N.Y. Real Property Actions & Proceedings Law § 1309: Expedited application for judgment of foreclosure and sale for vacant and abandoned property

§ 1309. Expedited application for judgment of foreclosure and sale for

vacant and abandoned property. 1. The plaintiff in any foreclosure

proceeding may make an application by notice of motion or order to show

cause for a judgment of foreclosure and sale on the grounds that the

subject property is vacant and abandoned. The motion or order to show

cause shall include the last known address of the borrower and the

property address. Notwithstanding subdivision (m) of rule thirty-four

hundred eight of the civil practice law and rules no such application

may be made until the defendant's time to answer the complaint in the

foreclosure proceeding shall have expired. Such application shall be

served on defendant, regardless of whether a defendant has filed an

answer or appeared in the case. Such application shall: (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) "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) "You have the

right to stay in your property until a court orders you to leave"; and

(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. 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.

2. (a) As used in this section, "vacant and abandoned residential

property" means residential real property, as defined in section

thirteen hundred five of this article, with respect to which the

plaintiff has proven, by preponderance of the evidence, that it has

conducted at least three consecutive inspections of such property, with

each inspection conducted twenty-five to thirty-five days apart and at

different times of the day, and at each inspection (i) no occupant was

present and there was no evidence of occupancy on the property to

indicate that any persons are residing there; and (ii) the residential

real property was not being maintained in a manner consistent with the

standards set forth in New York property maintenance code chapter 3

sections 301, 302 (excluding 302.2, 302.6, 302.8), 304.1, 304.3, 304.7,

304.10, 304.12, 304.13, 304.15, 304.16, 307.1 and 308.1.

(b) Residential real property will also be deemed vacant and abandoned

if:

(i) A court or other appropriate state or local governmental entity

has formally determined, following due notice to the borrower at the

property address and any other known addresses, that such residential

real property is vacant and abandoned; or

(ii) Each borrower and owner has separately issued a sworn written

statement, expressing his or her intent to vacate and abandon the

property and an inspection of the property shows no evidence of

occupancy to indicate that any persons are residing there.

(c) Evidence of lack of occupancy shall include but not be limited to

the following conditions: (i) overgrown or dead vegetation; (ii)

accumulation of newspapers, circulars, flyer or mail; (iii) past due

utility notices, disconnected utilities, or utilities not in use; (iv)

accumulation of trash, refuse or other debris; (v) absence of window

coverings such as curtains, blinds, or shutters; (vi) one or more

boarded, missing or broken windows; (vii) the property is open to casual

entry or trespass; or (viii) the property has a building or structure

that is or appears structurally unsound or has any other condition that

presents a potential hazard or danger to the safety of persons.

(d) Residential real property will not be deemed vacant and abandoned

if, on the property:

(i) There is an unoccupied building that is undergoing construction,

renovation, or rehabilitation that is proceeding diligently to

completion;

(ii) There is a building occupied on a seasonal basis, but otherwise

secure;

(iii) There is a building that is secure, but is the subject of a

probate action, action to quiet title, or other ownership dispute of

which the servicer has actual notice;

(iv) There is a building damaged by a natural disaster and one or more

owner intends to repair and reoccupy the property; or

(v) There is a building occupied by the mortgagor, a relative of the

mortgagor or a tenant lawfully in possession.

3. In connection with an application for a judgment of foreclosure and

sale on the ground that the subject property is vacant and abandoned,

the court may require the plaintiff or an agent to appear to provide

testimony in support of the application.

4. The court shall make a written finding as soon as practicable as to

whether the plaintiff has proved that the property to be foreclosed upon

pursuant to this section is vacant and abandoned pursuant to subdivision

two of this section and, if the court determines that the property is

vacant and abandoned, it shall set forth: (a) the evidence relied upon

by the court in finding that the property is vacant and abandoned; (b)

the evidence showing that the plaintiff is the owner and holder of the

subject mortgage and note, or has been delegated the authority to

institute a mortgage foreclosure action by the owner of same; and (c)

the sums due and owing upon the subject mortgage and note after a review

of the detailed and itemized account of each fee, each cost, and a

calculation of interest accrued.

5. With respect to foreclosure actions brought pursuant to this

section:

(a) A judgment of foreclosure and sale shall not be entered pursuant

to this section if the mortgagor or any other defendant has filed an

answer, appearance, other written objection that is not withdrawn, or

has otherwise demonstrated an intention to contest the foreclosure

action.

(b) A denial of a judgment of foreclosure and sale pursuant to this

section where the court does not find that the mortgaged property is

vacant and abandoned shall not be deemed to be on the merits for

purposes of any other proceeding with respect to such real property.

6. It shall be unlawful for a lender, assignee, mortgage loan

servicer, or a third party agent or other person acting on behalf of a

lender, assignee or mortgage loan servicer to enter residential real

property that is not vacant and abandoned for the purpose of forcing,

intimidating, harassing or coercing a lawful occupant of such

residential property to vacate that property in order to render the

property vacant and abandoned, or to otherwise force, intimidate,

harass, or coerce a lawful occupant of residential real property to

vacate that property so that it may be deemed vacant and abandoned,

provided however, a lender, assignee, mortgage loan servicer, or a third

party agent or other person acting on behalf of a lender, assignee or

mortgage loan servicer who peacefully enters a vacant and abandoned

property in order to render the property vacant and abandoned shall be

immune from liability when such lender, assignee, mortgage loan

servicer, third party agent or other person acting on behalf of a

lender, assignee or mortgage loan servicer is making reasonable efforts

to comply with this section.

7. The chief administrative judge of the courts shall adopt such rules

as he or she deems necessary to expeditiously implement the provisions

of this section.