Roach & Lin, P.C.

New York state COVID-19 update provided by Roach & Lin, P.C.

As discussed in prior updates, Governor Cuomo had previously issued executive orders prohibiting the commencement and enforcement of commercial foreclosures and evictions of commercial tenants where the basis of default was nonpayment. The expiration of the moratoria was set to expire on August 20, 2020.

On September 18, 2020 Governor Cuomo (NY) has issued a new Executive Order (EO 202.64) which extends the moratorium prohibiting the commencement and enforcement of commercial foreclosures and evictions of commercial tenants through October 20, 2020.

Based on a plain reading of the series of Executive Orders, there appears to be a gap where there was no applicable moratorium on commercial foreclosure and evictions. What remains unclear based on the language of this and prior Executive Orders is whether the intention of EO 202.64 is to apply the moratoria on a “nunc pro tunc” basis, meaning this moratorium would apply retroactively from August 20, 2020.

A copy of the executive order has been attached for your reference.

We will continue to monitor for guidance from the Governor’s office and/or the Courts, and we will keep you posted.

Click Here For More Information.

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Roach & Lin, P.C.

New York state COVID-19 update provided by Roach & Lin, P.C.

As a follow up to our previous update, the New York State Department of Financial Services (DFS) has updated their FAQ website in regards to Banking Law 9-x. The DFS previously took the position that the 180-360 day statutory forbearance was not available on loans that were accelerated or in foreclosure as of March 7, 2020. This position eliminated all loans that were accelerated prior to March 7, 2020 from eligibility. According to the below excerpt from the DFS website, their position has recently changed to reflect as follows:

Q: Is forbearance relief under Section 9-x available to borrowers whose loans were accelerated or in foreclosure before March 7, 2020?

A: Forbearance relief under Section 9-x is available to loans that were accelerated or in foreclosure if the loan is in a trial or permanent modification or otherwise received a deceleration notice. Otherwise, forbearance relief is not available under Section 9-x for loans that were accelerated or in foreclosure as of that date.

This update is important as it affects loans that may have been thought to have been excluded from consideration in regards to the statutory forbearance.

Stated differently, and combining the other terms of the statute, for any loan/mortgagor to qualify for the statutory forbearance pursuant to Baking Law 9-x, the following must apply:

(1)   the mortgagors must demonstrate that they are “qualified mortgagors” by demonstrating financial hardship as a result of COVID-19 during the covered period.

(2)   the subject loan must be a “home loan” which is defined using the following factors:

  1. The borrower is a natural person (not a corporate entity);
  2. The debt is incurred by the borrower primarily for personal, family, or household purposes;
  3. The loan is secured by a one to four family dwelling, or a condominium unit … which is or will be occupied by the borrower as the borrower’s principal dwelling; and
  4. the property is located in New York State.

(3)   As of March 7, 2020, the subject loan was not accelerated either by notice (pursuant to the terms of the mortgage) or by commencement/filing of a foreclosure action, or the loan was “de-accelerated” via:

  1. trial modification as of March 7, 2020;
  2. permanent modification as of March 7, 2020; or
  3. notice received by the mortgagor(s) as of March 7, 2020.

There are many additional Q&A’s found on the FAQ website. A link to the FAQ site may be found here: https://www.dfs.ny.gov/apps_and_licensing/mortgage_companies/mortgage_forbearance_statute_sect9x_faqs

The text of the statute, Banking Law 9-x,  may be found here: https://www.nysenate.gov/legislation/laws/BNK/9-X

Please review the site and feel free reach out with questions.

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Roach & Lin, P.C.

New York state COVID-19 update provided by Roach & Lin, P.C.

The New York State Department of Financial Services has released a Frequently Asked Questions “FAQ” link on their website in regards to the recently enacted statute, Banking Law 9-x. Reviewing this site may be helpful in clearing up some of the common questions surrounding the new statute. As a reminder, Banking Law 9-x requires that Lenders/Servicers make the application of the 180-360 day forbearance “widely available to qualified mortgagors”. We have attached our prior update entitled “Governor Suspends New York Residential Foreclosure Moratorium” which provides some detail regarding the requirements of Banking Law 9-x. Many of the requirements were rather vague, which resulted in lenders/servicers addressing this statute in a variety of ways. The requirements found in this statute are a condition precedent to the commencement of a foreclosure (filing of first legal), so familiarity and compliance with this statute is of utmost importance when servicing loans in New York.

What is perhaps the most notable Q&A provided on the site is as follows:

Question: Is forbearance relief under Section 9-x available to borrowers whose loans were accelerated or in foreclosure before March 7, 2020?

Answer: No, forbearance relief is not available under Section 9-x for loans that were accelerated or in foreclosure as of that date.

A plain reading of the statute indicates that forbearance relief is available to any borrower who has a loan on their primary residence and who can demonstrate financial hardship as a result of COVID-19 during the covered period (from March 7, 2020-present). The statute specifically defines a “qualified mortgagor” as an individual whose primary residence is located in New York and is encumbered by a home loan … who demonstrates financial hardship as a result of COVID-19 during the covered period. The above response from the Department of Financial Services seems to add an additional restriction to the definition of a “qualified mortgagor”- that one cannot “qualify” for the forbearance if their loan was accelerated or in foreclosure on or before March 7, 2020.

The above reading has a tremendous impact on borrowers and lenders alike- any borrower whose loan has been accelerated or whose loan is presently in foreclosure (post-first legal) prior to March 7, 2020 DOES NOT qualify for the forbearance relief provided in Banking Law 9-x.

Below is some potentially helpful information found on the FAQ site:

Making applications “widely available” means that regulated institutions must ensure that borrowers … are informed of the available option to seek forbearance and are provided with a forbearance application. Institutions should establish recorded messages or maintain website pages instructing borrowers experiencing COVID-19 related hardship on how to obtain relief.

Criteria or a definition of a “financial hardship as a result of COVID-19” is not defined/provided for in the statute but it is up to each institution to establish such standards and apply them in light of its knowledge of the individual borrower. Standards may include, but are not limited to, the borrower’s financial resources, payment history and current circumstances, subject to the safety and soundness of the institution. Institutions are encouraged to take a reasonable approach in establishing such standards and criteria to help those who are facing financial resource constraints as a result of the COVID-19 pandemic.

Banking Law 9-x does not apply to vacation homes or investment properties. The statute only applies to residential mortgage loans (including home equity lines of credit) on 1-4 family properties, including cooperative units and condominiums, that is the primary residence of the borrower.

The forbearance is not required to last 180 days; in the event a qualified borrower prefers a shorter forbearance period, the institution may grant such shorter forbearance period.

Borrowers must demonstrate an ongoing COVID-19-related hardship to qualify for an extended forbearance beyond the initial 180-day period.

There are many additional Q&A’s found on the FAQ website. A link to the FAQ site may be found here: https://www.dfs.ny.gov/apps_and_licensing/mortgage_companies/mortgage_forbearance_statute_sect9x_faqs

The text of the statute, Banking Law 9-x,  may be found here: https://www.nysenate.gov/legislation/laws/BNK/9-X.

Please review the site and feel free reach out with questions.

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Roach & Lin, P.C.

New York state COVID-19 update provided by Roach & Lin, P.C.

The Chief Administrative Judge of the New York State Unified Court System has issued an Administrative Order (AO/157/20), effective Monday, July 27, 2020, which has removed the general stay of foreclosures in New York, and provides the protocol for foreclosure proceedings going forward.

COMMENCEMENT (FILING FIRST LEGAL) REQUIREMENTS:

 1)     Commencement papers in all foreclosure proceedings are required to include the form notice (in English and Spanish) indicating that defendants may be eligible for an extension of time to respond to the complaint (AO/131/20).

2)     In regards to Non-GSE residential foreclosures, Lenders must comply with Banking Law 9-x as a condition precedent to filing a new foreclosure action and as a requirement in existing foreclosures, which, in short, requires that a 180-360 day forbearance with certain specific terms, is made available to “qualified mortgagors” as defined in the statute.

FILING AND SERVICE OF DOCUMENTS:

1)     These requirements remain the same pursuant to a prior administrative order (AO/121/20).

         a.      Represented Parties must file and serve all papers, other than service of commencement documents, by electronic means through NYSCEF, or by mail where permitted under NYSCEF rules.

          b.      Commencement documents in courts or case-types where NYSCEF electronic filing is not available must be filed by mail. Thereafter, papers must be filed through the Electronic Document Delivery System (EDDS) or by mail.

          c.      The court shall not request working copies of documents in paper format.

POST-FIRST LEGAL REQUIREMENTS:

1)     The requirements of Banking Law 9-x, that a 180-360 day forbearance with certain specific terms must be made available to “qualified mortgagors” as defined in the statute also apply to post-first legal loans/files.

2)     The court will initiate a status or settlement conference to address a range of subjects related to the case and COVID-19 concerns. This may take place during the 3408 mediations for residential foreclosures.

          a.      This will likely provide a forum for the borrowers to confirm whether they have faced a financial hardship due to the COVID-19 pandemic, and thereafter request the statutory 180-360 day forbearance plan pursuant to Banking Law 9-x.

           b.      In addition to reviewing the effects of the COVID-19 pandemic upon the parties, the court will confirm compliance with notice requirements and review the procedural history of the matter.

            c.      If the borrower does not appear at the conference, the court will make a second attempt and schedule another          conference before undertaking further proceedings in the foreclosure.

3)     After the above conference is “held” the court will allow the foreclosure to proceed.

4)     Proceedings should be conducted remotely to the fullest extent possible.

SALE REQUIREMENTS:

1)     No auction or sale of property may be scheduled to occur prior to October 15, 2020.

2)     While this order doesn’t specifically state so, the presumption (until clarification is received) is that the above-referenced conference listed under “POST-FIRST LEGAL REQUIREMENTS” must be held prior to a sale taking place.

Please note that Banking Law 9-x does not apply to loans owned or insured by GSE’s (FHA, VA, USDA, FNMA and FHLMC). The aforementioned GSE’s have also placed a self-imposed moratorium on foreclosures, other than for vacant and abandoned properties, through August 31, 2020 which remains in effect.

In addition, the above does not apply to the moratorium of the commencement and enforcement of commercial foreclosure matters where the mortgagors are facing financial hardship due to the COVID-19 pandemic is still in place through August 19, 2020.

References:

A copy of Governor Cuomo’s Executive Order 202.48 and Banking Law 9-x may be found here: https://www.governor.ny.gov/news/no-20248-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency

Copies of all of the above-referenced Administrative Orders can be found here: https://www.nycourts.gov/latest-AO.shtml

A copy of Administrative Order AO/157/20 has not yet been placed on the above site, but a copy is attached for your convenience.

Our July 7, 2020 update entitled “Governor Suspends New York Residential Foreclosure Moratorium” which provides a more in depth review of Banking Law 9-x is also attached.

Upon review of the above please feel free to contact us at any time should you have any questions.

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Roach & Lin, P.C.

New York state COVID-19 update provided by Roach & Lin, P.C.

The Chief Administrative Judge of the New York State court system has issued the attached memorandum addressing the current procedure for residential and commercial eviction proceedings.

Regarding New Eviction Filings:

A)New evictions may be filed with the court via NYSCEF or mail, and

B)Until further order, new evictions must be filed with two additional documents:

1)      An attorney affirmation that indicates counsel has reviewed the various state and federal restrictions and qualifications on eviction proceedings and believes in good faith that the proceeding is consistent with those restrictions and qualifications; and

2)      A form notice sent to defendants-tenants in English and Spanish, informing them that they may be eligible for an extension of time to respond to the petition in light of the legal directives related to the COVID-19 pandemic and directing them to a website link for further information (a sample copy of this letter is found on the memorandum).

Regarding Existing Evictions Cases:

The suspension of eviction activity remains in place, with the following exception: Eviction matters commenced on or before March 16, 2020 in which all parties are represented by counsel shall be eligible for calendaring for virtual settlement conferences.

Analysis:

Similar to foreclosure, the courts now allow new evictions to be filed provided the petition includes the two documents described above, including an affirmation or affidavit which must state that the new eviction filing does not fall within any of the listed restrictions/moratoriums. Once filed, the eviction is stayed until the suspension issued in Governor Cuomo’s executive order has expired.

The Chief Administrative Judge has indicated that further directives will follow at or prior to the expiration of the suspension.

We will continue to monitor and advise of any future changes.

Please feel free to reach out with any questions regarding the above.

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Roach & Lin, P.C.

New York state COVID-19 update provided by Roach & Lin, P.C.

The Chief Administrative Judge of the New York State court system has issued an memorandum addressing the current procedure for residential and foreclosure proceedings. This memorandum appears to be more consistent with the mandates of the Governor’s Executive Order 202.28 (https://www.governor.ny.gov/news/no-20228-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency). The attached memorandum provides as follows, effective today, June 24, 2020:

Regarding New Foreclosure Filings:

A)New foreclosures may be commenced provided they are filed via NYSCEF or mail, and

B)Until further order, new foreclosures must be filed with two additional documents:

      1)     An attorney affirmation that indicates counsel has reviewed the various state and federal restrictions and qualifications on foreclosure proceedings and believes in good faith that the proceeding is consistent with those restrictions and qualifications; and

     2)     A form notice sent to defendants-tenants in English and Spanish, informing them that they may be eligible for an extension of time to respond to the complaint in light of the legal directives related to the COVID-19 pandemic and directing them to a website link for further information (a sample copy of this letter is found on the Order).

Regarding Existing/Post-First Legal Foreclosures:

The suspension of post-first legal/post-commencement foreclosure activity remains in place, but the following activity is now allowed:

  1. Foreclosure matters in which all parties are represented by counsel are eligible for calendaring for both initial and follow-up virtual settlement conferences;
  2. Lenders may move for a Judgment of Foreclosure and Sale on the ground that a property is vacant and abandoned; and
  3. Lenders may move to discontinue a pending case.

Analysis:

The courts now allow new foreclosures to be filed with the two documents described above, but the challenge will be the affirmation requirement which must state that the new foreclosure filing does not fall within any of the listed restrictions/moratoriums.  For example, pursuant to the Governor’s Executive Order 202.28, the Lender and Attorney must be able to confirm that the borrowers are not eligible for unemployment insurance or benefits under state or federal law or otherwise facing financial hardship due to the COVID-19 pandemic (through August 20, 2020). In addition, if the loan is a Fannie Mae, Freddie Mac, FHA, USDA or VA-insured mortgage, the foreclosure may only proceed on a vacant and abandoned property (through August 30, 2020).

As for Existing/Post-First Legal Foreclosures, the courts will continue to halt all foreclosure activity with the following exceptions: virtual settlement conferences where all parties are represented by counsel, motions for Judgment of Foreclosure and Sale (JFS) on vacant and abandoned properties, and discontinuance motions. For the purposes of filing a motion for a JFS on a vacant and abandoned property, we recommend obtaining proof (i.e. inspection records, photographs, etc) to include with the motion.

We will continue to monitor and advise of any future changes.

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Roach & Lin, P.C.

New York state COVID-19 update provided by Roach & Lin, P.C.

The Chief Administrative Judge of the New York court system announced that the New York City courthouses which consist of the counties of New York (Manhattan), Kings, Queens, Bronx and Richmond (Staten Island), will  return to limited in-person courthouse operations beginning June 10, 2020. Physical distancing and other safety measures will be enforced including COVID-19 screenings for all non-employee court visitors.

While this measure allows for public access to the courthouses in New York City, the courts will continue to conduct hearings virtually. A copy of the Chief Administrative Judge’s press release can be found here: https://www.nycourts.gov/LegacyPDFS/press/pdfs/PR20_23.pdf

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Roach & Lin, P.C.

New York state COVID-19 update provided by Roach & Lin, P.C.

As previously discussed, Governor Cuomo’s Executive Order (EO 202.28) provided, in part, that there shall be no initiation of a proceeding or enforcement of either an eviction or a foreclosure … for a period of sixty days (until August 20, 2020). While the wording in this order (and previous orders) was vague, a plain reading of this order implied that the restrictions specifically affect (1) the filing of new foreclosure actions and (2) holding a foreclosure auction/sale in existing foreclosure actions, and that Plaintiffs in foreclosure may proceed in existing (post-first legal) foreclosures until the foreclosure auction/sale stage is reached. The text of the executive order may be found here: https://www.governor.ny.gov/news/no-20228-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency

The New York State Office of Court Administration (OCA) oversees the day-to-day operation of the New York State court system. We have been informed by the OCA that based on their interpretation of EO 202.28 that no motion filings are being accepted for foreclosure related matters at this time. When accessing the New York State Courts Electronic Filing System (NYSCEF) we have confirmed that the OCA has disabled the option to file all foreclosure related motions, including an Order of Reference, Judgment of Foreclosure and Sale, and even a discontinuance.

As the OCA’s position appears to be a broad interpretation of EO 202.28, we will continue to monitor any changes in policy from the OCA or additional direction from the Governor’s office.

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Roach & Lin, P.C.

New York state COVID-19 update provided by Roach & Lin, P.C.

Previously, the Courts of the State of New York were not able to accept the filing of new cases (filing of first legal) for any case-type, including foreclosure and eviction. On May 20, 2020, the Chief Administrative Judge of the New York State Court System announced that effective Monday, May 25, e-filing through the NYSCEF system will be restored, including the commencement of new, non-essential matters (filing of first legal), for all counties that participate in e-filing through the NYSCEF system, including the counties that have not “reopened” pursuant to the Governor’s regional reopening plan. The full text of the Chief Administrative Judge’s order may be found at: https://www.nycourts.gov/whatsnew/pdf/AO-111-20.pdf

While Governor Cuomo’s Executive Order specifically prohibiting the commencement and enforcement of Foreclosures and Evictions through August 20, 2020 is still in effect, yesterday’s announcement effectively removes one of the “impediments” to filing new foreclosures and evictions in the State of New York.

As a guide, the counties that are authorized for e-filing through the NYSCEF system are: Albany, Bronx, Broome, Cattaraugus, Chautauqua, Chemung, Chenango, Clinton, Columbia, Cortland, Delaware, Dutchess, Erie, Essex, Franklin, Genesee, Jefferson, Kings, Lewis, Livingston, Madison, Monroe, Nassau, New York, Niagara, Oneida, Onondaga, Ontario, Orange, Oswego, Otsego, Putnam, Queens, Rensselaer, Richmond, Rockland, Saratoga, Schuyler, Seneca, St. Lawrence, Steuben,  Suffolk, Sullivan, Tioga,  Tompkins, Ulster, Warren, Washington, Wayne, Westchester, Wyoming, and Yates counties.

In addition to the above, the following Supreme Courts have physically reopened and are accepting the filing of new cases: Cayuga, Fulton, Hamilton, Herkimer, Montgomery, Orleans and Schoharie counties.

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Roach & Lin, P.C.

New York state COVID-19 update provided by Roach & Lin, P.C.

The New York State Unified Court System issued a notification which provides for a number of courts to return to in-person courthouse operations as of Wednesday, May 18-20, 2020. The courts that will reopen are all in the upstate region of New York State and consist of Broome, Chemung, Chenango, Clinton, Delaware, Essex, Franklin, Fulton, Genesee, Hamilton, Herkimer, Jefferson, Lewis, Livingston, Monroe, Montgomery, Oneida, Ontario, Orleans, Otsego, Schoharie, Schuyler, Seneca, St. Lawrence, Steuben, Tioga, Tompkins, Wayne, Wyoming, and Yates counties.

For the above counties only, beginning next week, new cases will be permitted to be filed electronically. It should be noted that while these counties will begin to accept new case filings for other types of matters, filing new foreclosures and evictions is still prohibited pursuant to Governor Cuomo’s Executive Order in effect through August 19, 2020.

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Roach & Lin, P.C.

New York state COVID-19 update provided by Roach & Lin, P.C.

Governor Cuomo has issued an Executive Order (EO 202.28) which provides for the following in relevance to New York foreclosure and eviction:

Commencement and Enforcement of Foreclosure and Eviction through August 19, 2020.

There shall be no initiation of a proceeding or enforcement of an eviction of any residential or commercial tenant for nonpayment of rent, or a foreclosure of any residential or commercial mortgage for nonpayment of such mortgage, owned or rented by someone that is eligible for unemployment insurance or benefits under state or federal law or otherwise facing financial hardship due to the COVID-19 pandemic for a period of sixty days beginning on June 20, 2020.

This order extends the previous protections to mortgagors and tenants (EO 202.8) which were set to expire on June 20, 2020, which includes a restriction on the enforcement of evictions and foreclosures, and adds an express restriction on commencing foreclosures and evictions. The restriction on commencement and enforcement on foreclosures and evictions now only apply to those eligible for unemployment insurance or benefits under state or federal law or otherwise facing financial hardship due to the COVID-19 pandemic.

You may continue to send new referrals during this time so that first legal documents (summons and complaint) can be prepared for immediate filing upon expiration of the stay.

Also, should the state courts begin to accept new filings prior to the August 19, 2020 expiration of this Executive Order, if a lender or servicer is able to ascertain which borrowers are not eligible for unemployment insurance or benefits under state or federal law or otherwise facing financial hardship due to the COVID-19 pandemic, we may be able to proceed to file first legal documents in Foreclosure and Eviction as well.

A copy of the full text of the order is attached and may also be found at: https://www.governor.ny.gov/news/no-20228-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency

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Roach & Lin, P.C.

New York state COVID-19 update provided by Roach & Lin, P.C.

On May 7, 2020, Governor Cuomo issued an Executive Order (EO 202.28) which provides that provides for the following:

Commencement and Enforcement of Foreclosure and Eviction through August 19, 2020:

There shall be no initiation of a proceeding or enforcement of: (1) an eviction of any residential or commercial tenant for nonpayment of rent or (2) a foreclosure of any residential or commercial mortgage for nonpayment of such mortgage, owned or rented by someone that is eligible for unemployment insurance or benefits under state or federal law or otherwise facing financial hardship due to the COVID-19 pandemic for a period of sixty days beginning on June 20, 2020.

This order extends the previous protections to mortgagors and tenants pursuant to EO 202.8, which was set to expire just prior to June 20, 2020. In addition to the previous restriction on enforcement of evictions and foreclosures, this order adds an express restriction on commencing foreclosures and evictions, but will only protect those who fit the above criteria. Lenders and servicers seeking to proceed with foreclosure during this timeframe must ascertain which borrowers are not eligible for unemployment insurance or benefits under state or federal law or otherwise facing financial hardship due to the COVID-19 pandemic.

Application of Security Deposit for Rent Arrears

In regards to landlords and tenants licensee of residential properties, this order provides that Landlords may, with the consent of the tenant or licensee, enter in to a written agreement by which the security deposit and interest that accrued on it may be used to pay the rent that is in arrears or will become due. If the amount of the deposit represents less than a full month rent payment, the consent does not constitute a waiver of the remaining rent due and owing for that month. This agreement may be executed in counterparts by email. This relief shall be provided to tenants or licensees who request it that are eligible for unemployment insurance or benefits under state or federal law or are otherwise facing financial hardship due to the COVID-19 pandemic. It shall be the tenant’s or licensee’s option to enter in to the agreement, and the landlord shall not harass, threaten or engage in any harmful act to compel this agreement. The security deposit used as payment of rent shall be replenished by the tenant or licensee to be paid at the rate of 1/12 of the amount used as rent per month- these payments shall be due and owing no less than ninety (90) days from the date of the usage of the security deposit as rent. The tenant may, at their sole option, retain insurance that provides relief for the landlord in lieu of the monthly security deposit replenishment, which must be accepted by the landlord as replenishment.

No Late Fees on Rent

No landlord, lessor, or sub-lessor or grantor shall demand or be entitled to any payment, fee or charge for late payment of rent occurring during the time period from March 20, 2020 through August 20, 2020.

A copy of the full text of the order may be found at: https://www.governor.ny.gov/news/no-20228-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency

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Roach & Lin, P.C.

New York state COVID-19 update provided by Roach & Lin, P.C.

On April 30, 2020, the Chief Administrative Judge of the New York State Unified Court System issued a memorandum, which provides for the following, effective Monday, May 4, 2020:

(1)   Expanded motion practice- new motions, responsive papers to previously filed motions, and other applications may be filed electronically in pending cases either through the NYSCEF e-filing system in jurisdictions that have it or through a new electronic document delivery system for courts where e-filing is not available. When using the new electronic document delivery system, service of the motion/application/responsive papers must all be completed by electronic means.

(2)   Appeals- Notices of appeal may be filed electronically, either through NYSCEF or through the new document delivery system.

While this memorandum allows for filings in existing/pending court cases, it should be noted that enforcement of foreclosures and evictions are still subject to the ninety-day restriction issued by Governor Cuomo, which at this time is set to expire on June 19, 2020.

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Roach & Lin, P.C.

New York state COVID-19 update provided by Roach & Lin, P.C.

The Governor of the State of New York has recently issued an Executive Order (202.22) in regards to the assessment of real property taxes and the payment of same, which provides for the following:

(1)   In regard to real property taxes, all assessment rolls that were to be filed on or before June 1, 2020 may be filed up to 30 days later than otherwise allowable;

  1. Assessing units may set a date for hearing assessment complaints that is at least 21 days after the filing of the tentative roll;
  2. Notice of the filing of the tentative roll may be published solely online so long as the date for hearing complaints is prominently displayed;
  3. In-person inspection of the tentative roll is suspended, and;
  4. Local boards of assessment review may hear complaints remotely by conference call or similar service, provided that complainants can present their complaints through such service and the public has the ability to view or listen to such proceeding.

(2)   Section 1212 of the Real Property Tax Law, to the extent necessary to allow the commissioner of taxation and finance to certify final state equalization rate, class ratios, and class equalization rates, if required, no later than ten days prior to the last date set by law for levy of taxes of any municipal corporation to which such equalization rate, class ratios, and class equalization rates are applicable;

(3)   Section 1512(1) of the Real Property Tax Law and Sections 283.291 and  283.221 of the Laws of Westchester County, are suspended to allow the County Executive to negotiate with any town supervisor or mayor of any city, to accept a lesser percentage of taxes, special ad valorem levies or special assessments which are otherwise due on May 25, provided that in no event shall any town or city be required to pay more than sixty percent. The County Executive is empowered to determine whether or not penalties for late payment or interest are able to be waived dependent on whether or not such town or city applies the County Executive’s criteria for determining hardship due to COVID-19;

a.  Section 283.221 of the Laws of Westchester County is further suspended to the extent necessary to require the supervisor of a town, to waive payment of penalties for late payment of county and county district taxes under section 283.221 up to July 15, 2020, and waive payment of penalties for late payment of town and town district taxes and assessments in the same manner, provided such town applies the County Executive’s criteria for the determination of hardship due to COVID-19;

b. Section 1512(1) of the Real Property Tax Law and any penalty provision of the tax code of a city within Westchester County is further suspended to the extent necessary to allow the mayor of that City to waive the payment of penalties for late payment of county and county district taxes and to further waive payment of penalties for late payment of city and city district taxes and assessments in the same manner, provided such city applies the County Executive’s criteria for the determination of hardship due to COVID-19;

c. Section 5-18.0(2) of the Nassau County Administrative Code, to the extent necessary to allow the Nassau County Executive to extend until June 1, 2020, the deadline to pay without interest or penalty the final one-half of school taxes upon real estate in such county.

The text of this Order may be found at: https://www.governor.ny.gov/news/no-20222-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency

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Roach & Lin, P.C.

New York state COVID-19 update provided by Roach & Lin, P.C.

On April 9, 2020, the Chief Judge of the United States Bankruptcy Court, Southern District of New York (“SDNY”), issued an Order (General Order M-545), effective immediately as to cases filed by borrowers/debtors in the SDNY under chapters 7, 11, 12, and 13. The order provides for the following:

1) Original Signature Requirement: the court suspends the requirement that a CM/ECF user secure the signer’s original signature before electronically filing a document as long as prior to filing, the CM/ECF user has verified with the signer that the signer has received the entire document to be filed and has communicated the substance and purpose of the document by reviewing the bankruptcy petition including all schedules or other papers, and

a. has obtained express written permission (i.e. by email or text) from the signer to affix the signer’s signature to the document and has retained a hard copy of the written permission;

b. has obtained in his or her possession at the time of the filing an image, photograph, or other facsimile of the signer’s signature on the signature page of the document and has retained a hard copy of the image, photograph, or facsimile; or

c. has obtained the signer’s digital signature via any commercially available digital signature software that provides signature authentication; and has instructed the signer to send or deliver the original signed paper(s) to the CM/ECF user as soon as is practicable as required by Local Bankruptcy Rule 9011-1.

The filer shall retain the form of confirmation referenced above for the later of two years or the entry of a final order terminating the case or proceeding to which the document relates.

2) Forbearance of Mortgage Debt. Any creditor/lender/mortgage holder/servicer who issued a temporary suspension of mortgage payments (forbearance) to a borrower/debtor who has a case pending in the SDNY, shall file with the Court a Notice of Temporary Forbearance. A copy of this notice is attached to the order found in the link below.

a. A creditor/lender/mortgage holder/servicer may communicate to a borrower/debtor regarding the forbearance and during the forbearance period without violating the automatic stay, and a loss mitigation order is not needed for the borrower/debtor to enter in to the forbearance agreement.

i. If the parties are unable to come to a consensual resolution regarding a forbearance agreement, either party may request the Court to supervise the request.

3) Loss Mitigation Mediations. Any deadline under the Loss Mitigation Program that had not expired as of March 16, 2020, is extended to July 1, 2020.

4) Documents Required for Meeting of the Creditors. Rather than using an original document, Trustees are permitted to accept evidence that he or she concludes is appropriate to establish the existence of a document used to identify the borrower/debtor, such as a PDF scan, photograph or screenshot of said document.

5) Expiration. The provisions of this Order will expire the earlier of (a) the entry of a further order of this Court or (b) July 1, 2020.

6) Other Cases. The Court will consider requests for similar relief on other cases where the movant can demonstrate exigent circumstances based on the COVID-19 virus pandemic.

A copy of the order and the referenced forbearance form may be found at this link: http://www.nysb.uscourts.gov/sites/default/files/m545.pdf
 

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Roach & Lin, P.C.

New York state COVID-19 update provided by Roach & Lin, P.C.

On April 8, 2020, the Chief Administrative Judge of the New York State Courts issued an Order (A0/85/20), effective April 13, 2020, directing as follows:

(1)   Trial Courts will address the below matters through remote or virtual court operations and offices:

  1. Courts will assess which pending matters can be advanced or resolved through remote court conferencing and will schedule conferences upon its own initiative or at the request of the parties where appropriate.
  2. Courts will decide fully submitted motions.
  3. Courts will resolve discovery disputes and similar matter not requiring the filing of papers.

(2)   All Video teleconferences conducted by the court or with court participation will be administered exclusively through Skype for Business.

(3)   No new nonessential matters, nor additional papers in pending nonessential matters may be filed until further notice, however the Court may file Orders in any matter as it deems appropriate.

The text of this Order may be found at: https://www.nycourts.gov/LegacyPDFS/courts/5jd/AO-85-20.pdf

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Roach & Lin, P.C.

New York state COVID-19 update provided by Roach & Lin, P.C.

On April 7, 2020, Governor Cuomo signed an executive order (Executive Order 202.14) extending certain provisions through May 7, 2020 unless otherwise modified, some of which include (1) that the period of time subject to the Statute of Limitations will be tolled for an additional thirty (30) days through May 7, 2020, subject to further extension; (2) that all in-person business and workplace restrictions, including the mandate that 100% of all non-essential workforce remain out of the workplace, is extended through April 29, 2020, subject to further extension, and (3) in addition to electronic notarizations for those that are present in the State of New York, the Order provides for the act of witnessing pursuant to Article 9 of the Real Property Law (Real Estate Transactions). A documents may be witnessed by utilizing audio-video technology through May 7, 2020, provided that:

  • The person requesting that their signature be witnessed, if not personally known to the witness(es), must present valid photo ID to the witness(es) during the video conference, not merely transmit it prior to or after;
  • The video conference must allow for direct interaction between the person and the witness(es), and the supervising attorney, if applicable (e.g. no pre-recorded videos of the person signing);
  • The witnesses must receive a legible copy of the signature page(s), which may be transmitted via fax or electronic means, on the same date that the pages are signed by the person;
  • The witness(es) may sign the transmitted copy of the signature page(s) and transmit the same back to the person; and
  • The witness(es) may repeat the witnessing of the original signature page(s) as of the date of execution provided the witness(es) receive such original signature pages together with the electronically witnessed copies within thirty days after the date of execution.

A link to the text of this Order may be found at: https://www.governor.ny.gov/news/no-20214-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency


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Roach & Lin, P.C.

New York state COVID-19 update provided by Roach & Lin, P.C.

The Unified Court System distributed the attached Press Release yesterday announcing that courts statewide now have the capacity to hear all essential and emergency court matters virtually by video or telephone.

Today, Chief Administrative Judge Marks has announced that the courts will begin to address non-essential pending cases, including tort, medical malpractice and asbestos, commercial, matrimonial, trusts and estates, felony and others, Monday, April 13th. Court conferences regarding these pending cases will need to be conducted remotely via Skype or telephone. The filing of NEW non-essential cases continues to be suspended. To read Judge Marks’s Memorandum, please see attached..

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Click the below links for more info:

NY Courts to open April 13 for non-essential services

Press Release NY Courts to open April 13 for non-essential services

Roach & Lin, P.C.

New York state COVID-19 update provided by Roach & Lin, P.C.

As you may be aware, we are continuously monitoring for updated directives from the Courts and other governmental entities in regards to the COVID-19 pandemic and its effects on conducting foreclosure related business and activity in the State of New York. 

Governor Cuomo issued two orders, dated March 20, 2020 which provide for the following, some of which had been previously discussed: 

1) The statute of limitations has been tolled from March 20, 2020 through April 19, 2020. This means for any file with an upcoming statute of limitations expiration date, the statute of limitations expiration date will be extended by 30 days. It should be noted that this will not provide for relief for loans where the statute of limitations has already expired. 

2) All New York State employers of “non-essential businesses” must reduce the in-person workforce by 100%, and work-from-home or telecommuting procedures must be utilized to the maximum extent possible.

3) There shall be no enforcement of an eviction or foreclosure, whether residential or commercial, for a period of 90 days. 

4) It shall be deemed an unsafe and unsound business practice if, in response to the COVID-19 pandemic, any Bank conducting business in the State of New York shall not grant a forbearance to any person or business who has a financial hardship as a result of the pandemic for a period of 90 days. In addition, the Chief Administrative Judge of the New York State Courts has issued an order prohibiting the county clerk’s offices and the courts from accepting any filings in all non-essential matters, including foreclosure and eviction. This is effective as of 3/22/20 and will continue until further notice.

Given the above information, as firms and courts are unable to process any portion of the foreclosure process until at least 30 days, we suggest placing your files on hold, and directing the cancellation of any scheduled sales to be held within the 90 day period. We will continue to closely monitor for changes and we will advise accordingly. 

Post by – Roach & Lin, P.C. – https://www.roachlin.com