The New York Senate and Assembly passed a bill extending the hardship declaration stay in New York for evictions and foreclosures in both residential and commercial matters until January 15, 2022. The bill mirrors previous bills creating and extending these hardship declaration related stays in nearly all ways except that a lender/landlord may now challenge the validity of the hardship in court.
In order to address the U.S. Supreme Court’s decision in Chrysafis v Marks, the bill now allows lenders or landlords to challenge the validity of the alleged hardship by serving a motion alleging their good faith belief that the filer has not, in fact, experienced a COVID-related hardship. If movants are successful in establishing the lack of a hardship, the matter will be permitted to proceed without further stay. The motion must be made on notice to the tenant/borrower who will then be permitted to submit evidence confirming their hardship. The Bill notes that the hardship declaration creates “a rebuttable presumption” that the borrower indeed has faced a COVID-related hardship which prevents them from paying the amounts due and owing. Functionally this means that any party challenging a hardship will have to establish that the borrower’s allegations made under “penalty of law” are untrue.
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