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IndyMac Bank, F.S.B. v Katz 2008 NY Slip Op 33431(U) December 15, 2008 Supreme Court, Suffolk County Docket Number: 01279-08 Judge: Ralph F. Costello Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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INDEX NO: 01279-08

SUPREME COURT - STATE OF NEW YORK I.A.S., PART XXVII SUFFOLK COUNTY
Date Received: Seq: 001-MD
P RESIFiN'I':
-

August 8,08

Honorable Ralph F. Costello
X

IndyMdc Bank, F.S.B.,

PI ainti ff,
-against -

PLAINTIFF'S ATTORNEY GERALD ROTH, ESQ. Stein, Wiener & Roth, LLP One Old Country Road, Suite 113 Carle Place, NY 115 14

Marxxi Katz, Esther Katz et a].,

Defendants.

lJpori the following papers: (1) Ex parte application for Order of Reference received in this Court oil August 8, 2008; and now, it is

ORDEFIED that plaintiffs motion in this foreclosure action is considered under 2008 N . Y Laws 3 72, Section 3-a, enacted August 5,2008, and is hereby denied without prejudice and with leave to resubmit upon proper papers, including but not limited to evidentiary proof, including an affidavit from one with personal knowledge, as to whether or not the loan in foreclosure in this action is ,ii"subprime home loan" as defined in RPAPL $1304 or a "high-cost home loan" cis defined in Banking Law $6-1; and it is further ORDEFED that in 1he event the loan in foreclosure in this action meets the statutory defiiiii I on of "subprime home loan" or "high-cost home loan," the plaintiff shall include in any motion resubmitted in accordance with this Order evidentiary proof, including an affidavit from one with personal knowledge, as to whether the mortgagor defendant(s) is a resident of the subjecl property; and it is further ORDERED that in i.he event the loan in foreclosure in this action meets the statutory defini .ion of "subprime home loan" or "high-cost home loan," the plaintiff shall include in any rnoti o I resubmitted in accordance with this Order evidentiary proof, including an affidavit fiom one with personal knowledge, information regarding the defendant's residence address and contacl information, sufficient for the Court to properly notify the defendant of a settlement conf'eiencepursuant to Section 3-a; and it is further
ORDERED that the plaintiff shall promptly serve a copy of this Order upon the

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defendatnts vj a first class mail, and shall annex a copy of this Order and the affidavit of service of s,inle d s exhibit 1.0 any motion resubmitted pursuant to this Order; and it is further

ORDERED that with regard to any future applications resubmitted pursuant to this Order, plaintiffs papers shall comply with all other requirements set forth herein; and it is further
ORDERED that with regard to any future applications, if the Court determines that such applications have been submitted without proper regard for the applicable statutory and case law, or without regard for the required proofs delineated herein, the Court may, in its discretion, deny such applications with prejudice and/or impose sanctions pursuant to 22 NYCRR 5130-1, and may deny those costs and attorneys fees attendant with the filing of such future applications; and i1 is fiirthel-

ORD%R_ED the plaintiff is directed to serve a copy of this decision and order upon that
ail par !es.

On August 5,2008, Senate Bill 8143 was approved and enacted as 2008 N.Y. Laws 472. In essmce, the Act: requires notice to a mortgagor regarding foreclosure protection and foreclosure rescue scams; requires a mortgagee or loan servicer to give notice a specified number of day; before commencing an action; requires that a settlement conference be held; requires identification of subprime home loans or high-cost home loans in foreclosure actions; prohibits prepaqrnent fces; and makes numerous changes relating to refinancing, mortgage fraud, loan servicing, distressed property consultants, and other related matters. With regard to home mortgage loans, changes in the law include amendments to the Real Property Actions and Procscdings Law, the Civil Practice Law and Rules, the Banking Law and the General Obligations ]Law. The Penal Law and the Criminal Procedure Law has also been amended to create new crimes for mortgage fraud. And the Real Property Law has been amended with regard to di svessed property consul!ting contracts.
With regard to pending foreclosure actions, Section 3-a of the 2008 N.Y. Laws 472 states:

For any foreclosure action on a residential mortgage loan, in which t ne action was initiatedprior to September 1,2008 but where the final order ofjudgment has not yet been issued, the court shall request each plaintiff to identify whether the loan in foreclosure is a subprime bLome loan as defined in section 1304 of the real property actions and proceedings law or is a high-cost home loan as defined in section 6-1 of the banking law.

If the loan is ;T subprime home loan or high-cost home loan, the court shall notify the defendant that if he or she is a resident of such property, he or she may request a settlement conference.
If the defendant requests a conference, the court shall hold such conference as soon as practicable for the purpose of holding

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settlement discussions pertaining to the rights and obligations of the parties under the mortgage loan documents, including but not limited to, determining whether the parties can reach a mutually agreeable resolution to help the defendant avoid losing his or her home, and evaluating the potential for a resolution in which payment schedules or amounts may be modified or other workout options may be agreed to, and for whatever other purposes the court deems appropriate.
At any conference held pursuant to this section, the plaintiff shall appear in person or by counsel, and if appearing by counsel, such counsel shall be fully authorized to dispose of the case. The defendant shall appear in person or by counsel. If the defendant is appearing pro st?, the court shall advise the defendant of the nature of the action and his or her rights and responsibilities as a defendant. Where appropriate, the court may permit a representative of the plaintiff to attend the settlement conference telephonically or by videoconference.

The motion papers submitted in this matter establish that this is, indeed, a foreclosure action on a residential mortgage loan, that the action was initiated prior to September 1,2008, and that a final order of judgment has not yet been issued. Therefore, in accordance with the mandates of 2008 N.Y. Laws, Ch. 472, Section 3-a, the Court must ascertain from the plaintiff whether or not the loan in foreclosure is a "subprime home loan" as defined in RPAPL 4 1304, or a "high-cost home loan" as defined in Banking Law 6-1. RPAPL $1304(5)(c) defines a "subprime home loan" as follows:

[.4] home loan consummated between [January 1, 2003 and
September 1 , 20081 in which the terms of the loan exceed the tllreshold as defined in [RPAPL

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