Laws of New York (Last Updated: November 21, 2014) |
RPA Real Property Actions and Proceedings |
Article 14. FORECLOSURE OF MORTGAGE BY POWER OF SALE |
Section 1421. Right to seek judicial intervention; mortgagee's liability for failure to comply with this article
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1. If the mortgagee commences proceedings under this article to foreclose a mortgage, or extension, amendment, modification or consolidation thereof, executed prior to the effective date of this article, the mortgagor may by written notice to the mortgagee require that further foreclosure proceedings be conducted judicially as provided in article thirteen of this chapter. Such notice must be delivered to the mortgagee by registered or certified mail, or such other method as may be specified in the mortgage, postmarked not later than forty days after the date the mortgagor receives the notice of intention to foreclose as provided in this article, and shall state (a) the date on which the mortgage, or extension, amendment, modification or consolidation thereof, that the mortgagee seeks to foreclose was executed, and (b) that the mortgagor is exercising its right under this section to require that the foreclosure of the mortgage be conducted through the judicial process. 2. If the mortgagee commences proceedings under this article to foreclose a mortgage, or extension, amendment, modification or consolidation thereof, executed after the effective date of this article, the mortgagor, not later than forty days after the date it receives the notice of intention to foreclose as provided in this article, may apply, by order to show cause, to the supreme court in the county in which the mortgaged property is located for an order directing that further proceedings be conducted pursuant to article thirteen of this chapter, and for a temporary restraining order staying further proceedings under this article pending a hearing of the application. The application shall include one or more affidavits (a) stating whether a previous application for the same or similar relief has been made, and if so the outcome thereof, and (b) stating facts to support one or more of the following allegations: (1) that the mortgage, or extension, amendment, modification or consolidation thereof, sought to be foreclosed does not contain a provision permitting the foreclosure thereof by power of sale or other non-judicial means; (2) that the obligation secured by the mortgage is invalid or not otherwise due; (3) that the mortgagor is not in default under the mortgage or otherwise has a meritorious defense to the foreclosure thereof; (4) that the mortgagee has not complied with the terms and conditions of this article; or (5) that under the facts and circumstances, allowing the foreclosure to proceed under this article would cause an undue hardship to the mortgagor. 3. If the application is granted, the foreclosure shall, unless the court subsequently orders otherwise, proceed pursuant to article thirteen of this chapter for the judicial foreclosure of the mortgage. 4. If the application is denied, the sale may proceed pursuant to this article. 5. At any time the mortgagee may, without prejudice, voluntarily discontinue proceedings under this article and pursue such rights and remedies as may be available to it under article thirteen of this chapter. 6. After receiving the notice of intention to foreclose, an interested party other than the mortgagor may petition the court for relief only pursuant to the provisions of article sixty-three of the civil practice law and rules. The court shall apply the standards for preliminary injunctive relief and shall consider whether granting the relief requested will prejudice the substantial rights of any party or unduly delay the adjudication of such rights. 7. Any person entitled to receive notice of the intention to foreclose or notice of sale under this article may recover from the mortgagee any damages caused by the failure of the mortgagee to comply with the procedures and conditions set forth in this article. * NB Repealed July 1, 2009