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Johann v Garcy 2008 NY Slip Op 33425(U) December 15, 2008 Supreme Court, Suffolk County Docket Number: 01421-08 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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SHOR'I F O K I L I ORDER

INDEX NO: 0 1421-08

SUPREME COURT - STATE OF NEW YORK I.A.S. PART XXVII SUFFOLK COUNTY
Motion Date: 09-24-08 Adj Date: 10-21-08 Motion Seq: 002-MD

PRES EIN?':
Honorable R,alph F. Costello
-- .

-~_ Plaintiff,
-,against-

X

lrnice Scsti Jvhann,

PLAINTIFF'S ATTORNEY RONALD R. LEVINE, ESQ.
Levine, Hofstetter & Frangk 3 16 Main Street Poughkeepsie, N Y 12601

(reorsc Garcy Susan Mintz Bello et al.,

Defendants.

Upon tlie following papers: (1) Notice of Motion for to Appoint a Referee dated September 3. 2008; and now, it is

ORDERED that plaintiffs motion in this foreclosure action is considered under 2008 , Y . ILaws 472, Section 3-a, enacted August 5,2008, and is hereby denied without prejudice and M ith leave to resubmit upon proper papers, including but not limited to evidentiary proof, iiicluding an affidavit from one with personal knowledge, as to whether or not the loan in foreclcsure in this action is a "subprime home loan" as defined in RPAPL $1304 or a "high-cost home loan" a s defined in Banking Law $6-1; and it is further

ORDERED that in tlie event the loan in foreclosure in this action meets the statutory definition 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 oiie wii h personal knowledge, as to whether the mortgagor defendant(s) is a resident of the subject property; and it is further
ORDERED that in the event the loan in foreclosure in this action meets the statutory definition 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 ~ ~ i personal knowledge, information regarding the defendant's residence address and t h contact infomiatjLon, sufficient for the Court to properly notify the defendant of a settlement conference pursuant to Section 3-a; and it is further

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OlZDEImD that the plaintiff shall promptly serve a copy of this Order upon the defendants via first class mail, and shall annex a copy of this Order and the affidavit of service of sailis as exhibit to any motion resubmitted pursuant to this Order; and it is further

ORLIEICED 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 ~pplicai.ions 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 1t is fu-ther

0RI)EItED that the plaintiff is directed to serve a copy of this decision and order upon
all parties.

On August 5,2008, Senate Bill 8143 was approved and enacted as 2008 N.Y. Laws 472.
In essence, the ,4ct: requires notice to a mortgagor regarding foreclosure protection and foreclosure riscue scams; requires a mortgagee or loan servicer to give notice a specified number c) f days befor e commencing an action; requires that a settlement conference be held; requires

idennEication of'subprime home loans or high-cost home loans in foreclosure actions; prohibits prepayment lees; and makes numerous changes relating to refinancing, mortgage fraud, loan servic ing, distressed property consultants, and other related matters. With regard to home niortg.jge loans, changes in ithe law include amendments to the Real Property Actions and Proceedings 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 distressed property consulting 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 the action was initiated prior 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 home 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 a 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 defedant requests a conference, the court shall hold such

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conference as soon as practicable for the purpose of holding settlement diiscussions 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.
tit any conference held pursuant to this section, the plaintiff shall a.ppear 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 se, the court shall advise the defendant of the nature of the action and tiis or her rights and responsibilities as a defendant. Where a.ppropriate, the court may permit a representative of the plaintiff to a.ttend 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 $1304, or a "higli-cost horne loan" as defined in Banking Law 6-1. RPAPL $1304(5)(c) defines a "subprime home loan" as follows: [A] home loan consummated between [January 1, 2003 and September 1, 20081 in which the terms of the loan exceed the threshold as defined in [RPAPL

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