On December 30, 2022, New York Governor Kathy Hochul signed the “Foreclosure Abuse Prevention Act” into law. This law came into effect immediately. The legislation is entirely unchanged from proposal to enactment.

​Key takeaways from the new law are as follows:

• This new law is retroactive, which means that it applies to all foreclosure actions filed prior to December 30, 2022 in which a final judgment and order of sale has not yet been enforced. The investor or servicer has six years from the date of loan acceleration to foreclose a mortgage.
• If a foreclosure action is barred by the statute of limitations, not only can a foreclosure action not be commenced, but a suit on the note is also barred.
• Once commencement of a foreclosure occurs, no party may unilaterally stop the running of the statute of limitations. Previously, a Mortgagee could unilaterally stop the statute of limitations from continuing to run on a cause of action to foreclose a mortgage by revoking the acceleration of the mortgage debt. This portion of the new law abrogates the decision of the New York Court of Appeals in Freedom Mortgage Corp. v. Engel, 37 N.Y. 3d1 (2021).
• There is no longer a defense of an invalid acceleration available in a quiet title action or as a response to a statute of limitations affirmative defense. If there is a Court Order ruling that an acceleration is invalid, then the defense may be available.
• A voluntary discontinuance of a foreclosure action does not reset the six year statute of limitations to commence a foreclosure action. Even in situations where a foreclosure action is discontinued by joint stipulation, the statute of limitations is not reset. The only available avenue to reset the statute of limitations is pursuant to an agreement in writing.

Robust advocacy efforts are underway to continue engagement with the New York legislature to challenge this law and its various provisions. The retroactive provision opens the law up to potential constitutional challenges. This law is effective as of December 30, 2022, so servicers and their counsel should be prepared to proceed under the new requirements.

Questions? This post was prepared by Jacqueline F. McNally, Esq. Contact us here.

​It is well settled law that a mortgagee’s lien is an exception to Statute of Nonclaim set forth in Florida Statute, section 733.710, which bars any claim regardless of notice after two years from the date of the decedent’s death.  Florida Statute 733.710(3) provides that a duly recorded mortgage remains intact and fully enforceable notwithstanding the lienholder’s failure to file a claim in the probate.
 
Why then should a mortgagee file a claim in a deceased borrower’s probate action?
 
The answer to this question is best answered by way of review of a Florida Supreme Court decision, In re Comstock’s Estate, dating all the way back to 1940.

In response to Hurricane Ian, PLG has closed its Tampa, Florida office effective Wednesday, September 28 until further notice for the safety of our employees. At this time, the firm’s Florida operations remain unimpacted and general business continues uninterrupted via our office in Tallahassee and remote work authorization for potentially impacted employees. PLG's servers are protected, operational, and data redundant per our Business Continuity Plan. At this time, the firm anticipates remaining fully operational and available for client interfacing with little to no impact on day-to-day operations. 

PLG is also monitoring court closures in response to the hurricane and will update clients as needed regarding rescheduled hearings, trials, sales, and other delays related to the impact of Hurricane Ian. Click here to see a list of current closures provided by our vendor Provest. Everyone impacted and those in the path of Hurricane Ian are in our thoughts and prayers.

Padgett Law Group (“PLG”) through its attorney, Seth J. Greenhill, Esq., successfully obtained a rare win for creditors in Federal Court by obtaining sanctions against a pro se litigant who filed a frivolous appeal. This aggressive advocacy on behalf of PLG’s client was necessary to put an end to this vexatious litigation and contributes to building case law that will assist other creditors’ rights attorneys in defense of their clients. 
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“The key takeaway is that it is critical to establish the record in the original litigation. This provides notice to the pro se appellant,” said Mr. Greenhill. He continued, “This is a requirement in order to have sanctions imposed. In addition, it is vital to review the appellant brief in order to determine if the issues have already been disposed of.” 

The Ohio Legislature is currently considering Senate Bill 334, titled (in short) “Grant certain bidders rights – foreclosed residential property,” which seeks to amend section 2329.27 and to enact sections 2329.261 and 2329.313 of the Revised Code to grant tenants and certain other eligible bidders rights relating to the purchase of residential property sold through the process of foreclosure. The Bill applies to foreclosure sales of one to four family residential properties, and requires the selling officer, whether sheriff or private selling officer, to include in its sale advertisement, the following notice:

"NOTICE TO TENANTS AND OTHER ELIGIBLE BIDDERS: You may have a right to purchase this property after the sale pursuant to R.C. 2329.313. If you are an "eligible-tenant buyer," you can purchase the property if you match the successful bid placed at the sale. If you are an "eligible bidder," you may be able to purchase the property if you exceed the successful bid placed at the sale. There are three steps to exercising this right of purchase. First, two calendar days after the date of the sale, you can call [telephone number for information regarding the sale], or visit this web site [web site address for information regarding the sale], using the file number assigned to this case [case file number] to find the date on which the sale was held, the amount of the successful bid, and the address of the person who conducted the sale. Second, you must send a written notice of intent to place a bid so that the person who conducted the sale receives it not more than fifteen days after the date of the sale. Third, you must submit a bid so that the person who conducted the sale receives it not more than forty-five days after the date of the sale. If you think you may qualify as an "eligible tenant-buyer" or "eligible bidder," you should consider contacting an attorney or appropriate real estate professional immediately for advice regarding this potential right to purchase.”