Eviction Rules are NOT the same everywhere in NY

On June 22, 2011, in Landlord-Tenant, by John A. Weber IV, ESQ.

Eviction Rules Fluctuate

Eviction rules fluctuate between the counties of New York State.  There has been an increasingly high volume of calls from landlords who live in one county but have rental properties in another county.  This causes issues where the landlord has one understanding of the eviction procedure for where he lives, but that procedure differs significantly from the procedure in the county in which their rental property is located.  These differences run along a wide variety of topics including whether or not the landlord should be present as the sheriff or marshal executes a warrant of eviction.  Not knowing the rules for the county in which you are planning on litigating in, can lead to penalties that range from fines to jail time.  It is always advisable to speak with an attorney before commencing legal action.  As always, feel free to contact us with any questions or concerns involving evictions in your county at (516) 858-2620!

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Foreclosures Plunge

On December 16, 2010, in Foreclosure, by John A. Weber IV, ESQ.

Robbie L. Vaughn, Esq. is quoted in the following New York Law Journal article written by Andrew Keshner.  Mr. Keshner details how the new Attorney Affirmation requirement has impacted recent foreclosure filings.

As stated in the article, we have seen a substantial decline in calls from homeowners seeking foreclosure defense representation. However, we have had an increase in calls from homeowners wishing to evict tenants.  The evictions seem to be driven by the homeowner’s desire to Short sale their property.  We’re not yet sure if lenders have become more willing to approve short sales, but we do find it interesting that foreclosure actions have declined and short sales seem to be on the rise.
The following article is from Law.com:

Foreclosures Plunge as Lawyers Adjust to New Affirmation Rule

Andrew Keshner

New York Law Journal

December 16, 2010

Statewide filings of new foreclosures plummeted after Chief Judge Jonathan Lippman on Oct. 20 required attorneys for lenders to submit affirmations attesting to the accuracy of their court submissions, state figures show.

There were 797 residential foreclosure filings during Oct. 18-24, the week of the chief judge’s announcement of the requirement, according to the Office of Court Administration. There has been a precipitous decline since then; only 100 filings were recorded during the week of Dec. 6-12.

The drop-off has been particularly stark in counties where lenders have been especially active in seeking foreclosures. For example, filings fell to six from 274 in Suffolk County and to two from 53 in Brooklyn between the week Judge Lippman made his announcement and last week. Only in Queens have filings remained at a relatively high level, falling to 48 from 88 during the same period.

Attorneys and court officials anticipate the decline will be temporary and that foreclosures will start rising again as lenders and their attorneys become familiar with the new requirements and adjust their procedures.

“I assume it’s a blip in the process,” said Paul Lewis, chief of staff to Chief Administrative Judge Ann Pfau. “It’s a breather, it’s not an end to foreclosure in the court system.”

For the moment though, lenders and their attorneys are still struggling to come to grips with a system that requires attorneys to communicate with named representatives of their clients and to assure the courts that the papers they file contain “no false statements of fact or law” (NYLJ, Oct. 21). Violation of the requirement could lead to disciplinary action.

Mr. Lewis said he had expected a slowdown as attorneys studied the affirmation. However, he called the actual statistics “surprising.”

“I knew there’d be a drop off, but not of this magnitude,” he said.

“The pace of foreclosures has slowed considerably as both law firms and their clients work on procedures to comply with the new affirmation requirements,” said Steven J. Baum in an e-mail. Mr. Baum’s Amherst-based law firm represented lenders in more than 20,000 actions statewide last year.

A Long Island attorney who represents lenders but declined to be named for fear of antagonizing court officials, said that she has signed a few affirmations in cases involving smaller banks. But her firm has canceled all sales and is waiting for direction from its larger bank clients on how to proceed.

“They really put a finger in the dam so that nothing’s moving,” she said of the courts action.

The dynamic was highlighted in a decision Monday by Brooklyn Supreme Court Justice Arthur Schack (See Profile) in Citimortgage v. Nunez, 2558-2009. Noting that Citimortgage’s counsel did not have an affirmation because the bank did not have procedures in place to comply with Judge Lippman’s order, Justice Schack dismissed the foreclosure action without prejudice.

“The Court does not work for CITI and cannot wait for CITI, a multi-billion dollar financial behemoth, to get its ‘act’ together,” the judge wrote. He later added, “Continuing the instant action without moving for a judgment of foreclosure and sale is the judicial equivalent of a ‘timeout,’ and granting a ‘timeout’ to plaintiff CITI is a waster of judicial resources.”

‘It Just Stopped’

Paul Riordan is a court referee who oversees the settlement conferences in Monroe County. Before the Oct. 20 announcement, the county was averaging between 100 and 150 residential foreclosure filings a month.

“It just stopped,” he said.

Mr. Riordan said that the few affirmations filed have come from locally owned banks and private deals, not from any national banks. He noted that the lenders’ attorneys he speaks with are resigned to submitting the affirmation but just need to figure out how to do so.

Christopher Palmer of Brooklyn-based Cullen and Dykman said he has signed about 10 affirmations, with other colleagues signing even more.

“It’s a little bit scary, but certainly is serving its purpose” of insuring that court papers are accurate, he said.

But the Long Island attorney said she considered the requirement “preposterous,” observing that in no other area are lawyers required to submit written pledges that clients are being truthful.

“If every criminal lawyer had to swear that their clients were telling the truth, no one would practice criminal law,” she said.

In a November interview, Judge Lippman said the affirmations, which came against a backdrop of publicity about “robosigning” and other negligence in foreclosures, underscored the importance of full and accurate paperwork in proceedings where the stakes for homeowners are so high.

“And, I might say, if the lawyers feel in some way by asking them to do what they should be doing anyway in some way makes them adversarial with their clients or slows down the proceeding, then so be it,” he said.

In Erie County—where Buffalo is located and where there have been only two foreclosure filings since Nov. 8—Supreme Court Justice Timothy J. Walker (See Profile) said he wrote to attorneys in some 220 pending cases on Dec. 9 to caution them that their matters would be dismissed if the required affirmations were not filed within 45 days. Given the financial stakes for the banks and with the attorneys’ reputation on the line, Judge Walker said he anticipates that most will comply.

“Eventually they are going to get things right. They have to,” he said.

Meanwhile, Suffolk Supreme Court Justice Peter H. Mayer (See Profile) issued a number of orders in pending foreclosure actions, such as Citimortgage v. McGee, 25292-2009, saying affirmations must come with “any and all stages of new and pending foreclosure proceedings.”

Mr. Lewis, Judge Pfau’s chief of staff, said he has fielded between 40 and 50 calls from attorneys about the affirmation’s language, application and when it could be submitted.

He said the attorneys’ difficulties have been increased by the fact that many are working with hard-to-reach out-of-state clients.

“I don’t think they have the infrastructure for conferences and affirmations,” he said of the banks.

Mr. Lewis contrasted that situation to that prevailing in personal injury and medical malpractice cases where an insurance adjuster is on standby to authorize any settlement.

“You don’t have that with the banks. Banks have to come up with a system,” he said.

The filings have affected some foreclosure defense attorneys too. Robbie L. Vaughn of Vaughn & Weber in Mineola has noticed at least a 50 percent drop in new foreclosure defense business since late October. Of the approximately 40 to 50 active foreclosure cases the firm is now handling, about five have been started after October.

“It’s good if they’re taking their time to make sure the paperwork is in proper order,” he said, later adding that the slowdown is just temporary. “I think they are going to come back full force,” he said.

@|Andrew Keshner can be contacted at akeshner@alm.com.

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The following is from the NY Banking Department’s website:

October 8, 2010

To the Institution Addressed:

Recent events surrounding the foreclosure process of several mortgage loan servicers and the use of individuals identified as “robosigners” to execute affidavits without proper verification have raised considerable concerns for the Banking Department.

As you may be aware, on September 20, 2010, Ally Financial halted foreclosures in several states after discovering that faulty affidavits were filed in foreclosure cases.  Specifically, Ally indicated that certain individuals executed affidavits without personal knowledge of the allegations contained therein.  Subsequently, JP Morgan Chase and Bank of America made similar announcements concerning documents filed in foreclosure actions.

Given the extent and severity of the issues raised, the Department is requesting that [Institution Addressed] conduct an internal review of its foreclosure practices in New York and provide a response by October 22, 2010 to the following:

  • The steps you are taking or have taken to review your foreclosure process in New York;
  • The results of your review, including a description of the process for verifying affidavits submitted in support of foreclosure actions in New York and which, if any, of your employees or agents have executed foreclosure documents without direct personal knowledge of the facts or with other irregularities;
  • The corrective action, if any, you have taken or intend to take in response to the results of your internal review;
  • The measures taken to ensure that affidavits filed in New York foreclosure actions are executed in compliance with New York law; and
  • The status of pending foreclosure actions (including foreclosure sales and evictions) in New York and the measures taken to suspend such actions pending your review and corrective action.

In the interim, we are requesting that [Institution Addressed] suspend foreclosure actions in New York until such time as it has conducted a thorough analysis of its foreclosure practices and determined that such practices are in compliance with New York law.

Please visit our Foreclosure category to learn more about foreclosure issues.

The following is from a recent Washington Post article:

A top federal bank regulator said Thursday that he has directed seven of the nation’s largest lenders to review their foreclosure processes after learning about the widespread mishandling of homeowner evictions by the industry.

John Walsh, acting director of the Office of the Comptroller of the Currency, told lawmakers during a hearing on the financial regulatory overhaul enacted this summer that some lenders “clearly had deficiencies” in their system for foreclosures.

The banks contacted by regulators include J.P. Morgan Chase, which announced Wednesday that it was freezing 56,000 foreclosures after finding errors in its preparation of documents, according to OCC spokesman Kevin Mukri. Other lenders contacted include Bank of America, Citibank, HSBC, PNC Bank, U.S. Bank and Wells Fargo.

“We both want to see that they fix the processing problems but also to look to see whether there is specific harm [that has been caused] in individual cases,” Walsh said.

Revelations about widespread paperwork problems with foreclosures led Ally Financial, another major lender, to suspend evictions last week in 23 states where a court order is required to seize a property. Since then, the industry’s handling of foreclosures has come under close scrutiny from regulators, with attorneys general in several other states calling for Ally to halt foreclosures.The paperwork problems range from potentially forged documents to bank employees who never read borrowers’ files before signing off on an eviction.

In J.P. Morgan’s case, Mukri said the bank “determined that its affidavit procedures were non-compliant with foreclosure processing requirements in some states.” He added that although J.P. Morgan has fixed internal procedures, the “negative impact or harm to customers has not been determined at this point.”

“While we don’t expect our review to find that consumers were harmed, we will take appropriate action if we find any impact,” JP Morgan spokesman Tom Kelly said.

Mukri would not comment about other banks but said that the OCC has teams permanently stationed at each one and that those teams have been in close contact with senior management at the banks to ensure the reviews are completed in a timely manner.

Citibank declined to comment on the OCC’s request but said it has strong training to ensure that employees in its foreclosure group are aware that they should have personal knowledge of the information in documents that require this before signing them and that staffing levels are adequate to allow them to review them properly.

There was no immediate comment from the other banks on Thursday.

Read the entire article here.

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