New York Consolidated Laws, Real Property Actions and Proceedings Law - RPA § 1304. Required prior notices




1. [Eff. until Jan. 14, 2020, pursuant to L.2009, c. 507, § 25, subd. a;  L.2016, c.73, pt. Q, § 11.  See, also, subd. 1 below.] Notwithstanding any other provision of law, with regard to a home loan, at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, or borrowers at the property address and any other address of record, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower in at least fourteen-point type which shall include the following:

“YOU MAY BE AT RISK OF

FORECLOSURE.  PLEASE READ THE FOLLOWING NOTICE CAREFULLY”

“As of ___, your home loan is ___ days and ___ dollars in default.  Under New York State Law, we are required to send you this notice to inform you that you are at risk of losing your home.  

 Attached to this notice is a list of government approved housing counseling agencies in your area which provide free counseling.  You can also call the NYS Office of the Attorney General's Homeowner Protection Program (HOPP) toll-free consumer hotline to be connected to free housing counseling services in your area at 1-855-HOME-456 (1-855-466-3456), or visit their website at http://www.aghomehelp.com/.  A statewide listing by county is also available at http://www.dfs.ny.gov/consumer/mortg nys np counseling agencies.htm.  Qualified free help is available;  watch out for companies or people who charge a fee for these services.

Housing counselors from New York-based agencies listed on the website above are trained to help homeowners who are having problems making their mortgage payments and can help you find the best option for your situation.  If you wish, you may also contact us directly at _________ and ask to discuss possible options.

While we cannot assure that a mutually agreeable resolution is possible, we encourage you to take immediate steps to try to achieve a resolution.  The longer you wait, the fewer options you may have.

If you have not taken any actions to resolve this matter within 90 days from the date this notice was mailed, we may commence legal action against you (or sooner if you cease to live in the dwelling as your primary residence.)

If you need further information, please call the New York State Department of Financial Services' toll-free helpline at (show number) or visit the Department's website at (show web address).

IMPORTANT:  You have the right to remain in your home until you receive a court order telling you to leave the property.  If a foreclosure action is filed against you in court, you still have the right to remain in the home until a court orders you to leave.  You legally remain the owner of and are responsible for the property until the property is sold by you or by order of the court at the conclusion of any foreclosure proceedings.  This notice is not an eviction notice, and a foreclosure action has not yet been commenced against you.  [FN1]

1. [Eff. Jan. 14, 2020, pursuant to L.2009, c. 507, § 25, subd. a;  L.2016, c.73, pt. Q, § 11.  See, also, subd. 1 above.] Notwithstanding any other provision of law, with regard to a high-cost home loan, as such term is defined in section six-l of the banking law, a subprime home loan or a non-traditional home loan, at least ninety days before a lender or a mortgage loan servicer commences legal action against the borrower, including mortgage foreclosure, the lender or mortgage loan servicer shall give notice to the borrower(s) at the property address and any other address of record in at least fourteen-point type which shall include the following:

“YOU MAY BE AT RISK OF

FORECLOSURE.  PLEASE READ
THE FOLLOWING NOTICE CAREFULLY”

“As of ___, your home loan is ___ days and _______ dollars in default.  Under New York State Law, we are required to send you this notice to inform you that you are at risk of losing your home.   There may be options available to you to keep your home.  This may include applying for a loan modification of your mortgage, or reinstating your loan by making the payment.

 Attached to this notice is a list of government approved housing counseling agencies in your area which provide free or very low-cost counseling.   You can also call the NYS Office of the Attorney General's Homeowner Protection Program (HOPP) toll-free consumer hotline to be connected to free housing counseling services in your area at 1-855-HOME-456 (1-855-466-3456), or visit their website at http://www.aghomehelp.com/.  A statewide listing by county is also available at http://www.dfs.ny.gov/consumer/mortg nys np counseling agencies.htm.  Qualified free help is available;  watch out for companies or people who charge a fee for these services.

Housing counselors from New York-based agencies listed on the website above are trained to help homeowners who are having problems making their mortgage payments and can help you find the best option for your situation.  If you wish, you may also contact us directly at __________ and ask to discuss possible options.

While we cannot assure that a mutually agreeable resolution is possible, we encourage you to take immediate steps to try to achieve a resolution.  The longer you wait, the fewer options you may have.

If you have not taken any actions to resolve this matter within 90 days from the date this notice was mailed, we may commence legal action against you (or sooner if you cease to live in the dwelling as your primary residence.)

If you need further information, please call the New York State Department of Financial Services' toll-free helpline at (show number) or visit the Department's website at (show web address)”.  [FN2]

IMPORTANT:  You have the right to remain in your home until you receive a court order telling you to leave the property.  If a foreclosure action is filed against you in court, you still have the right to remain in the home until a court orders you to leave.  You legally remain the owner of and are responsible for the property until the property is sold by you or by order of the court at the conclusion of any foreclosure proceedings.  This notice is not an eviction notice, and a foreclosure action has not yet been commenced against you.  [FN3]

2. [Eff. until Jan. 14, 2020, pursuant to L.2009, c. 507, § 25, subd. a;  L.2016, c.73, pt. Q, § 11.  See, also, subd. 2 below.] Such notice shall be sent by such lender, assignee (including purchasing investor) or mortgage loan servicer to the borrower, by registered or certified mail and also by first-class mail to the last known address of the borrower, and to the residence that is the subject of the mortgage.  Such notice shall be sent by the lender, assignee or mortgage loan servicer in a separate envelope from any other mailing or notice.  Notice is considered given as of the date it is mailed.  The notice shall contain a current list of at least five housing counseling agencies serving the county where the property is located from the most recent listing available from department of financial services.  The list shall include the counseling agencies' last known addresses and telephone numbers.  The department of financial services shall make available on its websites a listing, by county, of such agencies.  The lender, assignee or mortgage loan servicer shall use such lists to meet the requirements of this section.

2. [Eff. Jan. 14, 2020, pursuant to L.2009, c. 507, § 25, subd. a;  L.2016, c.73, pt. Q, § 11.  See, also, subd. 2 above.] Such notice shall be sent by the lender or mortgage loan servicer to the borrower, by registered or certified mail and also by first-class mail to the last known address of the borrower, and to the residence which is the subject of the mortgage.  Notice is considered given as of the date it is mailed.  The notice shall contain a current list of United States department of housing and urban development approved housing counseling agencies, or other housing counseling agencies serving the county where the property is located from the most recent listing available from the department of financial services.  The list shall include the counseling agencies' last known addresses and telephone numbers.  The department of financial services shall make available a listing, by county, of such agencies which the lender or mortgage loan servicer may use to meet the requirements of this section.

3. The ninety day period specified in the notice contained in subdivision one of this section shall not apply, or shall cease to apply, if the borrower has filed for bankruptcy protection under federal law, or if the borrower no longer occupies the residence as the borrower's principal dwelling.  Nothing herein shall relieve the lender, assignee or mortgage loan servicer of the obligation to send such notice, which notice shall be a condition precedent to commencing a foreclosure proceeding.

4. The notice and the ninety day period required by subdivision one of this section need only be provided once in a twelve month period to the same borrower in connection with the same loan and same delinquency.  Should a borrower cure a delinquency but re-default in the same twelve month period, the lender shall provide a new notice pursuant to this section.

5. For any borrower known to have limited English proficiency, the notice required by subdivision one of this section shall be in the borrower's native language (or a language in which the borrower is proficient), provided that the language is one of the six most common non-English languages spoken by individuals with limited English proficiency in the state of New York, based on United States census data.  The department of financial services shall post the notice required by subdivision one of this section on its website in the six most common non-English languages spoken by individuals with limited English proficiency in the state of New York, based on the United States census data.

6. [Eff. until Jan. 14, 2020, pursuant to L.2009, c. 507, § 25, subd. a;  L.2016, c.73, pt. Q, § 11.  See, also, subd. 6 below.] (a) “Home loan” means a loan, including an open-end credit plan, other than a reverse mortgage transaction, in which:

(i) The borrower is a natural person;

(ii) The debt is incurred by the borrower primarily for personal, family, or household purposes;

(iii) The loan is secured by a mortgage or deed of trust on real estate improved by a one to four family dwelling, or a condominium unit, in either case, used or occupied, or intended to be used or occupied wholly or partly, as the home or residence of one or more persons and which is or will be occupied by the borrower as the borrower's principal dwelling;  and

(iv) The property is located in this state.

(b) “Lender” means a mortgage banker as defined in paragraph (f) of subdivision one of section five hundred ninety of the banking law or an exempt organization as defined in paragraph (e) of subdivision one of section five hundred ninety of the banking law.

6. [Eff. Jan. 14, 2020, pursuant to L.2009, c. 507, § 25, subd. a. See, also, subd. 6 above.] (a) “Annual percentage rate” means the annual percentage rate for the loan calculated according to the provisions of the Federal Truth-in-Lending Act (15 U.S.C. § 1601, et seq.), and the regulations promulgated thereunder by the federal reserve board (as said act and regulations are amended from time to time).

(b) “Home loan” means a home loan, including an open-end credit plan, other than a reverse mortgage transaction, in which:

(i) The principal amount of the loan at origination did not exceed the conforming loan size that was in existence at the time of origination for a comparable dwelling as established by the federal national mortgage association;

(ii) The borrower is a natural person;

(iii) The debt is incurred by the borrower primarily for personal, family, or household purposes;

(iv) The loan is secured by a mortgage or deed of trust on real estate upon which there is located or there is to be located a structure or structures intended principally for occupancy of from one to four families which is or will be occupied by the borrower as the borrower's principal dwelling;  and

(v) The property is located in this state.

(c) “Subprime home loan” for the purposes of this section, means a home loan consummated between January first, two thousand three and September first, two thousand eight in which the terms of the loan exceed the threshold as defined in paragraph (d) of this subdivision.  A subprime home loan excludes a transaction to finance the initial construction of a dwelling, a temporary or “bridge” loan with a term of twelve months or less, such as a loan to purchase a new dwelling where the borrower plans to sell a current dwelling within twelve months, or a home equity line of credit.

(d) “Threshold” means, for a first lien mortgage loan, the annual percentage rate of the home loan at consummation of the transaction exceeds three percentage points over the yield on treasury securities having comparable periods of maturity to the loan maturity measured as of the fifteenth day of the month in which the loan was consummated;  or for a subordinate mortgage lien, the annual percentage rate of the home loan at consummation of the transaction equals or exceeds five percentage points over the yield on treasury securities having comparable periods of maturity on the fifteenth day of the month in which the loan was consummated;  as determined by the following rules:  if the terms of the home loan offer any initial or introductory period, and the annual percentage rate is less than that which will apply after the end of such initial or introductory period, then the annual percentage rate that shall be taken into account for purposes of this section shall be the rate which applies after the initial or introductory period.

(e) “Non-traditional home loan” shall mean a payment option adjustable rate mortgage or an interest only loan consummated between January first, two thousand three and September first, two thousand eight.

(f) For purposes of determining the threshold, the department of financial services shall publish on its website a listing of constant maturity yields for U.S. Treasury securities for each month between January first, two thousand three and September first, two thousand eight, as published in the Federal Reserve Statistical Release on selected interest rates, commonly referred to as the H.15 release, in the following maturities, to the extent available in such release:  six month, one year, two year, three year, five year, seven year, ten year, thirty year.

(g) “Lender” means a mortgage banker as defined in paragraph (f) of subdivision one of section five hundred ninety of the banking law or an exempt organization as defined in paragraph (e) of subdivision one of section five hundred ninety of the banking law.

7. The department of financial services shall prescribe the telephone number and web address to be included in the notice.

[FN1]

 So in original. (closing quotation marks should be bracketed.)

[FN2]

 So in original. (closing quotation marks should be bracketed.)

[FN3]

 So in original. (closing quotation marks inadvertently omitted.)


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