Justice Peter Mayer of Suffolk County clarifies for bank attorneys the implications of the October 20, 2010, Administrative Order of the Chief Administrative Judge pertaining to foreclosure matter.

Nicholas M. Moccia, Esq.
Law Offices of Robert E. Brown, P.C.


On October 20, 2010, banks attorneys were reeling with the new requirements announced by the Chief Administrative Judge of the State of New York. The Order was the Court’s response to the numerous and widespread insufficiencies in foreclosure filings, which include: failure of banks and their counsel to review documents and files to establish standing and other foreclosure requisites; filing of notarized affidavits which falsely attest to such review and to other critical facts in the foreclosure process; and “robosignature” of documents by parties and counsel. The Office of Court Administration warned, “The wrongful filing and prosecution of foreclosure proceedings which are discovered to suffer from these defects may be cause for disciplinary and other sanctions upon participating counsel.”

The 10/20/10 OCA Order requires bank attorneys to file an affirmation certifying that they inspected the papers filed with the Court in the furtherance of a foreclosure action, and certify that the papers are accurate and complete in all relevant respects. Moreover, there is a continuing obligation to amend the affirmation in light of newly discovered facts following its filing. This affirmation must be filed at certain chronological thresholds during the course of a foreclosure action:

1. with a Request for Judicial Intervention for cases commenced after October 20, 2010;

2. with an application for an Order of Reference or Motion for Judgment of Foreclosure and Sale for cases commenced before October 20, 2010; and

3. within five business days before the foreclosure action for cases where a judgment has already been rendered.

In Citimortgage v. McGee, Justice Mayer of Suffolk County, clarifies these requirements as follows:

[T]he clear intent of the new Rule is to assure accountability for and accuracy of all court filings in foreclosure actions. This Court holds that after October 20, 2010, the mandatory affirmation must accompany all applications made at any and all stages of new and pending foreclosure proceedings, as a mere single filing at only one phase of the case would not comport with the intent of the Chief Administrative Judge's Order. If compliance were sufficient by filing at only one phase, papers filed subsequent to the tendering of the original affirmation could be filed with virtual impunity. Failure to submit the mandatory affirmation at all stages of the proceedings after October 20, 2010 shall result in denial of the requested relief and the potential issuance of any sanction the Court deems appropriate under the applicable circumstances.

Justice Mayer makes the new rule simple—if, at any time, bank attorneys make an application or request to the Court in a foreclosure matter, that application must be accompanied by an affirmation which complies with the 10/20/10 OCA. If they don’t comply, they may be sanctioned and their application may be denied with prejudice.

Justice Mayer is also requiring banks to indicate in their affirmations in support of any motion a paragraph indicating whether or not the statutorily required foreclosure conference was held pursuant to CPLR 3408 and, if so, when such conference was conducted.

I anticipate that the Supreme Court Justices in the five boroughs will promulgate requirements similar or identical to that of Justice Mayer, if they haven’t done so already.