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See Summary
S T A T E O F N E W Y O R K
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8993--A
2009-2010 Regular Sessions
I N A S S E M B L Y
June 17, 2009
___________
Introduced by M. of A. WEINSTEIN -- read once and referred to the
Committee on Judiciary -- reported and referred to the Committee on
Codes -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee
AN ACT to amend the real property actions and proceedings law and the
uniform commercial code, in relation to foreclosure of mortgage by
power of sale; to repeal article 14 of the real property actions and
proceedings law relating thereto; and providing for the repeal of
certain provisions upon expiration thereof
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Article 14 of the real property actions and proceedings law
2 is REPEALED and a new article 14 is added to read as follows:
3 ARTICLE 14
4 FORECLOSURE OF MORTGAGE BY POWER OF SALE
5 SECTION 1401. WHEN MORTGAGE MAY BE FORECLOSED.
6 1402. NOTICE OF INTENTION TO FORECLOSE.
7 1403. NOTICE OF PENDENCY OF NON-JUDICIAL PROCEEDING FOR FORECLO-
8 SURE BY POWER OF SALE.
9 1404. CONTENTS OF NOTICE OF SALE.
10 1405. NOTICE OF SALE; HOW GIVEN.
11 1406. NOTICE OF SALE; HOW SERVED.
12 1407. SALE; HOW POSTPONED.
13 1408. SALE; HOW CONDUCTED.
14 1409. MORTGAGEE OR SUCCESSOR IN INTEREST MAY PURCHASE.
15 1410. RIGHT TO REDEEM OF MORTGAGOR, SUBORDINATE LIENOR, OR HOLD-
16 ER OF SUBORDINATE INTERESTS.
17 1411. EFFECT OF SALE.
18 1412. CONVEYANCE.
19 1413. DISTRIBUTION OF PROCEEDS OF SALE.
20 1414. REPORT OF SALE.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14421-06-9
A. 8993--A 2
1 1415. FILING OF REPORT OF SALE.
2 1416. MULTIPLE COLLATERAL; DESIGNATION OF ORDER OF SALE OF
3 PARCELS.
4 1417. COSTS AND EXPENSES ALLOWED.
5 1418. APPLICATION FOR SURPLUS.
6 1419. DEFICIENCY JUDGMENT.
7 1420. RECEIVER.
8 1421. RIGHT TO SEEK JUDICIAL INTERVENTION; MORTGAGEE'S LIABIL-
9 ITY FOR FAILURE TO COMPLY WITH THIS ARTICLE.
10 1422. DATA COLLECTION AND REPORT.
11 S 1401. WHEN MORTGAGE MAY BE FORECLOSED. 1. THE PROVISIONS OF THIS
12 ARTICLE SHALL APPLY ONLY TO A MORTGAGE OF FIVE MILLION DOLLARS OR MORE
13 SECURED BY REAL PROPERTY SITUATED WITHIN THE STATE, EXCEPTING WHEN SUCH
14 MORTGAGE ON REAL PROPERTY:
15 (A) IS IMPROVED BY A RESIDENTIAL BUILDING OR BUILDING CONTAINING BOTH
16 RESIDENTIAL AND COMMERCIAL UNITS CONTAINING ONE OR MORE DWELLING UNITS,
17 INCLUDING STRUCTURES AND IMPROVEMENTS APPURTENANT THERETO, OR
18 (B) IS IMPROVED BY A RESIDENTIAL CONDOMINIUM UNIT IN A RESIDENTIAL
19 BUILDING OWNED IN A CONDOMINIUM FORM OF OWNERSHIP, OR
20 (C) IS IMPROVED BY A RESIDENTIAL BUILDING, INCLUDING STRUCTURES AND
21 IMPROVEMENTS APPURTENANT THERETO, OWNED BY A QUALIFIED COOPERATIVE
22 APARTMENT CORPORATION, OR
23 (D) CONTAINS INDIVIDUAL RESIDENTIAL COOPERATIVE DWELLINGS WITHIN SUCH
24 BUILDING, OR
25 (E) HAS AN OWNER WHO IS DECEASED OR DIES DURING THE PENDENCY OF THE
26 NON-JUDICIAL FORECLOSURE PROCEEDING.
27 2. IN THE EVENT THAT SUCH MORTGAGE OTHERWISE QUALIFIES PURSUANT TO
28 SUBDIVISION ONE OF THIS SECTION, AND THE MORTGAGE FOR THE BUILDING,
29 CONTAINS A PROVISION THAT, UPON A DEFAULT OF THE MORTGAGE, OR THE NOTE,
30 BOND OR OTHER OBLIGATION SECURED THEREBY, THE MORTGAGEE SHALL HAVE THE
31 RIGHT TO SELL THE MORTGAGED PROPERTY, SUCH PROPERTY MAY BE FORECLOSED IN
32 THE MANNER PRESCRIBED IN THIS ARTICLE FOR A NON-JUDICIAL PROCEEDING FOR
33 FORECLOSURE BY POWER OF SALE, WHERE THE FOLLOWING REQUISITES OCCUR:
34 (A) DEFAULT HAS OCCURRED UNDER THE MORTGAGE AND THE OUTSTANDING
35 INDEBTEDNESS HAS BEEN DECLARED IMMEDIATELY DUE AND PAYABLE BY WRITTEN
36 NOTICE TO THE MORTGAGOR GIVEN IN THE MANNER REQUIRED BY THE MORTGAGE.
37 (B) AN ACTION HAS NOT BEEN BROUGHT TO RECOVER THE DEBT SECURED BY THE
38 MORTGAGE, OR ANY PART THEREOF, OR TO FORECLOSE THE MORTGAGE UNDER ARTI-
39 CLE THIRTEEN OF THIS CHAPTER; OR, IF AN ACTION ON THE DEBT HAS BEEN
40 BROUGHT, IT HAS BEEN DISCONTINUED OR DISMISSED WITHOUT PREJUDICE AGAINST
41 THE PLAINTIFF, OR AN EXECUTION, ISSUED UPON A JUDGMENT RENDERED THEREIN
42 IN FAVOR OF THE PLAINTIFF, HAS BEEN RETURNED WHOLLY OR PARTLY UNSATIS-
43 FIED.
44 (C) THE MORTGAGE HAS BEEN DULY RECORDED IN ACCORDANCE WITH ARTICLE
45 NINE OF THE REAL PROPERTY LAW IN THE LAND RECORDS IN THE COUNTY WHERE
46 THE PROPERTY IS SITUATED.
47 (D) THE FIRST NOTICE OF SALE HAS BEEN PUBLISHED WITHIN THE TIME IN
48 WHICH AN ACTION COULD BE COMMENCED TO FORECLOSE SUCH MORTGAGE.
49 3. A MORTGAGE AGREEMENT THAT REQUIRES THAT A MORTGAGOR WAIVE OR OTHER-
50 WISE LIMIT IN ANY WAY THE RIGHT TO BE SUBJECT TO FORECLOSURE PURSUANT TO
51 ARTICLE THIRTEEN OF THIS CHAPTER SHALL BE NULL AND VOID.
52 S 1402. NOTICE OF INTENTION TO FORECLOSE. 1. NOT LATER THAN TEN DAYS
53 AFTER COMMENCING THE NON-JUDICIAL PROCEEDING BY FILING THE NOTICE OF
54 PENDENCY PURSUANT TO SECTION FOURTEEN HUNDRED THREE OF THIS ARTICLE, AND
55 NOT LESS THAN TEN DAYS PRIOR TO THE FIRST SERVICE OF THE NOTICE OF SALE
56 PURSUANT TO SECTION FOURTEEN HUNDRED SIX OF THIS ARTICLE, A COPY OF THE
A. 8993--A 3
1 NOTICE OF PENDENCY, TOGETHER WITH A NOTICE OF INTENTION TO FORECLOSE, IN
2 A WRITING COMPLYING WITH SUBDIVISION TWO OF THIS SECTION, SHALL BE SENT
3 TO THE MORTGAGOR, THE OBLIGOR ON THE NOTE, BOND, OR OTHER OBLIGATION IF
4 OTHER THAN THE MORTGAGOR, THE OWNER OF THE MORTGAGED PROPERTY, IF OTHER
5 THAN THE MORTGAGOR, AND TO ANY PERSON OR ENTITY HAVING A LIEN OF RECORD
6 UPON THE MORTGAGED PROPERTY, OR INTEREST IN THE MORTGAGED PROPERTY
7 SUBORDINATE TO THE MORTGAGE THAT THE MORTGAGEE SEEKS TO FORECLOSE, AT
8 THE TIME OF THE FILING OF THE NOTICE OF PENDENCY OF WHICH THE MORTGAGEE
9 HAS ACTUAL KNOWLEDGE OR IS ON CONSTRUCTIVE NOTICE, BOTH BY (A) REGIS-
10 TERED MAIL OR CERTIFIED MAIL AND (B) ORDINARY FIRST CLASS MAIL, OR BY
11 PERSONAL SERVICE IN THE SAME MANNER AS SERVICE OF A SUMMONS. SUCH NOTICE
12 SHALL BE SENT TO THE OWNER OF THE MORTGAGED PROPERTY AT THE ADDRESS OF
13 THE PROPERTY OR AT SUCH OTHER ADDRESS THAT IS KNOWN TO THE MORTGAGEE, TO
14 A MORTGAGOR AT THE MORTGAGOR'S ADDRESS SPECIFIED IN THE MORTGAGE OR TO
15 SUCH OTHER PLACE AS MAY HAVE BEEN DIRECTED BY THE MORTGAGOR IN WRITING
16 IN ACCORDANCE WITH THE MORTGAGE, AND TO ANY PERSON OR ENTITY HAVING A
17 LIEN OF RECORD SUBORDINATE TO THE MORTGAGE THAT THE MORTGAGEE SEEKS TO
18 FORECLOSE AT THE ADDRESS SHOWN ON SUCH LIEN. THE NOTICE SHALL BE SENT TO
19 A PERSON OR ENTITY HAVING ANY SUBORDINATE INTEREST IN THE MORTGAGED
20 PROPERTY THAT THE MORTGAGEE SEEKS TO FORECLOSE AND OF WHICH THE MORTGA-
21 GEE HAS SUCH ACTUAL KNOWLEDGE OR CONSTRUCTIVE NOTICE AT SUCH PERSON'S OR
22 ENTITY'S LAST KNOWN PERSONAL OR BUSINESS ADDRESS.
23 2. THE NOTICE SHALL:
24 (A) IDENTIFY THE MORTGAGE BY THE PARTIES THERETO, THE DATE AND RECORD-
25 ING DATE THEREOF, AND ANY RECORDED AMENDMENTS AND MODIFICATIONS THEREOF;
26 (B) (1) IF THERE IS A MONETARY DEFAULT, SET FORTH THE AMOUNTS DUE, THE
27 DATE DUE AND ANY LATE CHARGES AND DEFAULT INTEREST;
28 (2) IF THERE IS A NON-MONETARY DEFAULT, SET FORTH THE BASIS THEREOF;
29 (C) STATE THAT THE MORTGAGEE HAS (1) MADE DEMAND TO CURE A DEFAULT IF
30 SUCH DEMAND IS REQUIRED UNDER THE MORTGAGE OR THE NOTE, BOND OR OTHER
31 OBLIGATION SECURED THEREBY, WHICH DEFAULT HAS NOT BEEN CURED WITHIN THE
32 APPLICABLE CURE PERIOD, AND (2) DECLARED THE ENTIRE OBLIGATION SECURED
33 BY THE MORTGAGE TO BE IMMEDIATELY DUE AND PAYABLE BY WRITTEN NOTICE TO
34 THE MORTGAGOR;
35 (D) SET FORTH THE OUTSTANDING PRINCIPAL BALANCE DECLARED DUE AND PAYA-
36 BLE, TOGETHER WITH THE AMOUNT OF INTEREST ACCRUED THEREON AND THE
37 APPROXIMATE AMOUNT OF OTHER SUMS SECURED BY THE MORTGAGE;
38 (E) STATE THAT THE INTEREST IN THE MORTGAGED PROPERTY OF THE MORTGAGOR
39 AND ALL PERSONS OR ENTITIES HAVING AN INTEREST IN THE MORTGAGED PROPERTY
40 SUBORDINATE TO THE MORTGAGE, WHO ARE SERVED WITH A COPY OF THE NOTICE OF
41 INTENTION TO FORECLOSE AND ANY OTHER NOTICES REQUIRED UNDER THIS ARTI-
42 CLE, WILL BE TERMINATED BY FORECLOSURE OF THE MORTGAGE BY POWER OF SALE
43 PURSUANT TO THIS ARTICLE AND THAT THE MORTGAGOR, OWNER, OR SUCH OTHER
44 PERSON OR ENTITY HAVING AN INTEREST IN THE MORTGAGED PROPERTY SUBORDI-
45 NATE TO THE MORTGAGE, MAY THEREUPON BE EVICTED BY JUDICIAL PROCESS;
46 (F) SET FORTH THE RIGHT OF THE MORTGAGOR, OR ANY PERSON OR ENTITY
47 HAVING AN INTEREST IN THE MORTGAGED PROPERTY SUBORDINATE TO THE MORT-
48 GAGE, TO ANY SURPLUS MONEYS OUT OF THE PROCEEDS OF SALE IN ACCORDANCE
49 WITH THE PROVISIONS OF SECTION FOURTEEN HUNDRED EIGHTEEN OF THIS ARTI-
50 CLE; AND, IF A DEFICIENCY JUDGMENT IS PERMITTED, THAT THE MORTGAGEE
51 SHALL HAVE THE RIGHT TO SEEK A DEFICIENCY JUDGMENT PURSUANT TO SECTION
52 FOURTEEN HUNDRED NINETEEN OF THIS ARTICLE;
53 (G) SET FORTH THE RIGHTS AND REMEDIES, AS SPECIFIED IN SECTION FOUR-
54 TEEN HUNDRED TWENTY-ONE OF THIS ARTICLE, WHICH ARE AVAILABLE TO THE
55 MORTGAGOR, OR ANY PERSON OR ENTITY CLAIMING UNDER THE MORTGAGOR OR
A. 8993--A 4
1 HAVING AN INTEREST IN OR LIEN UPON THE MORTGAGED PROPERTY WHICH IS
2 SUBORDINATE TO THE MORTGAGE BEING FORECLOSED; AND
3 (H) WHERE THE UNITED STATES OF AMERICA, THE STATE OF NEW YORK, OR ANY
4 MUNICIPALITY, AGENCY OR INSTRUMENTALITY OF ANY OF THEM, IS ENTITLED TO
5 NOTICE, THE NOTICE SHALL SPECIFY WITH PARTICULARITY THE NATURE OF THE
6 INTEREST OR LIEN OF THE GOVERNMENTAL ENTITY. THE NON-JUDICIAL PROCEEDING
7 UNDER THIS ARTICLE SHALL BE DEEMED TO BE AN ACTION, FOR PURPOSES OF
8 STATUTES CONFERRING JURISDICTION OVER GOVERNMENTAL ENTITIES.
9 3. AFFIDAVITS OF SERVICE OR MAILING UPON EACH OF THE PERSONS OR ENTI-
10 TIES ENTITLED TO AND SERVED WITH THE NOTICE OF INTENTION TO FORECLOSE
11 SHALL BE FILED PRIOR TO THE DATE OF SALE UNDER THE INDEX NUMBER OF THE
12 NON-JUDICIAL PROCEEDING WITH THE CLERK OF THE COUNTY IN WHICH THE SALE
13 IS TO TAKE PLACE.
14 S 1403. NOTICE OF PENDENCY OF NON-JUDICIAL PROCEEDING FOR FORECLOSURE
15 BY POWER OF SALE. 1. THE MORTGAGEE SHALL, PRIOR TO THE FIRST SERVICE OF
16 THE NOTICE OF INTENTION TO FORECLOSE, PURCHASE AN INDEX NUMBER IN THE
17 OFFICE OF THE COUNTY CLERK OF THE COUNTY IN WHICH THE SALE IS TO TAKE
18 PLACE AND FILE IN THE CLERK'S OFFICE OF EACH COUNTY WHERE THE MORTGAGED
19 PROPERTY IS SITUATED A NOTICE OF THE PENDENCY OF THE NON-JUDICIAL
20 PROCEEDING FOR FORECLOSURE BY POWER OF SALE WHICH SHALL, IN ADDITION TO
21 THE APPLICABLE REQUIREMENTS OF ARTICLE SIXTY-FIVE OF THE CIVIL PRACTICE
22 LAW AND RULES, SPECIFY THE DATE OF THE MORTGAGE, THE PARTIES THERETO,
23 THE TIME AND PLACE OF RECORDING, THE NAME OF THE RECORD OWNER OF THE
24 MORTGAGED PROPERTY, THE NAMES OF ANY SUBORDINATE LIENORS OR HOLDERS OF
25 SUBORDINATE INTERESTS ENTITLED TO NOTICE OF THE SALE, THE OBJECT OF THE
26 PROCEEDING FOR FORECLOSURE OF THE MORTGAGE BY POWER OF SALE, AND A
27 DESCRIPTION OF THE MORTGAGED PROPERTY, INCLUDING THE NUMBER OF EACH
28 BLOCK AND LOT ON THE LAND MAP OF THE COUNTY WHICH IS AFFECTED BY THE
29 NOTICE. IF THE NOTICE IS FILED IN MORE THAN ONE COUNTY, THE NOTICE SHALL
30 DESIGNATE THE COUNTY IN WHICH THE SALE IS TO TAKE PLACE. THE PROVISIONS
31 OF ARTICLE SIXTY-FIVE OF THE CIVIL PRACTICE LAW AND RULES REQUIRING THE
32 SERVICE AND FILING OF A SUMMONS SHALL NOT BE APPLICABLE TO A NON-JUDI-
33 CIAL PROCEEDING FOR FORECLOSURE BY POWER OF SALE PURSUANT TO THIS ARTI-
34 CLE.
35 2. THE FILING OF THE NOTICE OF PENDENCY SHALL BE DEEMED TO BE THE
36 COMMENCEMENT OF THE NON-JUDICIAL PROCEEDING FOR FORECLOSURE BY POWER OF
37 SALE PURSUANT TO THIS ARTICLE.
38 3. THE NOTICE OF PENDENCY SHALL BE EFFECTIVE FOR A PERIOD OF THREE
39 YEARS FROM THE DATE OF FILING. BEFORE EXPIRATION OF A PERIOD OR EXTENDED
40 PERIOD, THE COURT, UPON MOTION OF THE MORTGAGEE AND UPON SUCH NOTICE AS
41 THE COURT MAY REQUIRE, MAY, FOR GOOD CAUSE SHOWN, GRANT AN EXTENSION FOR
42 AN ADDITIONAL THREE YEAR PERIOD. AN EXTENSION ORDER SHALL BE FILED AND
43 INDEXED BEFORE EXPIRATION OF THE NOTICE OF PENDENCY. IN THE EVENT THE
44 SALE HAS NOT TAKEN PLACE PRIOR TO THE EXPIRATION OF A PENDENCY PERIOD,
45 AND A LAPSE IN EXTENDING THE NOTICE OF PENDENCY HAS OCCURRED, A NEW
46 NOTICE OF PENDENCY MAY BE FILED UPON A COURT ORDER FROM THE SUPREME
47 COURT IN THE COUNTY IN WHICH THE SALE IS TO TAKE PLACE, ON A SHOWING
48 THAT NO PERSON OR ENTITY HAS BEEN PREJUDICED BY THE FAILURE TO EXTEND
49 THE NOTICE OF PENDENCY. IN THE EVENT THAT A PERSON OR ENTITY SHALL HAVE
50 ACQUIRED, AFTER THE EXPIRATION OF A NOTICE OF PENDENCY AND BEFORE ANOTH-
51 ER SHALL BE FILED, AN INTEREST IN OR LIEN UPON THE MORTGAGED PROPERTY
52 WHICH IS SUBORDINATE TO THE MORTGAGE, SUCH PERSON OR ENTITY SHALL BE
53 ENTITLED TO NOTICE OF THE SALE.
54 4. THE FILING OF THE NOTICE OF PENDENCY SHALL BE DEEMED TO BE CONCLU-
55 SIVE RECORD NOTICE TO ANY TENANT OR OCCUPANT WHO TAKES POSSESSION OF ALL
56 OR A PART OF THE MORTGAGED PROPERTY, OR ANY PERSON WHO OR ENTITY WHICH
A. 8993--A 5
1 ACQUIRES AN INTEREST IN OR LIEN UPON THE MORTGAGED PROPERTY, OR ANY PART
2 THEREOF, AFTER THE FILING OF THE NOTICE OF PENDENCY AND ALL SUCH PERSONS
3 OR ENTITIES SHALL BE BOUND THEREBY AND BY THE NON-JUDICIAL PROCEEDING
4 PURSUANT TO THIS ARTICLE.
5 5. THE PROVISIONS OF SECTION SIXTY-FIVE HUNDRED SIXTEEN OF THE CIVIL
6 PRACTICE LAW AND RULES SHALL NOT BE APPLICABLE TO ANY NOTICE OF PENDENCY
7 FILED PURSUANT TO THIS SECTION.
8 S 1404. CONTENTS OF NOTICE OF SALE. THE NOTICE OF SALE SHALL SPECIFY:
9 1. THE NAMES OF THE MORTGAGOR AND RECORD OWNER, IF OTHER THAN THE
10 MORTGAGOR, THE MORTGAGEE, AND OF EACH ASSIGNEE OF THE MORTGAGEE.
11 2. THE DATE OF THE MORTGAGE, THE DATE WHEN AND THE PLACE WHERE IT WAS
12 RECORDED, AND THE BOOK AND PAGE OR INDEX IN WHICH IT IS RECORDED AND THE
13 DATES AND RECORDING INFORMATION PERTAINING TO EACH ASSIGNMENT OF THE
14 MORTGAGE.
15 3. THE IDENTITY OF HOLDERS, IF ANY, OF SUBORDINATE INTERESTS IN THE
16 MORTGAGED PROPERTY WHICH THE MORTGAGEE SEEKS TO FORECLOSE WHICH ARE
17 RECORDED OR OF WHICH THE MORTGAGEE HAS ACTUAL OR CONSTRUCTIVE NOTICE AT
18 THE TIME OF THE FILING OF THE NOTICE OF PENDENCY, AND THE NATURE OF SUCH
19 SUBORDINATE INTERESTS.
20 4. THE OUTSTANDING PRINCIPAL SUM CLAIMED BY THE MORTGAGEE TO BE DUE
21 UPON THE MORTGAGE, TOGETHER WITH ACCRUED INTEREST THEREON, LATE CHARGES,
22 OTHER SUMS DUE UNDER THE MORTGAGE, AND SUMS ADVANCED BY THE MORTGAGEE
23 RECOVERABLE UNDER THE MORTGAGE INCLUDING THE COSTS OF SALE AND REASON-
24 ABLE ATTORNEYS' FEES AND DISBURSEMENTS, AT THE TIME OF THE FIRST PUBLI-
25 CATION OF THE NOTICE.
26 5. A LEGAL DESCRIPTION OF THE MORTGAGED PROPERTY, THE STREET ADDRESS,
27 AND THE BLOCK AND LOT OR OTHER TAX OR TAX MAP IDENTIFICATION.
28 6. IF THE MORTGAGED PROPERTY CONSISTS OF TWO OR MORE DISTINCT PARCELS,
29 UNLESS THE MORTGAGE PROVIDES THAT THE PARCELS SHALL BE SOLD AS ONE
30 PARCEL, THE NOTICE OF SALE SHALL SPECIFY THE ORDER IN WHICH THE PARCELS
31 SHALL BE SOLD.
32 7. THAT THE OWNER HAS THE RIGHT, UP TO AND INCLUDING THE TIME OF THE
33 SALE, TO REDEEM THE MORTGAGED PROPERTY UPON PAYMENT TO THE MORTGAGEE OF
34 THE OUTSTANDING PRINCIPAL BALANCE SECURED BY THE MORTGAGE, TOGETHER WITH
35 INTEREST ACCRUED THEREON, AND ALL OTHER SUMS DUE THEREUNDER, INCLUDING
36 THE COSTS OF SALE AND REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS.
37 8. THE DATE, PLACE AND TIME OF SALE.
38 S 1405. NOTICE OF SALE; HOW GIVEN. NOTICE THAT THE MORTGAGE WILL BE
39 FORECLOSED BY A SALE OF THE MORTGAGED PROPERTY, OR A PART THEREOF, AT A
40 TIME AND PLACE SPECIFIED IN THE NOTICE, SHALL BE GIVEN IN THE FOLLOWING
41 MANNER:
42 1. A COPY OF THE NOTICE SHALL BE SERVED, AS PRESCRIBED IN SECTION
43 FOURTEEN HUNDRED SIX OF THIS ARTICLE, UPON:
44 (A) THE MORTGAGOR;
45 (B) THE OBLIGOR ON THE NOTE, BOND OR OTHER OBLIGATION, IF OTHER THAN
46 THE MORTGAGOR;
47 (C) THE OWNER OF THE MORTGAGED PROPERTY, IF OTHER THAN THE MORTGAGOR;
48 (D) ANY OTHER PERSON OR ENTITY IN THE MORTGAGE DESIGNATED TO RECEIVE
49 NOTICE;
50 (E) A SUBSEQUENT LIENOR OF THE MORTGAGED PROPERTY THAT THE MORTGAGEE
51 SEEKS TO FORECLOSE WHOSE INTEREST WAS RECORDED OR DOCKETED IN THE PROPER
52 OFFICE FOR RECORDING OR FILING IN THE COUNTY IN WHICH THE MORTGAGED
53 PROPERTY IS LOCATED AT THE TIME OF THE FILING OF THE NOTICE OF PENDENCY;
54 (F) ANY PERSON HAVING A LIEN UPON OR INTEREST IN THE MORTGAGED PROPER-
55 TY, OR ANY PART THEREOF, AT THE TIME OF THE FILING OF THE NOTICE OF
56 PENDENCY THAT IS SUBORDINATE TO THE MORTGAGE AND THAT THE MORTGAGEE
A. 8993--A 6
1 SEEKS TO FORECLOSE. AFFIDAVITS OF SERVICE OR MAILING UPON EACH OF THE
2 PERSONS OR ENTITIES ENTITLED TO NOTICE OF THE SALE SHALL BE FILED PRIOR
3 TO THE DATE OF SALE UNDER THE INDEX NUMBER OF THE NON-JUDICIAL PROCEED-
4 ING WITH THE CLERK OF THE COUNTY IN WHICH THE SALE IS TO TAKE PLACE.
5 2. A COPY OF THE NOTICE OF SALE MUST BE PUBLISHED AT LEAST ONCE IN
6 EACH WEEK DURING THE FIVE SUCCESSIVE WEEKS IMMEDIATELY PRECEDING THE
7 DATE OF SALE, OR AT LEAST TWICE IN EACH WEEK DURING THE FOUR SUCCESSIVE
8 WEEKS IMMEDIATELY PRECEDING THE DATE OF SALE, IN A NEWSPAPER OF GENERAL
9 CIRCULATION DISTRIBUTED IN THE COUNTY IN WHICH THE PROPERTY TO BE SOLD,
10 OR ANY PART THEREOF, IS SITUATED, OR IF NO NEWSPAPER IS DISTRIBUTED IN
11 SUCH COUNTY, THEN IN A NEWSPAPER DISTRIBUTED IN AN ADJOINING COUNTY,
12 EXCEPT THAT WHERE SUCH PROPERTY IS LOCATED IN A COUNTY WHOLLY CONTAINED
13 WITHIN A CITY WITH A POPULATION OF ONE MILLION OR MORE, SUCH NOTICE OF
14 SALE SHALL BE PUBLISHED IN THE SAME MANNER AS A NOTICE OF JUDICIAL
15 PROCEEDING IN A NEWSPAPER DISTRIBUTED WITHIN SUCH COUNTY TO BE DESIG-
16 NATED BY THE CLERK OF SUCH COUNTY. ANY PERIOD OF SEVEN SUCCESSIVE DAYS
17 SHALL CONSTITUTE A WEEK UNDER THIS SECTION.
18 3. A COPY OF THE NOTICE OF SALE MUST BE FILED ON OR BEFORE THE DAY OF
19 FIRST PUBLICATION OF THE NOTICE OF SALE WITH THE CLERK OF EACH COUNTY
20 WHEREIN THE MORTGAGED PROPERTY, OR ANY PART THEREOF, IS SITUATED.
21 4. THE PUBLICATION PROVISIONS OF THIS SECTION SHALL BE FOLLOWED IN
22 LIEU OF THE PROVISIONS OF SECTION TWO HUNDRED THIRTY-ONE OF THIS CHAPTER
23 RESPECTING THE PUBLICATION OF A NOTICE OF SALE.
24 S 1406. NOTICE OF SALE; HOW SERVED. SERVICE OF NOTICE OF THE SALE AS
25 PRESCRIBED IN SUBDIVISION ONE OF SECTION FOURTEEN HUNDRED FIVE OF THIS
26 ARTICLE SHALL BE MADE UPON A PERSON OR ENTITY DESCRIBED IN SUBDIVISION
27 ONE OF SECTION FOURTEEN HUNDRED FIVE OF THIS ARTICLE THAT THE MORTGAGEE
28 SEEKS TO FORECLOSE AS FOLLOWS:
29 1. AT LEAST THIRTY DAYS BEFORE THE DATE OF SALE, BY DELIVERING A COPY
30 OF THE NOTICE, IN THE MANNER PRESCRIBED BY ARTICLE THREE OF THE CIVIL
31 PRACTICE LAW AND RULES FOR PERSONAL SERVICE OF A COPY OF A SUMMONS IN A
32 CIVIL ACTION IN A COURT OF RECORD, TO THE PERSON OR ENTITY TO BE SERVED,
33 AND BY MAILING AN ADDITIONAL COPY THEREOF TO SUCH PERSON OR ENTITY BY
34 FIRST CLASS MAIL IN AN ENVELOPE BEARING THE LEGEND "PERSONAL AND CONFI-
35 DENTIAL" AND NOT INDICATING ON THE OUTSIDE THEREOF, BY RETURN ADDRESS OR
36 OTHERWISE, THAT THE COMMUNICATION IS FROM AN ATTORNEY OR CONCERNS AN
37 ACTION OR PROCEEDING AGAINST THE PERSON OR ENTITY TO BE SERVED. IF SUCH
38 PERSON OR ENTITY IS A FOREIGN CORPORATION, OR IS NOT A RESIDENT OF OR
39 WITHIN THE STATE, THEN SERVICE THEREOF MAY BE MADE UPON IT IN LIKE
40 MANNER WITHOUT THE STATE, AT LEAST FORTY DAYS BEFORE THE DATE OF SALE.
41 2. SERVICE OF A COPY OF THE NOTICE OF SALE UPON THE MORTGAGOR, THE
42 MORTGAGOR'S SUCCESSORS OR ASSIGNS, OR A SUBSEQUENT GRANTEE OF THE PROP-
43 ERTY FROM THE MORTGAGOR, IN THE MANNER PRESCRIBED IN THE MORTGAGE SHALL
44 BE GOOD, VALID AND EFFECTIVE SERVICE HEREUNDER.
45 3. SERVICE OF A COPY OF THE NOTICE OF SALE UPON THE UNITED STATES OF
46 AMERICA, ITS AGENCIES OR INSTRUMENTALITIES, SHALL BE IN ACCORDANCE WITH
47 APPLICABLE FEDERAL STATUTE.
48 S 1407. SALE; HOW POSTPONED. 1. THE SALE MAY BE POSTPONED BY THE MORT-
49 GAGEE FOR A PERIOD OF TIME NOT TO EXCEED FIVE WEEKS. NOTICE OF POSTPONE-
50 MENT OF THE SALE SHALL BE PUBLISHED AT LEAST ONCE NOT LESS THAN FIVE
51 DAYS PRIOR TO THE NEW DATE OF THE SALE IN THE NEWSPAPER IN WHICH THE
52 ORIGINAL NOTICE WAS PUBLISHED, AND SHALL BE SERVED IN THE MANNER SET
53 FORTH IN SECTION FOURTEEN HUNDRED SIX OF THIS ARTICLE UPON EACH PERSON
54 UPON WHOM OR ENTITY UPON WHICH THE ORIGINAL NOTICE OF SALE WAS SERVED.
55 2. THE SALE MAY ALSO BE POSTPONED IF THE PERSON DESIGNATED TO CONDUCT
56 THE SALE DOES NOT APPEAR ON THE DATE SCHEDULED FOR THE SALE, IN WHICH
A. 8993--A 7
1 CASE NOTICE OF THE ADJOURNED DATE SHALL BE PUBLISHED AND SERVED AS
2 PROVIDED IN SUBDIVISION ONE OF THIS SECTION.
3 3. IF THE SALE IS STAYED BY APPLICATION OF ANY OTHER LAW, THEN AT SUCH
4 TIME AS THE STAY SHALL BE VACATED OR LIFTED, AN ADJOURNED SALE MAY BE
5 SCHEDULED BY THE MORTGAGEE AND PUBLICATION OF THE NOTICE OF SALE SHALL
6 BE MADE AS PRESCRIBED IN SUBDIVISION TWO OF SECTION FOURTEEN HUNDRED
7 FIVE OF THIS ARTICLE.
8 4. THE SALE MAY BE POSTPONED BY THE MORTGAGEE MORE THAN ONCE. THE
9 MANNER OF THE POSTPONEMENT AND THE PUBLICATION AND SERVICE OF NOTICE
10 THEREOF SHALL BE EFFECTED IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVI-
11 SION ONE OF THIS SECTION.
12 S 1408. SALE; HOW CONDUCTED. 1. THE SALE SHALL BE AT PUBLIC AUCTION BY
13 A LICENSED AUCTIONEER, SHERIFF, MARSHAL, OR COURT APPOINTED OFFICIAL FOR
14 SUCH PURPOSE, DURING REASONABLE BUSINESS HOURS, ON A DAY OTHER THAN
15 SATURDAY, SUNDAY OR A PUBLIC HOLIDAY, IN THE COUNTY IN WHICH THE MORT-
16 GAGED PROPERTY, OR A PART THEREOF, IS SITUATED, AT ANY COURTHOUSE
17 LOCATED IN THE COUNTY, OR IF IN A COUNTY WITHIN THE CITY OF NEW YORK, AT
18 THE COURTHOUSE OF THE SUPREME COURT IN SUCH COUNTY.
19 2. IF PUBLICATION OF THE NOTICE OF SALE IS FOR FOUR WEEKS, SUCH SALE
20 SHALL TAKE PLACE ON ANY DAY ON OR AFTER THE FORTY-THIRD DAY AND ON OR
21 BEFORE THE FIFTIETH DAY AFTER THE DAY OF THE FIRST PUBLICATION; AND IF
22 PUBLICATION OF THE NOTICE OF SALE IS FOR FIVE WEEKS, SUCH SALE SHALL
23 TAKE PLACE ON ANY DAY ON OR AFTER THE FIFTIETH DAY AND ON OR BEFORE THE
24 FIFTY-SEVENTH DAY AFTER THE DAY OF THE FIRST PUBLICATION. ANY PERIOD OF
25 SEVEN SUCCESSIVE DAYS SHALL CONSTITUTE A WEEK UNDER THIS SECTION.
26 3. THE PERSON CONDUCTING THE SALE SHALL ANNOUNCE THE TERMS THEREOF AT
27 THE OUTSET OF THE AUCTION. A COPY OF THE TERMS OF SALE SHALL BE MADE
28 AVAILABLE BY THE MORTGAGEE OR PERSON CONDUCTING THE SALE AT OR PRIOR
29 THERETO.
30 4. ON ACCEPTANCE OF A BID AT THE SALE, THE BIDDER, OTHER THAN THE
31 MORTGAGEE, SHALL DEPOSIT WITH THE PERSON CONDUCTING THE SALE AT LEAST
32 TEN PERCENT OF THE BID PRICE IN CASH, CERTIFIED CHECK OR A BANK CHECK
33 DRAWN ON A BANK, TRUST COMPANY, SAVINGS BANK OR SAVINGS AND LOAN ASSOCI-
34 ATION HAVING OFFICES IN THIS STATE. A MEMORANDUM OF THE SALE, WHICH
35 SHALL INCORPORATE THE TERMS OF THE SALE, SHALL BE EXECUTED BY THE PERSON
36 CONDUCTING THE SALE AND THE SUCCESSFUL BIDDER THEREAT, INCLUDING THE
37 FORECLOSING MORTGAGEE. THE MEMORANDUM SHALL STATE THE IDENTITY OF THE
38 PURCHASER, THE AMOUNT OF THE SUCCESSFUL BID, THE AMOUNT OF THE DEPOSIT
39 (WHICH, PENDING THE CONVEYANCE OF TITLE, SHALL BE RETAINED BY THE PERSON
40 CONDUCTING THE SALE IN A SEPARATE ACCOUNT IN A COMMERCIAL BANK OR
41 SAVINGS BANK LOCATED IN THE STATE OF NEW YORK), THE DATE, TIME AND PLACE
42 OF CLOSING OF TITLE AND THAT THE TERMS OF THE SALE ARE INCORPORATED
43 THEREIN. THE MEMORANDUM OF SALE SHALL NOT BE AMENDED OR MODIFIED.
44 5. IF THE SUCCESSFUL BIDDER FAILS TO MAKE THE DEPOSIT ON ACCEPTANCE,
45 OR TO COMPLETE THE TRANSACTION WITHIN THIRTY DAYS AFTER ACCEPTANCE, THE
46 MORTGAGEE MAY RESELL THE MORTGAGED PROPERTY. THE BIDDER'S DEPOSIT MAY BE
47 RETAINED OR RECOVERED BY THE MORTGAGEE AS LIQUIDATED DAMAGES REGARDLESS
48 OF THE AMOUNT BID AND PAID ON THE RESALE OF THE MORTGAGED PROPERTY.
49 6. IF THE MORTGAGED PROPERTY CONSISTS OF TWO OR MORE DISTINCT PARCELS,
50 THEY SHALL BE SOLD SEPARATELY IN THE ORDER SPECIFIED IN THE NOTICE OF
51 SALE UNLESS OTHERWISE PROVIDED IN THE MORTGAGE OR ANY INSTRUMENT EXTEND-
52 ING, AMENDING OR MODIFYING THE MORTGAGE. AS MANY OF THE PARCELS SHALL BE
53 SOLD AS IT IS NECESSARY TO SELL IN ORDER TO SATISFY THE AMOUNT DUE AT
54 THE TIME OF THE SALE, AND THE COSTS AND EXPENSES ALLOWED BY SECTION
55 FOURTEEN HUNDRED SEVENTEEN OF THIS ARTICLE. WHERE TWO OR MORE BUILDINGS
A. 8993--A 8
1 ARE SITUATED IN THE SAME CITY LOT OR LOCAL TAX LOT, THEY SHALL BE SOLD
2 TOGETHER.
3 S 1409. MORTGAGEE OR SUCCESSOR IN INTEREST MAY PURCHASE. THE MORTGA-
4 GEE, OR ITS ASSIGNEE, OR THE LEGAL REPRESENTATIVE OF EITHER, MAY
5 PURCHASE THE MORTGAGED PROPERTY, OR ANY PART THEREOF, AT THE SALE AND
6 SHALL BE ENTITLED TO BID. UPON ANY SUCH BID UP TO THE FULL AMOUNT OF THE
7 INDEBTEDNESS SECURED BY THE MORTGAGE, INCLUDING UNPAID INTEREST, LATE
8 CHARGES, COSTS OF SALE, REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS,
9 AND ADVANCES MADE TO PROTECT THE LIEN OF THE MORTGAGE, THE MORTGAGEE, OR
10 ITS ASSIGNEE, OR THE LEGAL REPRESENTATIVE OF EITHER, SHALL NOT BE
11 REQUIRED TO MAKE ANY DEPOSIT AT THE SALE OR ANY PAYMENT OF THE AMOUNT OF
12 THE SUCCESSFUL BID UP TO THE FULL AMOUNT OF THE INDEBTEDNESS SECURED BY
13 THE MORTGAGE, UPON THE DELIVERY OF THE POWER OF SALE DEED.
14 S 1410. RIGHT TO REDEEM OF MORTGAGOR, SUBORDINATE LIENOR, OR HOLDER OF
15 SUBORDINATE INTERESTS. 1. AT ANY TIME BEFORE THE COMMENCEMENT OF THE
16 BIDDING AT THE SALE, THE MORTGAGOR, OR THE RECORD OWNER OF THE MORTGAGED
17 PROPERTY, OR THE HOLDER OF ANY SUBORDINATE SECURITY INTEREST IN OR OTHER
18 LIEN UPON THE MORTGAGED PROPERTY, MAY PREVENT THE SALE BY PAYMENT TO THE
19 MORTGAGEE, IN GOOD FUNDS, OF ALL SUMS DUE UNDER THE MORTGAGE, OR THE
20 NOTE, BOND OR OTHER OBLIGATION SECURED THEREBY, TOGETHER WITH ACCRUED
21 INTEREST THEREON, AND ALL OTHER SUMS DUE THEREUNDER, INCLUDING THE COSTS
22 OF SALE AND REASONABLE ATTORNEYS' FEES. AS BETWEEN OR AMONG HOLDERS OF
23 SECURITY INTERESTS, THE TENDER OF REDEMPTION BY THE HOLDER ENTITLED TO
24 PRIORITY PREVAILS OVER THE TENDER OF REDEMPTION BY THE HOLDER OF A
25 SUBORDINATE INTEREST.
26 2. IF A MORTGAGOR, RECORD OWNER, OR HOLDER OF ANY SUBORDINATE SECURITY
27 INTEREST IN OR OTHER LIEN UPON THE MORTGAGED PROPERTY IS ENTITLED TO
28 REDEEM UNDER THIS SECTION, THE MORTGAGOR, RECORD OWNER, OR THE HOLDER OF
29 ANY SUBORDINATE SECURITY INTEREST OR LIEN, MAY, UPON SUCH REDEMPTION,
30 REQUIRE THE MORTGAGEE, UPON FULL PAYMENT OF THE OBLIGATION, IN LIEU OF
31 THE CERTIFICATE OF DISCHARGE UNDER SECTION TWO HUNDRED SEVENTY-FIVE OF
32 THE REAL PROPERTY LAW, TO ASSIGN THE DEBT AND THE MORTGAGE WITHOUT
33 RECOURSE OR WARRANTY TO ANY PERSON OR ENTITY DESIGNATED BY THE PAYOR
34 PROVIDED THAT SUCH PERSON OR ENTITY IS NOT THE MORTGAGOR OR A PERSON OR
35 ENTITY ACTING AS A NOMINEE OF THE MORTGAGOR, AND THE MORTGAGEE IS OBLI-
36 GATED TO DO SO, PROVIDED THE PAYOR EXECUTES THE AFFIDAVIT REQUIRED UNDER
37 SECTION TWO HUNDRED SEVENTY-FIVE OF THE REAL PROPERTY LAW. THE RIGHTS
38 UNDER THIS SUBDIVISION MAY BE ENFORCED BY THE HOLDER OF ANY SUBORDINATE
39 SECURITY INTEREST IN OR LIEN UPON THE MORTGAGED PROPERTY EVEN THOUGH IT
40 IS A SUBORDINATE SECURITY INTEREST OR LIEN. THE ASSIGNMENT OF THE MORT-
41 GAGE, AND THE INDEBTEDNESS SECURED THEREBY, SHALL BE DEEMED TO BE AN
42 ASSIGNMENT OF A BONA FIDE OBLIGATION WITHIN THE MEANING OF SECTION TWO
43 HUNDRED SEVENTY-FIVE OF THE REAL PROPERTY LAW.
44 S 1411. EFFECT OF SALE. 1. A SALE, MADE AND CONDUCTED AS PRESCRIBED IN
45 THIS ARTICLE, TO A PURCHASER, INCLUDING THE MORTGAGEE OR THE PERSON TO
46 WHOM OR ENTITY TO WHICH THE PURCHASER OR THE MORTGAGEE ASSIGNS THE TERMS
47 OF SALE AND MEMORANDUM OF SALE BY ASSIGNMENT DULY EXECUTED AND RECORDED,
48 IS EQUIVALENT TO A SALE PURSUANT TO JUDGMENT IN AN ACTION TO FORECLOSE
49 THE MORTGAGE UNDER ARTICLE THIRTEEN OF THIS CHAPTER, AND EXCEPT AS
50 RESPECTS THE INTEREST OF THE UNITED STATES OF AMERICA, WHICH SHALL BE
51 FORECLOSED AS PROVIDED IN SUBDIVISION FOUR OF THIS SECTION, IMMEDIATELY
52 UPON THE EXECUTION OF THE MEMORANDUM OF SALE OF THE PERSON CONDUCTING
53 THE AUCTION, SHALL BAR ANY CLAIM OR EQUITY OF REDEMPTION, UPON, OR WITH
54 RESPECT TO, THE PROPERTY SOLD, OF EACH OF THE FOLLOWING PERSONS OR ENTI-
55 TIES:
A. 8993--A 9
1 (A) THE MORTGAGOR, OR THE MORTGAGOR'S HEIRS, DEVISEES, EXECUTORS,
2 ADMINISTRATORS, SUCCESSORS OR ASSIGNS;
3 (B) EACH PERSON CLAIMING UNDER ANY OF THEM, BY VIRTUE OF A TITLE,
4 LIEN, TENANCY, INTEREST, ENCUMBRANCE, JUDGMENT OR DECREE, SUBSEQUENT TO
5 THE MORTGAGE, UPON WHOM THE NOTICE OF SALE WAS SERVED, AS PRESCRIBED IN
6 THIS ARTICLE;
7 (C) EACH PERSON SO CLAIMING, WHOSE ASSIGNMENT, MORTGAGE, CONVEYANCE,
8 TENANCY, OR OTHER INTEREST WAS NOT DULY RECORDED IN THE PROPER BOOK OR
9 INDEX FOR RECORDING THE SAME IN THE COUNTY IN WHICH THE PROPERTY IS
10 SITUATED, OR WHOSE JUDGMENT OR DECREE WAS NOT DULY DOCKETED IN THE COUN-
11 TY CLERK'S OFFICE, AT THE TIME OF THE FILING OF THE NOTICE OF PENDENCY
12 OF THE SALE PURSUANT TO THIS ARTICLE, AND THE EXECUTOR, ADMINISTRATOR,
13 SUCCESSOR OR ASSIGNEE OF SUCH A PERSON;
14 (D) EVERY OTHER PERSON, CLAIMING UNDER A STATUTORY LIEN OR ENCUM-
15 BRANCE, CREATED, RECORDED OR FILED SUBSEQUENT TO THE FILING OF THE
16 NOTICE OF PENDENCY, ATTACHING TO THE TITLE OR INTEREST OF ANY PERSON,
17 DESIGNATED IN ANY OF THE FOREGOING SUBDIVISIONS OF THIS SECTION.
18 2. NOTHING IN THIS ARTICLE SHALL BAR OR FORECLOSE ANY CLAIM UPON OR
19 INTEREST IN THE MORTGAGED PROPERTY SOLD OF ANY PERSON OR ENTITY WHOSE
20 INTEREST IN OR LIEN UPON THE MORTGAGED PROPERTY AROSE PRIOR TO THE
21 FILING OF THE NOTICE OF PENDENCY AND WHO HAS NOT BEEN SERVED WITH A COPY
22 OF THE NOTICE OF SALE IN THE MANNER PRESCRIBED IN THIS ARTICLE.
23 3. A CONVEYANCE MADE IN ACCORDANCE WITH SECTION FOURTEEN HUNDRED
24 TWELVE OF THIS ARTICLE TO A PURCHASER AT THE FORECLOSURE SALE, INCLUDING
25 THE MORTGAGEE, IS NOT A FRAUDULENT TRANSFER BY REASON OF THE VALUE GIVEN
26 BEING LESS THAN THE VALUE OF THE MORTGAGOR'S INTEREST IN THE MORTGAGED
27 PROPERTY.
28 4. WHERE THE UNITED STATES OF AMERICA, OR ANY OF ITS AGENCIES OR
29 INSTRUMENTALITIES, HAS A SUBORDINATE LIEN OR INTEREST OF RECORD IN THE
30 MORTGAGED PROPERTY AND IS ENTITLED TO NOTICE, THE MORTGAGEE SHALL OBTAIN
31 AN ORDER FROM THE SUPREME COURT IN THE COUNTY IN WHICH THE SALE IS TO
32 TAKE PLACE, AFTER THE TIME FOR THE UNITED STATES OF AMERICA TO APPEAR
33 HAS EXPIRED, FORECLOSING THE LIEN OR INTEREST OF THE UNITED STATES. UPON
34 SUCH ORDER, THE SALE SHALL BE DEEMED TO BE A JUDICIAL SALE FORECLOSING
35 THE LIEN OR INTEREST OF THE UNITED STATES OF AMERICA SUBJECT TO THE
36 RIGHTS OF THE UNITED STATES OF AMERICA PURSUANT TO APPLICABLE STATUTES.
37 5. AT ANY TIME WITHIN ONE YEAR AFTER THE RECORDING OF THE DEED
38 EXECUTED AND DELIVERED PURSUANT TO SECTION FOURTEEN HUNDRED TWELVE OF
39 THIS ARTICLE, BUT NOT THEREAFTER, A COURT, UPON SUCH TERMS AS MAY BE
40 JUST, BUT NOT INCONSISTENT WITH OTHER PROVISIONS OF THIS ARTICLE, MAY
41 SET ASIDE THE SALE FOR FAILURE SUBSTANTIALLY TO COMPLY WITH THE REQUIRE-
42 MENTS HEREIN SET FORTH AS TO NOTICE, TIME, MANNER AND PUBLICATION OF
43 SUCH SALE UPON A FINDING THAT THE FAILURE PREJUDICED A SUBSTANTIAL RIGHT
44 OF ANY PERSON OR ENTITY DESCRIBED IN SUBDIVISIONS ONE, TWO AND FOUR OF
45 THIS SECTION. IN THE EVENT THE SALE HAS BEEN MADE TO A BONA FIDE
46 PURCHASER OTHER THAN THE MORTGAGEE OR THE MORTGAGEE'S NOMINEE OR ASSIG-
47 NEE WITHOUT NOTICE OF ANY IRREGULARITY OF THE SALE, THE SALE SHALL NOT
48 BE SET ASIDE UNLESS THERE SHALL BE A RESTITUTION TO SUCH PURCHASER OF
49 THE PURCHASE PRICE PAID.
50 S 1412. CONVEYANCE. 1. THE PERSON AUTHORIZED TO CONDUCT THE SALE
51 PURSUANT TO SUBDIVISION ONE OF SECTION FOURTEEN HUNDRED EIGHT OF THIS
52 ARTICLE SHALL, AT THE CLOSING OF TITLE HELD IN ACCORDANCE WITH THE TERMS
53 OF SALE, EXECUTE AND DELIVER A DEED TO THE PURCHASER IN THE FOLLOWING
54 FORM:
55 POWER OF SALE DEED
A. 8993--A 10
1 THIS DEED, MADE AS OF THE _______ DAY OF ___________, _____, BETWEEN
2 ______________, IN THE CAPACITY OF AUCTIONEER/SHERIFF/MARSHAL/REFEREE,
3 HAVING AN OFFICE AT _________, ______________, NEW YORK ("GRANTOR") AND
4 ______________, A ____________ HAVING AN ADDRESS AT
5 ____________________, ______________, _____________ ("GRANTEE"),
6 WITNESSETH:
7 THAT __________________("MORTGAGEE"), THE OWNER AND HOLDER OF THE MORT-
8 GAGE DESCRIBED IN EXHIBIT A ATTACHED HERETO ENCUMBERING THE PROPERTY
9 DESCRIBED HEREINBELOW (THE "PROPERTY"), AND THE NOTE, BOND OR OTHER
10 OBLIGATION SECURED THEREBY, HAS FORECLOSED THE LIEN OF SAID MORTGAGE
11 PURSUANT TO ARTICLE FOURTEEN OF THE REAL PROPERTY ACTIONS AND
12 PROCEEDINGS LAW OF THE STATE OF NEW YORK;
13 THAT GRANTOR HAS BEEN DESIGNATED BY MORTGAGEE OR BY THE COURT IN THE
14 COUNTY IN WHICH THE SALE HAS TAKEN PLACE TO CONDUCT THE SALE OF THE
15 PROPERTY;
16 THAT THE SALE WAS DULY HELD ON _______________ ___, ____, AND THE MEMO-
17 RANDUM OF SALE ATTACHED HERETO AS EXHIBIT B WAS EXECUTED AT THE CONCLU-
18 SION OF THE SALE;
19 AND THAT PURSUANT THERETO AND IN CONSIDERATION OF ___________DOLLARS
20 ($_____________) PAID BY GRANTEE, BEING THE HIGHEST SUM BID AT THE SALE,
21 GRANTOR DOES HEREBY GRANT AND CONVEY TO GRANTEE:
22 (LAND DESCRIPTION OF THE PROPERTY)
23 TOGETHER WITH ALL RIGHT, TITLE AND INTEREST, IF ANY, OF THE GRANTOR IN
24 AND TO ANY STREETS AND ROADS ABUTTING THE ABOVE-DESCRIBED PREMISES TO
25 THE CENTER LINES THEREOF; TOGETHER WITH THE APPURTENANCES AND ALL THE
26 ESTATE AND RIGHTS OF THE GRANTOR IN AND TO SAID PREMISES; TO HAVE AND TO
27 HOLD THE PREMISES HEREIN GRANTED TO THE GRANTEE, THE HEIRS OR SUCCESSORS
28 AND ASSIGNS OF THE GRANTEE FOREVER.
29 IN WITNESS WHEREOF, GRANTOR HAS HEREUNTO SET THE GRANTOR'S HAND AND SEAL
30 THE DATE FIRST ABOVE WRITTEN.
31 ________________
32 (ACKNOWLEDGEMENT)
33 2. BEFORE THE DEED IS EXECUTED AND DELIVERED TO THE PURCHASER, THE
34 MORTGAGEE SHALL FILE THE MORTGAGE AND ANY ASSIGNMENT NOT SHOWN TO HAVE
35 BEEN LOST OR DESTROYED IN THE OFFICE OF THE CLERK, UNLESS IT IS IN A
36 FORM WHICH CAN BE RECORDED; IN WHICH CASE IT SHALL BE RECORDED IN THE
37 COUNTY OR COUNTIES WHERE THE MORTGAGED PROPERTY OR PROPERTIES ARE SITU-
38 ATED; THE EXPENSE OF FILING OR RECORDING AND ENTRY SHALL BE ALLOWED IN
39 THE COSTS TO BE RECOVERED BY THE MORTGAGEE PURSUANT TO THIS ARTICLE;
40 AND, IF FILED WITH THE CLERK, HE SHALL ENTER IN THE MINUTES THE TIME OF
41 FILING.
42 3. THE PURCHASER OF THE MORTGAGED PROPERTY, UPON A SALE CONDUCTED AS
43 PRESCRIBED IN THIS ARTICLE, THEREUPON OBTAINS MARKETABLE TITLE THERETO,
44 IN THE SAME MANNER AS A PURCHASER IN A JUDICIAL FORECLOSURE SALE PURSU-
45 ANT TO ARTICLE THIRTEEN OF THIS CHAPTER AGAINST ALL PERSONS BOUND BY THE
46 SALE.
47 S 1413. DISTRIBUTION OF PROCEEDS OF SALE. 1. THE PROCEEDS OF THE SALE
48 SHALL BE DISTRIBUTED AND PAID BY THE PERSON CONDUCTING THE SALE IN THE
49 FOLLOWING ORDER:
50 (A) ALL TAXES, WATER RATES, SEWER RENTS AND ASSESSMENTS THAT ARE LIENS
51 UPON THE REAL PROPERTY SOLD, AND ANY LIENS OR ENCUMBRANCES PLACED BY A
52 CITY AGENCY OR A MUNICIPALITY UPON THE REAL PROPERTY THAT HAVE PRIORITY
53 OVER THE FORECLOSED MORTGAGE.
54 (B) THE COSTS AND EXPENSES OF THE SALE, PURSUANT TO SECTION FOURTEEN
55 HUNDRED SEVENTEEN OF THIS ARTICLE.
A. 8993--A 11
1 (C) TO THE MORTGAGEE, THE AMOUNT OF THE DEBT, ACCRUED INTEREST THERE-
2 ON, LATE CHARGES, AND ALL OTHER SUMS ADVANCED BY THE MORTGAGEE WHICH ARE
3 RECOVERABLE UNDER THE MORTGAGE, INCLUDING THE COSTS OF SALE AND REASON-
4 ABLE ATTORNEYS' FEES AND DISBURSEMENTS, OR SO MUCH THEREOF AS THE
5 PROCEEDS WILL PAY. THE PERSON CONDUCTING THE SALE SHALL TAKE THE AFFIDA-
6 VIT OF THE MORTGAGEE AS TO ALL OF THE FOREGOING AMOUNTS BEING DUE, AND
7 THE RECEIPT OF THE MORTGAGEE FOR THE AMOUNT SO PAID, AND FILE THE SAME
8 WITH THE REPORT OF SALE.
9 (D) UPON ENTRY OF AN ORDER PURSUANT TO SECTION FOURTEEN HUNDRED EIGH-
10 TEEN OF THIS ARTICLE PROVIDING FOR SAME, TO THE HOLDER OF ANY SUBORDI-
11 NATE MORTGAGE OR LIEN, OR TO THE OWNER OF THE EQUITY OF REDEMPTION OR
12 ANY PERSON OR ENTITY HAVING FILED A NOTICE OF CLAIM AGAINST THE PROPER-
13 TY, FROM THE THEN REMAINING PROCEEDS THE AMOUNT THEN DUE TO SUCH PERSON
14 OR ENTITY, IN THE PRIORITY THEREOF, OR SO MUCH AS THE THEN REMAINING
15 PROCEEDS WILL PAY.
16 2. ALL SURPLUS MONEYS ARISING FROM THE SALE AFTER PAYMENT OF THE
17 AMOUNTS DUE UNDER PARAGRAPHS (A), (B) AND (C) OF SUBDIVISION ONE OF THIS
18 SECTION SHALL BE PAID TO THE COUNTY TREASURER FOR THE COUNTY IN WHICH
19 THE SALE TOOK PLACE BY THE PERSON CONDUCTING THE SALE WITHIN FIVE DAYS
20 AFTER THE SAME SHALL BE RECEIVED, IN LIKE MANNER AND WITH LIKE EFFECT AS
21 IF THE PROCEEDING TO FORECLOSE THE MORTGAGE OCCURRED PURSUANT TO ARTICLE
22 THIRTEEN OF THIS CHAPTER.
23 S 1414. REPORT OF SALE. 1. WITHIN FIFTEEN DAYS AFTER COMPLETING THE
24 SALE AND EXECUTING THE PROPER CONVEYANCE TO THE PURCHASER, THE PERSON
25 CONDUCTING THE SALE SHALL MAKE A REPORT OF THE SALE, WHICH SHALL STATE:
26 (A) THE TIME WHEN AND THE PLACE WHERE THE SALE WAS MADE;
27 (B) THE SUM BID FOR EACH DISTINCT PARCEL SEPARATELY SOLD;
28 (C) THE NAME OF THE PURCHASER OF EACH DISTINCT PARCEL; AND
29 (D) THE NAME OF EACH PERSON OR ENTITY, COURT OFFICER OR OTHER OFFICER,
30 TO WHOM PROCEEDS OF THE SALE WAS PAID, AND THE SUM THEREOF.
31 2. THE REPORT OF SALE SHALL CONTAIN:
32 (A) AFFIDAVIT OF THE PUBLICATION OF THE NOTICE OF SALE, AND OF THE
33 NOTICE OR NOTICES OF POSTPONEMENT, IF ANY, BY THE PUBLISHER OR PRINTER
34 OF THE NEWSPAPER IN WHICH THEY WERE PUBLISHED, OR BY THE PUBLISHER'S
35 FOREMAN OR PRINCIPAL CLERK;
36 (B) COPIES OF THE AFFIDAVIT OR AFFIDAVITS, OF THE SERVICE OF COPIES OF
37 THE NOTICE OF INTENTION TO FORECLOSE AND THE NOTICE OF PENDENCY THERETO-
38 FORE FILED WITH THE CLERK OF THE COURT; AND
39 (C) THE TERMS OF SALE AND EXECUTED MEMORANDUM OF SALE.
40 3. THE REPORT SHALL SPECIFY THE AMOUNT CLAIMED TO BE DUE BY THE MORT-
41 GAGEE ON THE INDEBTEDNESS SECURED BY THE MORTGAGE, TOGETHER WITH ALL
42 OTHER SUMS RECOVERABLE UNDER SECTION FOURTEEN HUNDRED SEVENTEEN OF THIS
43 ARTICLE, THE AMOUNT DISTRIBUTED BY THE PERSON CONDUCTING THE SALE PURSU-
44 ANT TO SECTION FOURTEEN HUNDRED THIRTEEN OF THIS ARTICLE, AND TO WHOM,
45 AND THE AMOUNT OF THE DEFICIENCY OR SURPLUS AFTER APPLICATION OF THE
46 PROCEEDS OF SALE THERETO. THE REPORT SHALL CONTAIN THE MORTGAGEE'S AFFI-
47 DAVIT SPECIFYING THE AMOUNT CLAIMED DUE BY THE MORTGAGEE ON THE INDEBT-
48 EDNESS SECURED BY THE MORTGAGE, TOGETHER WITH ALL OTHER SUMS RECOVERABLE
49 UNDER SECTION FOURTEEN HUNDRED SEVENTEEN OF THIS ARTICLE.
50 4. THE MATTERS REQUIRED TO BE CONTAINED IN ANY OR ALL OF THE AFFIDA-
51 VITS SPECIFIED HEREIN MAY BE CONTAINED IN ONE AFFIDAVIT, WHERE THE SAME
52 PERSON DEPOSES WITH RESPECT TO THEM. A COPY OF THE NOTICE OF SALE SHALL
53 BE ANNEXED TO EACH AFFIDAVIT.
54 S 1415. FILING OF REPORT OF SALE. 1. THE REPORT AND AFFIDAVITS SPECI-
55 FIED IN SECTION FOURTEEN HUNDRED FOURTEEN OF THIS ARTICLE SHALL BE
56 FILED, IN THE SAME MANNER AS THE FILING OF THE NOTICE OF PENDENCY PURSU-
A. 8993--A 12
1 ANT TO SUBDIVISION TWO OF SECTION FOURTEEN HUNDRED THREE OF THIS ARTI-
2 CLE, IN THE COUNTY CLERK'S OFFICE IN THE COUNTY WHERE THE SALE TOOK
3 PLACE WITHIN THIRTY DAYS AFTER THE COMPLETION OF THE SALE AND EXECUTION
4 OF THE PROPER CONVEYANCE TO THE PURCHASER, AND, AS SUCH, CONSTITUTE
5 PRESUMPTIVE EVIDENCE OF THE MATTERS OF FACT THEREIN STATED, WITH RESPECT
6 TO ANY MORTGAGED PROPERTY SOLD WHICH IS SITUATED IN THAT COUNTY.
7 2. EACH COUNTY CLERK IN THIS STATE IN WHOSE OFFICE REPORTS OF THE
8 FORECLOSURE OF MORTGAGES BY POWER OF SALE HAVE BEEN OR SHALL BE FILED
9 PURSUANT TO THE PROVISIONS OF THE FOREGOING SUBDIVISION OF THIS SECTION,
10 IS HEREBY AUTHORIZED TO DELIVER CERTIFIED COPIES OF THE SAME TO THE
11 PURCHASER OF THE MORTGAGED PROPERTY ON THE FORECLOSURE SALE OR TO ANY
12 MORTGAGOR, OBLIGOR ON THE NOTE OR BOND, OWNER OF, OR ANY OTHER PERSON OR
13 ENTITY HAVING A SUBORDINATE INTEREST IN OR LIEN UPON, THE MORTGAGED
14 PROPERTY WHICH WAS FORECLOSED BY THE SALE, UPON REQUEST THEREFOR.
15 S 1416. MULTIPLE COLLATERAL; DESIGNATION OF ORDER OF SALE OF PARCELS.
16 WHERE THE INDEBTEDNESS IS SECURED BY MORE THAN ONE MORTGAGE ON MORTGAGED
17 PROPERTY CONSISTING OF MORE THAN ONE FUNCTIONALLY SEPARATE AND DISTINCT
18 PROPERTY, UNLESS OTHERWISE PROVIDED IN THE MORTGAGE OR IN ANY EXTENSION,
19 AMENDMENT OR MODIFICATION THEREOF OR INSTRUMENT AMENDATORY THERETO, EACH
20 PROPERTY SHALL BE SOLD EITHER (A) SEPARATELY IN THE ORDER DESIGNATED BY
21 THE MORTGAGEE (WHICH MAY BE ON A SINGLE SALE DATE, OR ON SEPARATE DATES
22 AS PROVIDED IN THE NOTICE OF SALE), OR (B) AS OTHERWISE DIRECTED BY
23 ORDER OF THE SUPREME COURT FOR THE COUNTY IN WHICH THE SALE IS TO TAKE
24 PLACE, PURSUANT TO A MOTION MADE UNDER THE INDEX NUMBER OF THE NON-JUDI-
25 CIAL PROCEEDING FOR FORECLOSURE OF POWER OF SALE. THE MORTGAGEE SHALL
26 NOT SCHEDULE OR CONDUCT THE SALE OF THE SUBSEQUENT PROPERTY SO DESIG-
27 NATED UNTIL AFTER THE DEFICIENCY HAS BEEN DETERMINED IN ACCORDANCE WITH
28 SECTION FOURTEEN HUNDRED NINETEEN OF THIS ARTICLE, WHEREUPON IN THE
29 EVENT A DEFICIENCY EXISTS, THE MORTGAGEE MAY SCHEDULE AND CONDUCT THE
30 SALE OF THE SUBSEQUENT PROPERTY IN THE ORDER DESIGNATED BY THE MORTGAGEE
31 UNLESS THE COURT ORDERS OTHERWISE, SUCH SALE TO BE CONDUCTED IN ACCORD-
32 ANCE WITH THE PROVISIONS OF THIS ARTICLE.
33 S 1417. COSTS AND EXPENSES ALLOWED. THE MORTGAGEE SHALL BE ENTITLED TO
34 RECOVER OUT OF THE PROCEEDS OF SALE, OR UPON APPLICATION FOR A DEFICIEN-
35 CY JUDGMENT, THE COSTS AND EXPENSES OF: (A) ADVERTISEMENT OF THE NOTICE
36 OF SALE, AS DETERMINED BY PAID RECEIPTS THEREFOR; (B) SERVICE OF THE
37 NOTICE OF INTENTION TO FORECLOSE AND THE NOTICE OF SALE; (C) PREPARATION
38 AND FILING OF THE AFFIDAVITS REQUIRED UNDER THIS ARTICLE, THE POWER OF
39 SALE DEED, AND REPORT OF SALE; (D) THE CONDUCT OF THE SALE, INCLUDING
40 THE FEE OF THE OFFICER CONDUCTING THE SALE, WHICH, EXCEPT AS SHALL BE
41 DIRECTED BY THE COURT, SHALL NOT EXCEED ONE THOUSAND DOLLARS; (E)
42 RECORDING OF THE DEED IF THE MORTGAGEE IS THE PURCHASER AT THE SALE; (F)
43 FILING OR RECORDING THE MORTGAGE IF NOT THERETOFORE PAID FOR BY THE
44 MORTGAGOR; AND (G) THE REASONABLE ATTORNEYS' FEES INCURRED IN CONNECTION
45 WITH THE NON-JUDICIAL PROCEEDING UNDER THIS ARTICLE WHICH, EXCEPT AS
46 SHALL BE DIRECTED BY THE COURT, SHALL NOT EXCEED THE SUM OF THIRTY-FIVE
47 HUNDRED DOLLARS.
48 S 1418. APPLICATION FOR SURPLUS. 1. ANY PERSON OR ENTITY CLAIMING THE
49 SURPLUS MONEYS ARISING FROM THE SALE OF THE MORTGAGED PROPERTY, OR A
50 PART THEREOF, MAY, WITHIN TWENTY DAYS AFTER THE FILING OF THE REPORT OF
51 THE SALE, FILE UNDER THE INDEX NUMBER ASSIGNED TO THE NON-JUDICIAL
52 PROCEEDING IN THE OFFICE OF THE CLERK OF THE COUNTY WHERE THE SALE TOOK
53 PLACE, A WRITTEN NOTICE OF THE CLAIM, STATING THE NATURE AND EXTENT OF
54 THE CLAIM. THEREAFTER, AN APPLICATION, WITH PROOF OF SERVICE UPON THE
55 MORTGAGOR, THE RECORD OWNER OF THE MORTGAGED PROPERTY, AND ANY OTHER
56 PERSON WHO OR ENTITY WHICH HAS FILED A CLAIM TO THE SURPLUS MONEYS MAY
A. 8993--A 13
1 BE MADE BY ANY PERSON WHO OR ENTITY WHICH HAS FILED A CLAIM TO THE
2 SURPLUS MONEYS, SEEKING AN ORDER DIRECTING PAYMENT THEREOF OUT OF THE
3 SURPLUS MONEYS.
4 2. UPON SUCH APPLICATION, OR AT ANY TIME WITHIN THREE MONTHS THEREAFT-
5 ER, ON NOTICE TO ALL PERSONS WHO OR ENTITIES WHICH HAVE BEEN SERVED WITH
6 THE NOTICE OF SALE OR FILED CLAIMS TO THE SURPLUS MONEY, OR ANY PART
7 THEREOF, ON MOTION OF ANY PERSON WHO OR ENTITY WHICH HAS FILED A NOTICE
8 OF CLAIM TO THE SURPLUS MONEY, OR ANY PART THEREOF, THE COURT, BY REFER-
9 ENCE OR OTHERWISE, SHALL ASCERTAIN AND REPORT THE AMOUNT DUE TO THE
10 APPLICANT, OR TO ANY PERSON WHO OR ENTITY WHICH HAS A LIEN ON OR CLAIM
11 TO SUCH SURPLUS MONEY, OR ANY PART THEREOF, AND THE PRIORITY OF THE
12 SEVERAL LIENS OR CLAIMS THEREON, AND SHALL ORDER DISTRIBUTION OF THE
13 SURPLUS MONEYS BY THE COUNTY TREASURER.
14 3. THE OWNER OF THE EQUITY OF REDEMPTION, OR ANY PERSON WHO OR ENTITY
15 WHICH HAS RESPONDED TO THE APPLICATION, OR ANY PERSON WHO OR ENTITY
16 WHICH FILES A NOTICE OF CLAIM OR HAS A RECORDED LIEN AGAINST THE MORT-
17 GAGED PROPERTY SHALL BE GIVEN NOTICE BY MAIL OR IN SUCH OTHER MANNER AS
18 THE COURT SHALL DIRECT, TO ATTEND ANY HEARING ON DISPOSITION OF THE
19 SURPLUS MONEYS AND SHALL HAVE THE RIGHT TO RECEIVE DISTRIBUTION OF THE
20 SURPLUS MONEYS, OR ANY PORTION THEREOF, IN ANY MANNER DIRECTED BY THE
21 COURT.
22 S 1419. DEFICIENCY JUDGMENT. 1. UNLESS OTHERWISE AGREED BY THE MORTGA-
23 GOR AND THE MORTGAGEE IN THE MORTGAGE, A PERSON WHO OR ENTITY WHICH OWES
24 PAYMENT OF AN OBLIGATION SECURED BY THE MORTGAGE FORECLOSED UNDER THIS
25 ARTICLE IS LIABLE FOR THE WHOLE RESIDUE, OR SO MUCH THEREOF AS THE COURT
26 MAY DETERMINE, OF THE DEBT REMAINING UNSATISFIED, AFTER THE SALE OF THE
27 MORTGAGED PROPERTY AND THE APPLICATION OF THE PROCEEDS, THE AMOUNT OF
28 THE DEBT REMAINING UNSATISFIED TO BE DETERMINED BY THE COURT AS HEREIN
29 PROVIDED.
30 2. NOT LATER THAN NINETY DAYS AFTER THE DELIVERY TO THE PURCHASER OF
31 THE POWER OF SALE DEED TO THE MORTGAGED PROPERTY, THE PERSON TO WHOM OR
32 ENTITY TO WHICH SUCH RESIDUE SHALL BE OWING MAY MAKE AN APPLICATION
33 UNDER THE INDEX NUMBER ASSIGNED THE NON-JUDICIAL PROCEEDING, IN THE
34 SUPREME COURT FOR THE COUNTY IN WHICH THE MORTGAGED PROPERTY IS LOCATED,
35 OR IN A COUNTY IN WHICH THE SALE HAS TAKEN PLACE FOR A DEFICIENCY JUDG-
36 MENT AGAINST THE PERSONS OR ENTITIES LIABLE THEREFOR UPON NOTICE TO SUCH
37 PERSONS OR ENTITIES. SUCH NOTICE SHALL BE SERVED PERSONALLY OR IN SUCH
38 OTHER MANNER AS THE COURT MAY DIRECT. UPON SUCH APPLICATION, THE COURT,
39 WHETHER OR NOT THE PERSON OR ENTITY CLAIMED TO BE LIABLE FOR THE RESIDUE
40 APPEARS, SHALL DETERMINE, UPON REASONABLE APPRAISAL BY A REAL ESTATE
41 APPRAISER LICENSED IN THE STATE OF NEW YORK, OR OTHERWISE AS IT SHALL
42 DIRECT, THE FAIR AND REASONABLE MARKET VALUE OF THE MORTGAGED PROPERTY
43 AS OF THE DATE THE MORTGAGED PROPERTY WAS BID ON AT AUCTION OR SUCH
44 NEAREST EARLIER DATE AS THERE SHALL HAVE BEEN ANY MARKET VALUE THEREOF
45 AND SHALL MAKE AN ORDER DIRECTING THE ENTRY OF A DEFICIENCY JUDGMENT
46 AGAINST THE PERSON OR ENTITY LIABLE THEREFOR. SUCH DEFICIENCY JUDGMENT
47 SHALL BE FOR AN AMOUNT EQUAL TO THE AGGREGATE AMOUNT OF THE INDEBTEDNESS
48 DUE TO THE MORTGAGEE, TOGETHER WITH ALL OTHER SUMS RECOVERABLE UNDER
49 SECTION FOURTEEN HUNDRED SEVENTEEN OF THIS ARTICLE AS SUCH SHALL BE SET
50 FORTH IN THE REPORT OF SALE PURSUANT TO SUBDIVISION THREE OF SECTION
51 FOURTEEN HUNDRED FOURTEEN OF THIS ARTICLE LESS THE HIGHER OF: (A) MARKET
52 VALUE OF THE MORTGAGED PROPERTY AS DETERMINED BY THE COURT OR (B) THE
53 SALES PRICE OF THE MORTGAGED PROPERTY AT THE PUBLIC SALE.
54 3. IF NO APPLICATION FOR A DEFICIENCY JUDGMENT SHALL BE MADE AS HEREIN
55 PRESCRIBED, THE PROCEEDS OF THE SALE REGARDLESS OF THE AMOUNT THEREOF
A. 8993--A 14
1 SHALL BE DEEMED TO BE IN FULL SATISFACTION OF THE MORTGAGE DEBT, AND NO
2 RIGHT TO RECOVER ANY DEFICIENCY IN ANY ACTION OR PROCEEDING SHALL EXIST.
3 S 1420. RECEIVER. 1. WHERE THE MORTGAGE PROVIDES THAT THE MORTGAGEE IS
4 ENTITLED TO THE APPOINTMENT OF A RECEIVER FOR THE MORTGAGED PROPERTY,
5 THE MORTGAGEE SHALL HAVE THE RIGHT AT ANY TIME AFTER THE FILING OF THE
6 NOTICE OF PENDENCY PURSUANT TO SECTION FOURTEEN HUNDRED THREE OF THIS
7 ARTICLE TO MAKE AN APPLICATION UNDER THE INDEX NUMBER ASSIGNED TO THE
8 NON-JUDICIAL PROCEEDING, IN THE SUPREME COURT IN THE COUNTY IN WHICH THE
9 SALE TAKES PLACE, FOR THE APPOINTMENT OF A RECEIVER.
10 2. WHERE THE MORTGAGE PROVIDES THAT A RECEIVER MAY BE APPOINTED WITH-
11 OUT NOTICE OR CONTAINS THE COVENANT SET FORTH IN SUBDIVISION TEN OF
12 SECTION TWO HUNDRED FIFTY-FOUR OF THE REAL PROPERTY LAW, NOTICE OF AN
13 APPLICATION FOR SUCH APPOINTMENT SHALL NOT BE REQUIRED AND THE RECEIVER
14 SHALL BE APPOINTED BY THE COURT PURSUANT TO AN ORDER SUBMITTED BY THE
15 MORTGAGEE SIMULTANEOUSLY WITH, OR AT ANY TIME AFTER, THE FILING OF THE
16 APPLICATION THEREFOR.
17 3. WHERE A RECEIVER HAS BEEN APPOINTED, UPON THE APPLICATION OF THE
18 MORTGAGEE, THE COURT MAY DIRECT THAT THE RECEIVER OF THE RENTS APPLY THE
19 RENTS RECEIVED BY THE RECEIVER TOWARDS THE PAYMENT OF ACCRUED INTEREST
20 ON THE MORTGAGE, PROVIDED DUE PROVISION SHALL HAVE BEEN MADE FOR THE
21 PAYMENT OF TAXES AND ORDINARY AND NECESSARY EXPENSES FOR THE OPERATION,
22 REPAIR AND MAINTENANCE OF THE MORTGAGED PROPERTY AND SUCH OTHER EXPENSES
23 AS THE COURT MAY DIRECT. ANY MONEYS SO PAID OVER BY THE RECEIVER SHALL
24 BE DEDUCTED FROM THE AMOUNT DUE ON THE MORTGAGE, OR THE NOTE, BOND OR
25 OBLIGATION SECURED THEREBY, AND THE MORTGAGEE'S AFFIDAVIT OF THE INDEBT-
26 EDNESS FILED WITH THE REPORT OF SALE PURSUANT TO SECTION FOURTEEN
27 HUNDRED FOURTEEN OF THIS ARTICLE SHALL SO STATE THE AMOUNTS THEREOF.
28 4. THE RECEIVER SHALL BE ENTITLED TO SUCH COMMISSIONS, NOT EXCEEDING
29 FIVE PERCENT OF THE GREATER OF (A) THE SUMS RECEIVED BY THE RECEIVER OR
30 (B) THE SUMS DISBURSED BY THE RECEIVER, AS THE COURT BY WHICH THE
31 RECEIVER IS APPOINTED ALLOWS.
32 S 1421. RIGHT TO SEEK JUDICIAL INTERVENTION; MORTGAGEE'S LIABILITY FOR
33 FAILURE TO COMPLY WITH THIS ARTICLE. 1. IF THE MORTGAGEE COMMENCES
34 PROCEEDINGS UNDER THIS ARTICLE TO FORECLOSE A MORTGAGE, OR EXTENSION,
35 AMENDMENT, MODIFICATION OR CONSOLIDATION THEREOF, EXECUTED PRIOR TO THE
36 EFFECTIVE DATE OF THIS ARTICLE, THE MORTGAGOR MAY BY WRITTEN NOTICE TO
37 THE MORTGAGEE REQUIRE THAT FURTHER FORECLOSURE PROCEEDINGS BE CONDUCTED
38 JUDICIALLY AS PROVIDED IN ARTICLE THIRTEEN OF THIS CHAPTER. SUCH NOTICE
39 MUST BE DELIVERED TO THE MORTGAGEE BY REGISTERED OR CERTIFIED MAIL, OR
40 SUCH OTHER METHOD AS MAY BE SPECIFIED IN THE MORTGAGE, POSTMARKED NOT
41 LATER THAN FORTY DAYS AFTER THE DATE THE MORTGAGOR RECEIVES THE NOTICE
42 OF INTENTION TO FORECLOSE AS PROVIDED IN THIS ARTICLE, AND SHALL STATE
43 (A) THE DATE ON WHICH THE MORTGAGE, OR EXTENSION, AMENDMENT, MODIFICA-
44 TION OR CONSOLIDATION THEREOF, THAT THE MORTGAGEE SEEKS TO FORECLOSE WAS
45 EXECUTED, AND (B) THAT THE MORTGAGOR IS EXERCISING ITS RIGHT UNDER THIS
46 SECTION TO REQUIRE THAT THE FORECLOSURE OF THE MORTGAGE BE CONDUCTED
47 THROUGH THE JUDICIAL PROCESS.
48 2. IF THE MORTGAGEE COMMENCES PROCEEDINGS UNDER THIS ARTICLE TO FORE-
49 CLOSE A MORTGAGE, OR EXTENSION, AMENDMENT, MODIFICATION OR CONSOLIDATION
50 THEREOF, EXECUTED AFTER THE EFFECTIVE DATE OF THIS ARTICLE, THE MORTGA-
51 GOR, NOT LATER THAN FORTY DAYS AFTER THE DATE IT RECEIVES THE NOTICE OF
52 INTENTION TO FORECLOSE AS PROVIDED IN THIS ARTICLE, MAY APPLY, BY ORDER
53 TO SHOW CAUSE, TO THE SUPREME COURT IN THE COUNTY IN WHICH THE MORTGAGED
54 PROPERTY IS LOCATED FOR AN ORDER DIRECTING THAT FURTHER PROCEEDINGS BE
55 CONDUCTED PURSUANT TO ARTICLE THIRTEEN OF THIS CHAPTER, AND FOR A TEMPO-
56 RARY RESTRAINING ORDER STAYING FURTHER PROCEEDINGS UNDER THIS ARTICLE
A. 8993--A 15
1 PENDING A HEARING OF THE APPLICATION. THE APPLICATION SHALL INCLUDE ONE
2 OR MORE AFFIDAVITS (A) STATING WHETHER A PREVIOUS APPLICATION FOR THE
3 SAME OR SIMILAR RELIEF HAS BEEN MADE, AND IF SO THE OUTCOME THEREOF, AND
4 (B) STATING FACTS TO SUPPORT ONE OR MORE OF THE FOLLOWING ALLEGATIONS:
5 (1) THAT THE MORTGAGE, OR EXTENSION, AMENDMENT, MODIFICATION OR
6 CONSOLIDATION THEREOF, SOUGHT TO BE FORECLOSED DOES NOT CONTAIN A
7 PROVISION PERMITTING THE FORECLOSURE THEREOF BY POWER OF SALE OR OTHER
8 NON-JUDICIAL MEANS;
9 (2) THAT THE OBLIGATION SECURED BY THE MORTGAGE IS INVALID OR NOT
10 OTHERWISE DUE;
11 (3) THAT THE MORTGAGOR IS NOT IN DEFAULT UNDER THE MORTGAGE OR OTHER-
12 WISE HAS A MERITORIOUS DEFENSE TO THE FORECLOSURE THEREOF;
13 (4) THAT THE MORTGAGEE HAS NOT COMPLIED WITH THE TERMS AND CONDITIONS
14 OF THIS ARTICLE; OR
15 (5) THAT UNDER THE FACTS AND CIRCUMSTANCES, ALLOWING THE FORECLOSURE
16 TO PROCEED UNDER THIS ARTICLE WOULD CAUSE AN UNDUE HARDSHIP TO THE MORT-
17 GAGOR.
18 3. IF THE APPLICATION IS GRANTED, THE FORECLOSURE SHALL, UNLESS THE
19 COURT SUBSEQUENTLY ORDERS OTHERWISE, PROCEED PURSUANT TO ARTICLE THIR-
20 TEEN OF THIS CHAPTER FOR THE JUDICIAL FORECLOSURE OF THE MORTGAGE.
21 4. IF THE APPLICATION IS DENIED, THE SALE MAY PROCEED PURSUANT TO THIS
22 ARTICLE.
23 5. AT ANY TIME THE MORTGAGEE MAY, WITHOUT PREJUDICE, VOLUNTARILY
24 DISCONTINUE PROCEEDINGS UNDER THIS ARTICLE AND PURSUE SUCH RIGHTS AND
25 REMEDIES AS MAY BE AVAILABLE TO IT UNDER ARTICLE THIRTEEN OF THIS CHAP-
26 TER.
27 6. AFTER RECEIVING THE NOTICE OF INTENTION TO FORECLOSE, AN INTERESTED
28 PARTY OTHER THAN THE MORTGAGOR MAY PETITION THE COURT FOR RELIEF ONLY
29 PURSUANT TO THE PROVISIONS OF ARTICLE SIXTY-THREE OF THE CIVIL PRACTICE
30 LAW AND RULES. THE COURT SHALL APPLY THE STANDARDS FOR PRELIMINARY
31 INJUNCTIVE RELIEF AND SHALL CONSIDER WHETHER GRANTING THE RELIEF
32 REQUESTED WILL PREJUDICE THE SUBSTANTIAL RIGHTS OF ANY PARTY OR UNDULY
33 DELAY THE ADJUDICATION OF SUCH RIGHTS.
34 7. ANY PERSON ENTITLED TO RECEIVE NOTICE OF THE INTENTION TO FORECLOSE
35 OR NOTICE OF SALE UNDER THIS ARTICLE MAY RECOVER FROM THE MORTGAGEE ANY
36 DAMAGES CAUSED BY THE FAILURE OF THE MORTGAGEE TO COMPLY WITH THE PROCE-
37 DURES AND CONDITIONS SET FORTH IN THIS ARTICLE.
38 S 1422. DATA COLLECTION AND REPORT. 1. THE SUPERINTENDENT OF BANKS, IN
39 COOPERATION WITH THE OFFICE OF COURT ADMINISTRATION, SHALL DEVELOP A
40 FORM WHICH SHALL BE COMPLETED AND FILED BY THE MORTGAGEE WITH EVERY
41 NOTICE OF PENDENCY FILED UNDER THIS ARTICLE WHICH SHALL INCLUDE:
42 (A) THE VALUE OF PROPERTY BEING FORECLOSED, IF KNOWN;
43 (B) THE AMOUNT AND DATE OF MORTGAGE;
44 (C) THE LOCATION OF THE PROPERTY; AND
45 (D) THE AMOUNT IN DEFAULT ON THE MORTGAGE.
46 UPON RECEIPT, SUCH FORM SHALL BE FORWARDED BY THE COUNTY CLERK TO THE
47 SUPERINTENDENT OF BANKS.
48 2. IN THE EVENT THAT THE PROCEEDING UNDER THIS ARTICLE IS DISCONTIN-
49 UED, THE SUPERINTENDENT OF BANKS, IN COOPERATION WITH THE OFFICE OF
50 COURT ADMINISTRATION, SHALL DEVELOP A FORM WHICH SHALL BE COMPLETED AND
51 FILED BY THE MORTGAGEE WITH THE DISCONTINUANCE WHICH SHALL INCLUDE THE
52 REASON FOR THE DISCONTINUANCE.
53 UPON RECEIPT, SUCH FORM SHALL BE FORWARDED BY THE COUNTY CLERK TO THE
54 SUPERINTENDENT OF BANKS.
55 3. IN THE EVENT THAT THE PROPERTY IS SOLD AT AUCTION, THE SUPERINTEN-
56 DENT OF BANKS, IN COOPERATION WITH THE OFFICE OF COURT ADMINISTRATION,
A. 8993--A 16
1 SHALL DEVELOP A FORM WHICH SHALL BE COMPLETED AND FILED BY THE MORTGAGEE
2 WITH THE REPORT OF SALE PURSUANT TO SECTION FOURTEEN HUNDRED FIFTEEN OF
3 THIS ARTICLE AND SHALL INCLUDE:
4 (A) THE AUCTION PRICE OF THE PROPERTY;
5 (B) THE AMOUNT OF SURPLUS MONEY, IF ANY; AND
6 (C) THE AMOUNT OF ADDITIONAL MONEY OWED ON THE PROPERTY, IF ANY.
7 UPON RECEIPT, SUCH FORM SHALL BE FORWARDED BY THE COUNTY CLERK TO THE
8 SUPERINTENDENT OF BANKS.
9 4. THE SUPERINTENDENT OF BANKS SHALL COMPILE SUCH INFORMATION RECEIVED
10 PURSUANT TO THIS SECTION AND MAKE A REPORT OF FINDINGS TO THE GOVERNOR,
11 THE TEMPORARY PRESIDENT OF THE SENATE AND THE SPEAKER OF THE ASSEMBLY,
12 NO LATER THAN JUNE FIRST, TWO THOUSAND TEN.
13 S 2. Paragraph 1 of subdivision (a) of section 9-601 of the uniform
14 commercial code, as added by chapter 84 of the laws of 2001, is amended
15 to read as follows:
16 (1) may reduce a claim to judgment, foreclose, or otherwise enforce
17 the claim, security interest, or agricultural lien by any available
18 judicial procedure; PROVIDED, HOWEVER, THAT IN THE CASE OF A SECURITY
19 INTEREST IN A COOPERATIVE INTEREST, THE EXCLUSIVE REMEDY TO FORECLOSE OR
20 ENFORCE SUCH CLAIM SHALL BE ARTICLE THIRTEEN OF THE REAL PROPERTY
21 ACTIONS AND PROCEEDINGS LAW; and
22 S 3. The real property actions and proceedings law is amended by
23 adding a new section 1301-a to read as follows:
24 S 1301-A. SECURITY INTERESTS IN A COOPERATIVE INTEREST. THIS ARTICLE
25 SHALL EXPRESSLY APPLY TO ACTIONS TO FORECLOSE OR ENFORCE A CLAIM REGARD-
26 ING A SECURITY INTEREST IN A COOPERATIVE INTEREST ESTABLISHED UNDER
27 ARTICLE NINE OF THE UNIFORM COMMERCIAL CODE. REAL PROPERTY SHALL
28 INCLUDE, FOR PURPOSES OF THIS ARTICLE, THE OWNERSHIP OF SHARES IN A
29 COOPERATIVE INTEREST.
30 S 4. This act shall take effect July 1, 2009; provided that if this
31 act shall not have become a law on or before July 1, 2009, this act
32 shall take effect immediately and shall be deemed to have been in full
33 force and effect on and after July 1, 2009; article 14 of the real prop-
34 erty actions and proceedings law, as added by section one of this act,
35 shall expire and be deemed repealed July 1, 2010, but such article shall
36 continue to apply to any non-judicial proceeding in which the notice of
37 pendency was filed before July 1, 2010.
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