UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that plaintiff's application (seq. #001) for an order of reference in this foreclosure action is considered under 2009 NY Laws, Ch. 507, enacted December 15, 2009, and 2008 NY Laws, Ch. 472, enacted August 5, 2008, as well as the related statutes and case law, and is denied and this action is hereby dismissed for failure to submit evidentiary proof, including an affidavit or affirmation from one with personal knowledge, of compliance with pre-commencement notice requirements of RPAPL §1304, as well as proper proof of service of such notice by registered or certified mail and by first class mail to the last known address of the borrower as required by RPAPL §1304(2); and it is further

ORDERED that the plaintiff shall promptly serve a copy of this Order upon the defendant-homeowner(s) at all known addresses and upon all other answering defendants, via first class mail, and shall promptly file the affidavit(s) of such service with the County Clerk and annex a copy of this Order and the affidavit(s) of service as exhibits to any motion resubmitted pursuant to this Order; and it is further

In this foreclosure action, the plaintiff filed a supplemental summons and amended complaint on February 19, 2010 alleging that the defendant-homeowner, Satnarine Maharaj, defaulted in payments with regard to a May 23, 2006 mortgage in the principal amount of $199,280.00 for the premises located at 18 Lake Drive, Wyandanch, New York 11798. The original lender, Alliance Mortgage Banking Corp., had the mortgage assigned to the plaintiff by assignment dated January 28, 2010. The plaintiff now seeks a default order of reference and amendment of the caption to remove the "Doe" defendants as parties. For the reasons set forth herein, the plaintiff's application is denied and this action is dismissed.

Originally effective September 1, 2008, RPAPL §1304 required that, with regard to a "high-cost home loan," a "subprime home loan" or a "non-traditional home loan," at least 90 days before legal action is commenced against a borrower, including a mortgage foreclosure action, the lender or mortgage loan servicer must give a statutorily prescribed notice to the borrower in at least 14-point type and with the specific content set forth in the statute. As amended and effective January 14, 2010, RPAPL §1304(1) now requires the pre-commencement notice to be sent with regard to any "home loan." The statute sets forth the specific language required in the notice, which essentially warns the borrower that he or she may lose his or her home because of the loan default. It also provides information regarding assistance for homeowners who are facing financial difficulty. [*2]

RPAPL §1304(5)(a), as amended, defines "home loan" as "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."

In accordance with RPAPL §1304(2), the requisite 90-day notice must be sent to the borrower by registered or certified mail and also by first-class mail to the last known address of the borrower, and if different, to the residence which is the subject of the mortgage. Under the amendment to this provision, the notice must be sent in a separate envelope from any other mailing or notice, and is considered given as of the date it is mailed. In pertinent part, RPAPL §1304(3) states that the requisite the 90-day notice does not apply "if the borrower has filed an application for the adjustment of debts of the borrower or an order for relief from the payment of debts, or if the borrower no longer occupies the residence as the borrower's principal dwelling."

The sworn affidavit of merit from the plaintiff's attorney-in-fact states that "[w]e have determined that this loan is sub-prime," and that "[u]pon information ane (sic) belief the Defendant(s) Mortgagors reside at the property address as evidenced by the attached affidavit of service" (emphasis in original). The affidavit of service does, indeed, show that the defendant was served at the subject property. Based upon the evidentiary statements in the affidavit of merit, RPAPL §1304 and its recent amendments require the plaintiff to have sent the defendant the statutorily required 90-day notice prior to commencing the instant action.

In this regard, plaintiff's counsel states in the plaintiff's Request for Judicial Intervention (RJI), that the subject loan is a "prime/traditional/conventional" loan, but that a 90-day notice "was sent to the mortgagor on 04/28/09." Likewise, plaintiff's amended complaint, which was verified only by counsel, also states that "[i]n accordance with RPAPL Section 1304, a 90 day notice was sent to the borrower ...." Notwithstanding these representations by counsel, and despite the identification of the loan as "subprime," the plaintiff's sworn affidavit of merit concludes that "pursuant to RPAPL §1304 in effect at the time of commencement of this action, no 90 day notice was required to be sent tot he (sic) borrower ..." (emphasis added).

This application is replete with inconsistent and inaccurate proofs concerning the type of loan at issue and whether or not RPAPL §1304 was, in fact complied with. This application is an example of the scores of prior applications for orders of reference from plaintiff's counsel in this action, as well as from plaintiff-banks' attorneys in general, in which a lack of attention to detail leave this Court and, no doubt, courts throughout the State, the unenviable and overwhelming task of closely scrutinizing hundreds and thousands of foreclosure motions to effectuate the legislative protections afforded to homeowners in the throes of foreclosure. While the sheer volume of foreclosure filings themselves are enough to overwhelm the courts, the poorly and inaccurately drafted applications for orders of reference have an exponentially burdensome effect upon on the [*3]courts.

Since the only proper evidentiary proof in this case indicates that the defendant was entitled to a 90-day notice pursuant to RPAPL §1304 prior to commencement of this action, and since the plaintiff has failed to submit proper evidentiary proof of compliance with such pre-commencement requirements, the application for an order of reference is denied and the action is dismissed.

This constitutes the Decision and Order of the Court.

Dated:September 21, 2010

PETER H. MAYER, J.S.C.

[ X ] FINAL DISPOSITION[ ] NON FINAL DISPOSITION