MORTGAGE FORECLOSURE

From the CLE seminar held at the Nassau County Bar Association, courtesy of Empire Justice Center:

"Distressed Property Consultants

Upfront payment prohibited (adds Banking Law § 595-a(5)): Prohibits a “distressed property consultant” (defined in RPL § 265-b) from charging or accepting any payment for real property consulting services before the full completion of such service.

Attorneys, brokers and loan officers (amends RPL § 265-b): The 2008 Act created regulations for “distressed property consultants.” Attorneys were excluded from the definition of “distressed property consultants.” The definition is amended to exclude attorneys only “when the attorney is directly providing consulting services to a homeowner in the course of his or her regular legal practice.” 35 The 2008 Act also excluded mortgage brokers and loan services (as defined in Banking Law 12-D), however, the new law prohibits mortgage brokers and loan officers from taking any upfront fees in conjunction with activities constituting the business of a distressed property consultant. 36

Mortgage loan servicers (amends Banking Law § 590(2)(b) and (b-1))

A technical amendment is made, to comport with the 2008 Act, to include mortgage loan servicers in the list of entities that must be registered with the Banking Department. A provision also is added to allow the superintendent of the Banking Department to require registration and notifications to be made through Nationwide Mortgage Licensing System and Registry and describing how registration fees for mortgage loan servicers are to be collected and considered.

Residential Mortgage Fraud

Definition amended (amends Penal Law Article § 187.00): The 2008 Act codified “residential mortgage fraud.” The definition of “residential mortgage loan” is amended to include a loan modification (in addition to loan, agreement to extend credit and refinancing), and in the case of cooperative ownership, to include a proprietary lease from a corporation or partnership. Minor technical changes (wording) are made, as well.

Limitation on prosecution (adds Penal Law Article § 187.01): A new section is added to prohibit prosecution of anyone who applies for a residential mortgage loan who intends to occupy the residential property unless the individual acts as an accessory to the residential mortgage fraud. Minor technical amendments are made, as well.

FOOTNOTES

35 Real Property Law § 265-b(2)(b)(1)(e)(i).
36 Real Property Law § 265-b(2)(b)(1)(e)(vii)."