Decision Issued in Kessler Case

On February 14, 2023, the New York Court of Appeals issued its decision in the case of Bank of America v. Kessler. As you are aware, last year, the Kessler decision issued by the Second Department resulted in a significant upheaval in the state, resulting in a plethora of dismissals or voluntary discontinuances due to 90 day notices containing additional information including disclosures required by Federal law.

NYMBA was one of multiple trade organizations that filed an Amicus Brief with the Court of Appeals on this case, recognizing the impact that the case had on its members and industry as a whole. Today, we are excited to announce to our members that the Court of Appeals reversed the decision issued by the Second Department Appellate Division, holding that the inclusion of concise and relevant additional information did not void the notice sent pursuant to Real Property Action and Proceedings Law §1304.

In reviewing the objectives of the legislature in enacting §1304, the Court identified two parts to review: (1) that the notice “shall include” the specified language; and (2) the notice must be sent in a separate envelope. Relying on the plain language and reading of the statute, the court determined that, in reference to the wording “shall include,” the legislature did not intend for the notice to only include the statutorily required language. As such, as the notice in Kessler included the required language per §1304, the notice complied with the requirements.

The focus then shifted to the main issue at the heart of the case as to whether the additional language violated the separate mailing requirement by constituting “other mailing or notice.” The Court of Appeals noted that to read this provision as the lower courts and apply a bright line rule “would lead to nonsensical results.” The Court clarified that “other mailing or notice” refers to notices such as default notices, interest rate changes, monthly statements, or servicer change letters. However, again looking to the legislative purpose of §1304, the Court concluded that since §1304 was designed to help borrowers avoid foreclosure, the inclusion of additional rights actually furthered the purpose of §1304. Finally, the Court noted that applying the bright-line rule also would conflict with the disclosure requirements of federal law.

Please note, the Court was conscious to note that additional language should not be “false, misleading, obfuscatory, or unrelated to the purpose of the notice”, and inclusion of such language could still void the notice.

Submitted by: Natalie Grigg, Partner of Member firm Woods Oviatt Gilman

NYMBA meets with Governor Cuomo’s Staff on Manufactured Housing Title Conversion

October 25, 2019:  NYMBA, with other industry professionals, met with the Governor’s staff about the need for titling conversion in New York. Currently, manufactured housing is titled as personal property/chattel and there is no mechanism to convert title to real property. New York is the only state that does not allow for title conversion for manufactured housing.

With over 190,000 manufactured housing units in New York State, primarily located in rural upstate, western New York, and areas of Long Island and Staten Island, manufactured housing remains a source of affordable housing and a means for low and moderate income New Yorkers to establish wealth and financial security.

The Governor’s staff was very receptive to having a process for title conversion as it benefits many New Yorkers around the state and we look forward to continuing the conversation.

Loan Servicers meet with NYS Legislators

2019 Fahy McDonald Working meeting (2)

October 4, 2019:  Loan Servicing Committee members were asked to meet with some members of the New York State Legislature regarding “Zombie Properties” and foreclosures in the state. Assembly members Fahy and McDonald and Senator Breslin were interested in how bid prices are arrived at for properties at foreclosure auctions. The issue of maintenance and upkeep of vacant properties that are mortgaged was also raised.

Jodi Gaines, NYMBA committee chair, provided an overview of the Loan Servicing Committee and the working groups that were formed in an effort to address vacancy and blight; the foreclosure court backlog in New York; improving relationships and communications among all stakeholders; and industry professionals sharing best practices.

NYMBA reviewed investor and insurer requirements and instructions to banks/ loan servicers relative to arriving at bid prices at foreclosure sale/auction. Most financial institutions focus on current economic variables, not speculation–per shareholder and credit risk policies and have proprietary foreclosure bid strategies. NYMBA dispelled the perception that banks/servicers hold onto REOs as it is more costly to hold properties in inventory compared to selling them to a third party.

Each of New York State’s 62 counties has its own procedures and processes for handling foreclosure matters. Zombie Properties are identified as vacant and abandoned–including non-mortgaged properties; as a result of a number of circumstances: the death of a property owner, tax payment delinquencies and mortgage default are among the top causes. These properties are typically neglected resulting in a negative affect on neighboring property values and a drain on local governments.

Foreclosure timelines in New York are one of the longest in the country. Court delays occur due to the unique processes judges in each county employ when working with foreclosures. Until the backlog of foreclosure cases is addressed, New York will continue to encounter issues with vacancy, abandonment and blight. NYMBA continues to be an advocate for a fast-track foreclosure process of vacant and abandoned properties. NYMBA’s loan servicing committee offered suggestions to improve efficiency thereby reducing the length of time it takes to complete foreclosures in New York.

NYMBA continues to be a resource to law makers and stakeholders, and works toward identifying concerns, presenting solutions and preserving the housing market for New York consumers. New York Mortgage Bankers Association supports homeownership for New Yorkers throughout the state.

DFS listens to New York MBA

Peter Dean, Executive Deputy Superintendent and Rholda Rickets, Deputy Superintendent of New York State Department of Financial Services met with New York MBA Executive Board members regarding Federal legislation mandating Temporary Authority for Loan Officers; the new state regulation mandating Credit Reporting Agency Registry and proposed Online Notarization.

DFS meeting 7.19.2018