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Legal Research Library   >   Residential Mortgage Foreclosures ...

Residential Mortgage Foreclosures,
Special Summons Requirementy
By Michael P. Miglino, Esq.

Pursuant to Chapter 458 of the Laws of 2007, the Real Property Actions and Proceedings Law (RPAPL) has been amended by adding a new Section 1320 which provides that in an action to foreclose a mortgage on a residential property containing not more than 3 units, in addition to the usual requirements applicable to a summons, the summons shall contain a notice in bold-face which provides as follows:

IF YOU DO NOT RESPOND TO THIS SUMMONS AND COMPLAINT BY SERVING A COPY OF THE ANSWER ON THE ATTORNEY FOR THE MORTGAGE COMPANY WHO FILED THIS FORECLOSURE PROCEEDING AGAINST YOU AND FILING THE ANSWER WITH THE COURT, A DEFAULT JUDGMENT MAY BE ENTERED AND YOU CAN LOSE YOUR HOME.

SPEAK TO AN ATTORNEY OR GO TO THE COURT WHERE YOUR CASE IS PENDING FOR FURTHER INFORMATION ON HOW TO ANSWER THE SUMMONS AND PROTECT YOUR PROPERTY.

SENDING A PAYMENT TO YOUR MORTGAGE COMPANY WILL NOT STOP THIS FORECLOSURE ACTION.

YOU MUST RESPOND BY SERVING A COPY OF THE ANSWER ON THE ATTORNEY FOR THE PLAINTIFF (MORTGAGE COMPANY) AND FILING THE ANSWER WITH THE COURT.

Chapter 458 also amended CPLR Section 3215,Subd.G(3)(iii), to provide that the above requirement shall not apply to cases in the small claims part of any court, or to actions affecting title to real property EXCEPT RESIDENTIAL MORGTAGE FORECLOSURE ACTIONS.

The statute became effective on the date of enactment which was August 7, 2007. The summons in any residential mortgage foreclosure action of 3 units or less must comply with the new requirement.

A copy of the statute is attached for your information. Should you have any questions, please contact Company Counsel.

Introduced by Sen. DeFRANCISCO -- (at request of the Office of Court Administration) -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary.

AN ACT to amend the real property actions and proceedings law and the civil practice law and rules, in relation to providing additional notice to mortgagors that a foreclosure action has been commenced.

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

Section 1. The real property actions and proceedings law is amended by
adding a new section 1320 to read as follows:

S 1320. SPECIAL SUMMONS REQUIREMENT IN PRIVATE RESIDENCE CASES. IN AN ACTION TO FORECLOSE A MORTGAGE ON A RESIDENTIAL PROPERTY CONTAINING NOT MORE THAN THREE UNITS, IN ADDITION TO THE USUAL REQUIREMENTS APPLICABLE TO A SUMMONS IN THE COURT, THE SUMMONS SHALL CONTAIN A NOTICE IN BOLD FACE IN THE FOLLOWING FORM:

NOTICE: YOU ARE IN DANGER OF LOSING YOUR HOME IF YOU DO NOT RESPOND TO THIS SUMMONS AND COMPLAINT BY SERVING A COPY OF THE ANSWER ON THE ATTORNEY FOR THE MORTGAGE COMPANY WHO FILED THIS FORECLOSURE PROCEEDING AGAINST YOU AND FILING THE ANSWER WITH THE COURT, A DEFAULT JUDGMENT MAY BE ENTERED AND YOU CAN LOSE YOUR HOME. SPEAK TO AN ATTORNEY OR GO TO THE COURT WHERE YOUR CASE IS PENDING FOR FURTHER INFORMATION ON HOW TO ANSWER THE SUMMONS AND PROTECT YOUR PROPERTY. SENDING A PAYMENT TO YOUR MORTGAGE COMPANY WILL NOT STOP THIS FORECLOSURE ACTION. YOU MUST RESPOND BY SERVING A COPY OF THE ANSWER ON THE ATTORNEY FOR THE PLAINTIFF (MORTGAGE COMPANY) AND FILING THE ANSWER WITH THE COURT. S 2. Subparagraph (iii) of paragraph 3 of subdivision (g) of section 22 3215 of the civil practice law and rules, as added by chapter 77 of the laws of 1986, is amended to read as follows:

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets { } is old law to be omitted. LBD10538-01-7

S.2 4210 (iii)This requirement shall not apply to cases in the small claims part of any court, or to any summary proceeding to recover possession of real property, or to actions affecting title to real property, EXCEPT RESIDENTIAL MORTGAGE FORECLOSURE ACTIONS.

S 3. This act shall take effect immediately.

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