UPDATE ON TEMPORARY NEW YORK STATE RESIDENTIAL AND COMMERCIAL FORECLOSURE PROTOCOLS

• Posted on: Jun 26 2020

Recognizing the “continuing restrictions on the filing and prosecution of foreclosure matters in New York State arising during the course of the COVID-19 public health emergency,” on June 23, 2020, Chief Administrative Judge Lawrence K. Marks issued a memorandum [HERE] (the “June 23 Memorandum”) on temporary protocols (the “Protocols”) for residential and commercial foreclosure proceedings.  The temporary protocols became effective as of June 24, 2020.

The Protocols are as follows:

1. Filing of commencement documents in foreclosure proceedings must be made by NYSCEF or mail as per Administrative Order AO/121/20 (a copy of which is annexed as Attachment A to the Memorandum).

2. Commencement papers in commercial and residential mortgage foreclosure actions must include the following two additional documents as per Administrative Order AO/131/20 (a copy of which, with exhibits containing relevant forms, is annexed as Attachment  B to the Memorandum):

a. an affirmation from the lender’s attorney attesting to familiarity and compliance with “various state and federal restrictions and qualifications on foreclosure proceedings”; and,

b. an English and Spanish notice to “defendants-tenants … informing them that they may be eligible for an extension of time to respond to the complaint in light of legal directives related to the COVID-19 pandemic, and directing them to a website link for further information.”

3. Regardless of the filing of an answer, “further hearing of the case shall be stayed until such time as gubernatorial Executive Orders suspending statutory timetables for the prosecution of legal matters (i.e., 202.8, as extended by 202.14, 202.28, and 202.38) expire.”  The suspension of foreclosure matters (including auctions and most motion practice) (AO/68/20) will continue except for the following:

a. initial and follow-up virtual settlement conferences may be held in matters in which all parties are represented by counsel;

b. a motion for a judgment of foreclosure and sale can be made if the subject property is “vacant and abandoned”; and,

c. a lender can move to discontinue a pending case.

4. The only motion that will be entertained or decided is a motion to discontinue a case and only in matters addressing vacant and abandoned property, will a court issue a judgment of foreclosure and sale.

5. Further directives will be issued “[a]t or before the expiration of the Governor’s Executive Order suspending statutory timetables.”