New York’s Legislature Foreclosure Update

New York's Legislature Makes Foreclosure Easier (For Once)

By: David P. Case, Esq., Fein, Such Law Group;

Even though the New York Legislature may not have had mortgage banks and servicers in mind when drafting Senate Bill 5162 (Hoylman-Sigal)/A.5772 (Lavine), the mortgage default industry ought to be able to use the convenience intended towards civil litigants to make its processes more efficient. On October 25, 2023, Gov. Kathy Hochul signed the Bill into law, which becomes effective January 1, 2024.

“What?!” you ask, “The New York State Legislature is doing something to help lenders in foreclosure be more efficient?” Well, not specifically, but this law change can be used to help streamline your attestation/affidavit execution process and will get rid of questions about whether or not an affidavit requires a Certificate of Conformity. The justification for the law is that “the requirement that litigants and other court participants have documents notarized is unduly burdensome…”

Laws of New York 2023, ch. 559 does away with the need for a notarization since a litigant will be allowed to offer an Affirmation—much like what attorneys, certain medical professionals, and out-of-country affiants could execute under N.Y. C.P.L.R. §2106. An affirmation “may be used in an action in New York in lieu of and with the same force and effect as an affidavit.” If Plaintiff's affiant uses an Affirmation pursuant to N.Y. C.P.L.R. §2106, instead of an Affidavit, and the Affirmation does not need to be notarized, then the Certificate of Conformity is no longer applicable.

There is a little bit of a talismanic formula that must be put into the affirmation for it to be valid: “I affirm this ____ day of ______, 20__, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.” Even though the legislation says that an Affirmation shall have language “substantially similar” to the language quoted, the shrewd attorney would recommend that you do not deviate from the language at all. Those of us with NY mortgage foreclosure experience (particularly after the back and forth with Kessler) should know and understand that when the Legislature quotes language to use, it is a best practice to use that language (without derivation) or risk having a court invalidate the document.