, on the first page of the notice of motion or order to show cause:
i. “The plaintiff in this lawsuit has applied for an expedited judgment of foreclosure and sale of your property on the ground that it is vacant and abandoned”;
ii. (ii) “Your property may be foreclosed upon and sold without any further proceedings if you do not respond to this motion by or on the return date, which is _____”;
iii. (iii) “You have the right to stay in your property until a court orders you to leave”; and
iv. (iv) “You may respond to this motion by either submitting a written document or by appearing in court on the return date.”;
b. be supported by affidavit and other proof, including but not limited to:
i. proof of ownership of the mortgage and the note,
ii. photographs evidencing that the subject property is vacant and abandoned as provided for under subdivision two of this section, and
iii. if available, utility company records or other documentation evidencing the vacant and abandoned status of the premises;
c. set forth, supported by documentary evidence, the sums alleged to be due and owing upon the subject mortgage and note, including the current principal balance and a detailed and itemized account of each fee, each cost, and a calculation of interest accrued; and
d. request that the court confirm the sums due and owing upon the subject mortgage and note without appointment of a referee.
B. Additional Requirement that Statute Imposes on the Courts
The court shall promptly send a notice to the defendant of the plaintiff’s notice of motion or order to show cause for a judgement of foreclosure and sale on the grounds that the subject property is vacant and abandoned. The notice shall advise the defendant that the lender is asking the court to expedite a judgement of foreclosure and sale of his or her property on the ground that it is vacant and abandoned and about the time and place of the court date. The notice shall be in a form prescribed by the courts, or, at the discretion of the courts.
**Commentary: It may be prudent to prepare a proposed Letter to Send to Defendants for the Court that complies with the above referenced contents in order to expedite the Court’s decision on the underlying Motion.
10. Receive the Entered Order Granting Judgment of Foreclosure and Sale on the Grounds that the Subject Property is Vacant and Abandoned and Serve Notice of Entry of same.
11. Schedule Foreclosure Auction
Written by Michael Derosa, Esq.