New Foreclosure Law Expected to Be Signed Shortly by Governor

New protections for homeowners facing foreclosure as well as tenants living in foreclosed homes will take effect within two months after the governor signs Governor’s Program Bill #46, which was passed by the NYS Assembly and Senate on November 16th.  The governor is expected to sign the bill in the next few weeks.

Homeowners in default can expect to get a 90-day pre-foreclosure notice, enabling the homeowner to consider his or her options without imminent threat of a foreclosure.  Information about local housing counseling agencies, like TRIP and RCHR, will be provided to encourage the homeowner to seek assistance. 

Another key provision for a homeowner is the right to have a “mandatory settlement conference” with her/his lender (or their representative) in court, where both parties must “negotiate in good faith” during this mediation session.  Lenders may not charge the homeowner a fee for attending a settlement conference and may be subject to sanctions if they fail to come with financial documents and other information required by mediators.  

Additionally, when lenders notify the state of an impending foreclosure action, the state must send the borrower’s name to housing counseling agencies, which can then help prepare the borrower in advance of its settlement conference.  The settlement conference provision stems from the hope that lenders will be more apt to work with borrowers to modify their loans; currently lenders claim they are overwhelmed by requests for modifications while homeowners complain that their cases drag on for months and months, putting them further behind in their payments.  

The legislation also includes important protections for tenants of buildings that go into foreclosure, requiring that a separate notice be delivered to tenants within 10 days of the service of the summons and complaint to the mortgagor (borrower). The notice informs the tenants that the building is in foreclosure and that they may have the right to stay in occupancy for the remainder of their lease term, of if they have no written lease, for ninety days after they are informed of the name and contact information for the new owner by the person or entity who takes title. Tenants in 1 to 4 unit buildings must be sent the notice individually; for larger apartment complexes, the notice must be posted outside each exit and entrance.  

In order to avoid the deterioration that can impact an entire neighborhood when a foreclosed home is not kept up, a provision of the legislation requires the plaintiff (lender) in a foreclosure action to maintain the property (consistent with NY property maintenance code) after the judgment of foreclosure is issued and until the property is sold.  If a tenant occupies the property, the property must also be maintained in a safe and habitable condition.  This provision may be enforced by the municipality, tenants, or a homeowners association, in applicable.

To prevent distressed homeowners from falling prey to “rescue scams,” the bill also includes provisions prohibiting “distressed property consultants” from taking any payment before completion of services.

This legislation creates new legal rights and responsibilities.  The foregoing article is not intended to be a substitute for legal advice. If you are involved in a foreclosure action you should seek the advice of an attorney to understand how this legislation impacts your situation. Homeowners facing foreclosure can contact TRIP’s HomeOwnership Center at 690-0020 for assistance in determining their mortgage options and/or can contact Legal Aid directly at 462-6765.

For more information about the new State legislation providing foreclosure protections, contact TRIP at 272-8289 x214 or