"Out of state notaries who notarize affidavits(of service)must be accompanied by a certification of the notary. I wonder how many foreclosures are involved in this mess! "

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*** This section is current through 2013 released chapters 1-16, 50-55 ***

CIVIL PRACTICE LAW AND RULES 

ARTICLE 23.  SUBPOENAS, OATHS AND AFFIRMATIONS

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NY CLS CPLR § 2309 (2013)

§ 2309.  Oaths and affirmations

   (a) Persons authorized to administer.  Unless otherwise provided, an oath or affirmation may be administered by any person authorized to take acknowledgments of deeds by the real property law. Any person authorized by the laws of this state to receive evidence may administer an oath or affirmation for that purpose. An oath to a juror or jurors may be administered by a clerk of court and his deputies. This section shall not apply to an oath of office.

(b) Form.  An oath or affirmation shall be administered in a form calculated to awaken the conscience and impress the mind of the person taking it in accordance with his religious or ethical beliefs.

(c) Oaths and affirmations taken without the state.  An oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if such deed had been acknowledged before the officer who administered the oath or affirmation.

(d) Form of certificate of oath or affirmation administered by officer of the armed forces of the United States.  The certificate of an oath or affirmation administered within or without the state or the United States, by an officer of the armed forces of the United States authorized by the real property law to take acknowledgment of deeds, shall state:

1. the rank and serial number of the officer before whom the oath or affirmation is taken and the command to which he is attached;

2. that the person taking the oath or affirmation was, at the time of taking it, a person enlisted or commissioned in or serving in or with the armed forces of the United States or the dependent of such a person, or a person attached to or accompanying the armed forces of the United States; and

3. the serial number of the person who takes, or whose dependent takes the oath or affirmation, if such person is enlisted or commissioned in the armed forces of the United States. The place where such oath or affidavit is taken need not be disclosed.

HISTORY:

   Add, L 1962, ch 308, § 1, eff Sept 1, 1963.

   Sub (a), amd, L 1964, ch 287, § 1, eff Sept 1, 1964.

   Sub (c), amd, L 1963, ch 282, § 2, eff Sept 1, 1963.

   Sub (d), add, L 1963, ch 532, § 14, eff Sept 1, 1963.

   Earlier statutes and rules: CPA §§ 357-365; RCP 53; CCP §§ 443, 842, 843, 845-850, 1016, 2 RS 284 § 49; 2 RS 384 § 44; 2 RS 407 §§ 82-86; 2 RS 408 § 89; 2 RS 552 § 11; Gen Rules Pr 18.

NOTES:

Advisory Committee Notes

   The first sentence of subd (a) is based upon § 12 of the Gen. Const. Law, which deals with oaths on affidavits. The persons named in former CPA §§ 357, 359 as empowered to take oaths were, for the most part, the same as those specified in §§ 298-301 and 313-a of the Real Property Law. The only discrepancies are that city magistrates were named in § 357 of the CPA and are not included in § 298 of the Real Propery Law; that recorders are mentioned in § 298 of the Real Property Law but not in the former CPA; and that, while persons enlisted or commissioned in the armed forces might have administered oaths under CPA § 359, only officers in the armed forces can take acknowledgments under § 300 of the Real Property Law. City magistrates obtain the power they need under the second sentence of this subdivision, discussed below. For the sake of uniformity, and in accordance with the provisions of the General Construction Law, the list of persons in the Real Property Law has been followed. See the similar provisions of rule 3113(a) 2 and 3 dealing with persons before whom a deposition may be taken outside the state. The omission of the provision of the second sentence of former CPA § 359 regarding military affidavits effects no change in former law since the provision also appears in § 300 of the Real Property Law, and is thus included in the reference made by this subdivision. This subdivision is not exclusive. The many specific grants of power to administer oaths contained in the substantive laws of the state are unaffected by it. Some statutory provisions limit the class of persons who may administer a particular oath. This subdivision does not affect these statutes in view of the phrase "unless otherwise provided." The second sentence of this subdivision is derived from the first sentence of former CPA § 358 without change in substance. An official's authority to administer oaths under this sentence is parallel to his power to issue subpoenas pursuant to § 2302. Former CPA § 358 was taken verbatim from § 843 of the Code of Civil Procedure, which was derived, without change, from § 843 of chapter 416 of the laws of 1877. Prior to that, the revised statutes provided that "[w]henever applications shall be made to the commissioners of the landoffice, the canal board, canal commissioners, or any of them, or to any other public officer, to do any act in an official capacity, and such board or officer shall require information or proof, to enable them or him to decide on the propriety of doing such act, such information or proof may be required to be given by affidavit and any member of such board, or such officer, may administer all necessary oaths for that purpose." 3 NY Rev Stat c 8, tit 17, § 11 (1st ed 1829). While this provision was essentially embodied in the first sentence of CPA § 358, the derivation and meaning of the last sentence of such former section was not entirely clear. It appeared to authorize an official to use affidavits. If it was read to authorize the official to administer the oath on affidavits he might have received, it added little to the first sentence; and if read literally it had no relevance to oaths, but embodied a general rule as to the form of proof before administrative agencies. This sentence was omitted from this subdivision with no intention to deprive officials of power to utilize affidavits as proof in performing their duties. See 1 Benjamin, Administrative Adjudication in New York 181-194 (1942); Richardson, Evidence § 213 (8th ed, Prince 1955). The exceptions stated in the third sentence are similar to those in CPA § 357; § 357 also excluded oaths administered to witnesses at a trial but such oaths have been integrated into this subdivision. A body or court may limit the class, or specify the person, who may administer oaths before it as part of its power to control its proceedings, so long as the person or class is authorized to give the oath under this subdivision or any other provision of law.

   Subd (b) of this section was based on Arizona law. Ariz Rev Stat Ann § 12-2221 (1956). Similar provisions are to be found in other jurisdictions. See Ind Ann Stat § 2-1711 (1946); Mo Ann Stat § 492.040 (1952); Tex Rev Civ Stat art 25 (1947). It has long been the practice to vary the forms and mode of administration of the oath to conform to the beliefs of the person taking it. See Tyler, Oaths; Their Origin, Nature, and History 89-96 (1934); 6 Wigmore, Evidence §§ 1816-1820 (3d ed 1940). This was recognized in CPA §§ 360-364. Thus, while a usual form of oath is said to have crystallized through tradition (see Bookman v City of New York, 200 NY 53, 93 NE 190 (1910)), the general requirements rather than particular forms or modes of administration of the oath have been set forth in this subdivision. The common denominator of the oaths and affirmations formerly described in the CPA was a solemn ceremony; the case law requires an unequivocal act of assent to tell the truth. See O'Reilly v People, 86 NY 154 (1881); Bookman v City of New York, supra; N. Y. Att'y-Gen., Ann Rep 317-20 (1929). Former CPA § 365 has been omitted. The last clause of that section, which empowered the person administering the oath to inquire of the person to be sworn what "peculiar ceremonies" he deemed most obligatory, is clearly implied in this subdivision. The first clause of former CPA § 365 which empowered the court or officer to examine a person to determine if he was competent, is unnecessary. This is an essential and inherent power which cannot be questioned. See, e.g., 2 Wigmore, Evidence §§ 487, 497 (3d ed 1940); Richardson, Evidence § 117 (8th ed, Prince 1955).

   Subd (c) of this section is based on the last part of the first sentence of former CPA § 359. So much of the remainder of that section as dealt with the authority to administer oaths outside the state is included in subd (a) of this section, and the provisions regarding translations are dealt with in article 21.

Revision Notes

   [1963, ch 282] This amendment was recommended by the Law Revision Commission. See Leg Doc (1963) No. 65 (I). It amends Real P Law § 312 for the purpose of simplifying the authentication of certificates of notaries of other states and of territories and possessions of the United States. A conforming change is made in § 2309(c) of the Civil Practice Law and Rules.

Treatises & Practice Guides:

  

Matthew Bender's New York Civil Practice:

      Weinstein, Korn & Miller, New York Civil Practice: CPLR Ch. 2309, Oaths and Affirmations

      CPLR Manual § 16.13 Oaths and affirmations

      1 Carrieri, Lansner, New York Civil Practice: Family Court Proceedings § 2.03

      1 Cox, Arenson, Medina, New York Civil Practice: SCPA P 102.01; 2 Cox, Arenson, Medina, New York Civil Practice: SCPA P 708.04

      Bender's New York Evidence - CPLR § 2.00 Competency of Witnesses

      Bender's New York Evidence - CPLR § 9.12 Governmental and Judicial Facts

      Bender's New York Evidence - CPLR § 20.01 Private Writings and Documents

  

Matthew Bender's New York Practice Guides:

      1 New York Practice Guide: Probate and Estate Administration § 14.08

  

Warren's Weed New York Real Property:

      Warren's Weed: New York Real Property §§ 2.06, 2.92

Practice Forms:

Bender's Forms for the Civil Practice Form No. CPLR 2309:1 et seq

LexisNexis Forms FORM 75-CPLR 2309:1--Authenticating Certificate Attached to Affidavit Taken in Other State

LexisNexis Forms FORM 75-CPLR 2309:2--Certificate of Conformity of Oath or Affirmation Taken Without the State

LexisNexis Forms FORM 75-CPLR 2309:3--Certificate of Oath or Affirmation Administered by Officer of Armed Forces of the Untied States

Related Statutes & Rules:

  

New York References:

      Conduct of examination in disclosure, CLS CPLR § 3113

      Power of arbitrator to administer oaths, CLS CPLR § 7505

      Powers of notaries and commissioners of deeds, CLS Exec §§ 132, 135, 138- 142-a

      Construction of words affidavit, oath and swear, CLS Gen Const §§ 12, 36

      Power to administer oaths, CLS Pub O § 61

  

Federal References:

      Power to administer oaths in connection with deposition proceedings in United States District Courts, Rule 28(a) of Federal Rules of Civil Procedure, USCS Court Rules

      Oath administered to witness in depositions upon oral examination in United States District Court proceedings, Rule 30(c) of Federal Rules of Civil Procedure, USCS Court Rules

      Affirmation in lieu of oath in United States District Courts, Rule 43(d) of Federal Rules of Civil Procedure, USCS Court Rules

      Subpoena in United States District Court, Rule 45(a) of Federal Rules of Civil Procedure, USCS Court Rules

      Administration of oaths and affirmations in United States Tax Court, 26 USCS § 7456

      Authority of federal judges and justices to administer oaths, 28 USCS § 459

      Administration of oaths and acknowledgments by Clerk of Court, 28 USCS § 953

      Administration of oaths and acknowledgments in Court of Federal Claims, 28 USCS §§ 2503, 2504

      Administration of oaths and affirmations without fees, 5 USCS § 2904

Research References & Practice Aids:

  

Jurisprudence:

      1 NY Jur 2d Acknowledgements, Affidavits, Oaths, Notaries, and Commissioners §§ 42--44, 59, 60

      5 NY Jur 2d Arbitration and Award § 139

      28 NY Jur 2d Courts and Judges § 479

      44A NY Jur 2d Disclosure § 218

      48 NY Jur 2d Domestic Relations § 2032

      49 NY Jur 2d Elections § 299

      58A NY Jur 2d Evidence and Witnesses § 830

      73A NY Jur 2d Jury § 116

      58 Am Jur 2d, Oath and Affirmation §§ 1 et seq

      13B Am Jur Legal Forms 2d, Oath and Affirmation, Forms 189:11-189:15

      1A Am Jur Pl & Pr Forms (Rev), Acknowledgments, Forms 1 et seq

      25A Am Jur Pl & Pr Forms (Rev), Witnesses, Forms 136-139

  

Annotations:

      False oath or account as bar to discharge in bankruptcy proceedings.  59 ALR2d 791

      Disqualification of attorney, otherwise qualified, to take oath or acknowledgement from client.  21 ALR3d 483

  

Texts:

      1 Frumer & Biskind, Bender's New York Evidence--CPLR § 2.00; 4 Frumer & Biskind, Bender's New York Evidence--CPLR § 9.12; 5 Frumer & Biskind, Bender's New York Evidence--CPLR § 20.01

Case Notes:

I. UNDER CPLR 1.  In general 2.--10.  [Reserved for future use]

II. UNDER FORMER CIVIL PRACTICE LAWS

A. In General 11.  Generally

B. Formalities 12.  Generally 13.  Effect of defective jurat 14.  Curing defect nunc pro tunc 15.  Presumptions

C. Who May Administer Oaths 16.  Generally 17.  Clerk of court 18.  Commissioner of deeds 19.  Comptroller 20.  Notary public 21.  Police officer

D. Necessity for Oath or Affirmation 22.  Generally 23.  Infants 24.  Board of canvassers 25.  Board of civil service examiners

E. Competency to Take Oath 26.  Generally 27.  Necessity for preliminary examination 28.  Examination before trial

F. Oaths Taken Outside the State 29.  Generally 30.  Authentication of oath of service outside state or county 31.  Consular officer 32. -- Notary public 33. -- Sheriff

I. UNDER CPLR

 1. In general

One insane or mentally ill is not per se disqualified from testifying; he may give evidence provided he has sufficient intelligence to understand nature of oath and to give a reasonable account about the subject of interrogation. A witness' capacity is presumed and if objected to, it is for judge in his discretion to determine it.  People v Rensing (1964) 14 NY2d 210, 250 NYS2d 401, 199 NE2d 489 (superseded by statute as stated in People v Arthur (1997, Sup) 175 Misc 2d 742, 673 NYS2d 486).

Only an attorney, physician, osteopath or dentist authorized to practice within New York can serve and file an affirmation bearing his signature alone in lieu of and with the same force and effect as an affidavit; moreover, even those persons who are statutorily allowed to use such affirmations cannot do so when they are a party to an action and, to be effective, such an affirmation must be made before a notary public or other authorized official.  Slavenburg Corp. v Opus Apparel, Inc. (1981) 53 NY2d 799, 439 NYS2d 910, 422 NE2d 570.

The trial court properly invalidated the petition on grounds that witnesses on two signature sheets failed to comply with the duty to administer oaths upon the taking of signatures on such sheets, where all one witness did was inform each signatory that she had to "swear" him and have each signatory state that he was who he purported to be, and where the witness to the other sheet did the same thing without any mention of a need to administer an oath, but where the nominating petition nevertheless contained more signatures than the amount required to sustain the candidate's position on the ballot.  Andolfi v Rohl (1981, 2d Dept) 83 App Div 2d 890, 442 NYS2d 402, app den (1981) 54 NY2d 603 and app den (1981) 54 NY2d 768, 443 NYS2d 60, 426 NE2d 751.

The trial court properly validated certain signatures that had been taken by a notary public on designating petitions nominating certain candidates for a party primary election, where the notary complied with the requirements of administering an oath pursuant to CPLR § 2309(b) in that he administered the oath in a form "calculated to awaken the conscience and impress the mind of the person taking it in accordance with his religious and ethical beliefs," where the signature sheets contained the notarial statement required by Elec Law § 6-132(3), and where the signatories read the statement and understood that they were affirming the statement in the petition as true.  Quintyne v Canary (1984, 2d Dept) 104 App Div 2d 473, 478 NYS2d 979.

Although both pages of out-of-state affidavit in opposition to defendants' motion for summary judgment in medical malpractice action should have been accompanied by certificate authenticating authority of oath administrator, court properly refused to reject affidavit for technical failure to comply with CLS CPLR § 2309(c), where only result would have been in further delay because affidavit could have been given nunc pro tunc effect once properly acknowledged.  Nandy v Albany Medical Center Hosp. (1989, 3d Dept) 155 App Div 2d 833, 548 NYS2d 98.

Written statements submitted by defendant to show reasonable excuse for default and meritorious defense qualified as oaths, even though neither statement said that defendant had been sworn, where statements said that defendant had read them and that they were "true, factual and voluntarily given," and they were also notarized. Collins v AA Trucking Renting Corp. (1994, 1st Dept) 209 App Div 2d 363, 618 NYS2d 801.

Form of oath is flexible and is sufficient if it is calculated to awaken conscience and impress mind of person taking it in accordance with his or her religious or ethical beliefs. People v Wilson (1998, 3d Dept) 255 App Div 2d 612, 679 NYS2d 732, app den (1999) 93 NY2d 981, 695 NYS2d 68, 716 NE2d 1113.

In prosecution for sexual abuse, sodomy, and child endangerment, arising from defendant's involvement with 3 girls of ages 7 to 9, court's colloquy with 7-year-old victim satisfied requirements of oath where that victim unequivocally indicated that she understood that she had to tell truth and that if she did not, she was liable to be punished. People v Wilson (1998, 3d Dept) 255 App Div 2d 612, 679 NYS2d 732, app den (1999) 93 NY2d 981, 695 NYS2d 68, 716 NE2d 1113.

In mortgage foreclosure action, defendant's "affidavit of non-signature" did not raise issue of fact regarding authenticity of her purported signatures on note and mortgage, where each document on its face was properly subscribed and bore acknowledgment of notary public, triggering presumption of due execution which was unrebutted by clear and convincing evidence.  Midfirst Bank v Rath (2000, 4th Dept) 270 AD2d 932, 706 NYS2d 651.

In a proceeding pursuant to N.Y. Elec. Law § 16-102, the trial court properly invalidated 20 signatures on a candidate's designating petition because the notaries public witnessing the signatures had neither taken the oaths of the signatories nor obtained any statements from them as to the truth of the statements to which they subscribed their names. Matter of Imre v Johnson (2008, 2d Dept) 54 App Div 3d 427, 863 NYS2d 473.

Motion for summary judgment in favor of an alleged creditor seeking payment on a creditor card debt was error because, inter alia, affidavits provided by the alleged creditor were both signed and notarized outside of New York, were not accompanied by the required certificates of conformity, and the alleged creditor made no attempt to rectify this defect. PRA III, LLC v Gonzalez (2008, 2d Dept) 54 App Div 3d 917, 864 NYS2d 140.

Trial court erred in excluding the affidavits of two affiants, even though they were not accompanied by a certificate of conformity required by N.Y. C.P.L.R. 2309(c), as the absence of a certificate of conformity for an out-of-state affidavit was not a fatal defect. Fredette v Town of Southampton (2012, 2d Dept) 95 App Div 3d 940, 944 NYS2d 206, lv to app den (2012, NY) 2012 NY Slip Op 83570, 2012 NY LEXIS 2084.

Failure to show authenticating certificate on out-of-state affidavit and to show plaintiff's corporate status were amendable irregularities and did not reach the stature of jurisdictional defect and motion to dismiss complaint for lack of jurisdiction was properly denied.  Mercantile Nat'l Bank v Wismer (1965) 48 Misc 2d 275, 264 NYS2d 850.

Where authenticating certificate prescribed by CPLR § 2309(c) was missing from Illinois affidavit offered in support of plaintiff's motion for summary judgment although the defect could have been cured by amendment, affidavit was not properly before the court.  Mercantile Nat'l Bank v Wismer (1965) 48 Misc 2d 275, 264 NYS2d 850.

Defendant's objection to out-of-state depositions that they were not accompanied by certificates authenticating the commissions of the notaries public thereto as required by CPLR § 2309, subd c, which objection defendant waived under CPLR § 3116, subd e by not making timely motion to suppress under CPLR § 3103, subd c, could not be asserted for reversal on appeal where the absence of such certificates, which were patently in the nature of documentary evidence, was a defect susceptible to correction nunc pro tunc at trial.  King v Brown (1972) 72 Misc 2d 560, 340 NYS2d 260.

Under CPLR § 3116, subd e, defendant in personal injury action waived his objection that out-of-state depositions were not accompanied by certificates authenticating the commissions of the notaries public thereto as required by CPLR § 2309, subd c, where defendant failed to move for suppression of said depositions under CPLR § 3103, subd c during the four month period preceding trial.  King v Brown (1972) 72 Misc 2d 560, 340 NYS2d 260.

Verification of tax roll was properly sworn by a notary public, who was an "officer of the county" authorized to administer oaths within meaning of Real Property Tax Law § 514.  Crockford v Zecher (1973) 74 Misc 2d 1067, 347 NYS2d 105, affd (1974, 4th Dept) 45 App Div 2d 914, 358 NYS2d 978.

Instrument which law firm alleged was power of attorney executed by decedent's widow, who was resident of Albania and who allegedly executed instrument there, failed to comply with section of Real Property Law setting forth requirements for certificate of authentication accompanying certificate of acknowledgment made for notary in foreign country, despite "authentication" made by deputy president of the District Court of Fier, Albania, and by deputy president of the Supreme Court of Albania.  In re Estate of Giannopoulos (1977) 89 Misc 2d 961, 392 NYS2d 828.

Court granted plaintiff's motion for default judgment based on affidavit executed in Texas but not accompanied by certificate authenticating authority of person who administered oath, where oath was administered by notary public. Firstcom Broad. Servs. v New York Sound Inc. (2000, Civ Ct) 184 Misc 2d 524, 709 NYS2d 329.

Bank's petition to confirm an arbitration award under N.Y. C.P.L.R. §§ 7510, 7514 was improperly denied because the defect due to the fact that the bank's supporting affidavit was notarized by a Maryland notary public and not accompanied by a certificate of conformity under N.Y. C.P.L.R. § 2309(c) and N.Y. Real Prop. Law § 299-a(1) was merely a defect in form that could be corrected nunc pro tunc and did not prejudice a substantial right of respondent under N.Y. C.P.L.R. §§ 2001, 2101(f). MBNA Am. Bank, N.A., Matter of v Stehly (2008, Sup App T) 19 Misc 3d 12, 855 NYS2d 814.

Exchange by the court with a doctor prior to his testifying at a fact finding hearing on a neglect petition was insufficient to comply with N.Y. C.P.L.R. § 2309(b) as the doctor stated that he did not hold that there was such a thing as the truth; the exchange was supplemented with a request that the doctor affirm that his testimony would be accurate, correct, and complete and a question advising him of the penalties of perjury as the oath was not required to take a particular form under § 2309(b) and N.Y. Gen. Constr. Law § 36. Matter of Breanna M. (2009, Fam Ct) 23 Misc 3d 341, 870 NYS2d 779.

In an assignee's action against a vehicle lessee, the assignee was not entitled to default judgment because (1) an affidavit of service of the summons with notice, executed in Maryland, did not comply with N.Y. C.P.L.R. 2309(c), requiring a certificate of conformity, and (2) the default judgment motion had no affidavit stating notice of default and a copy of the summons were sent to the lessee in a "personal and confidential" envelope required by N.Y. C.P.L.R. 3215(g)(3)(i). Bloomingdale Rd. Judgement Recovery v Wise (2010, Sup) 29 Misc 3d 1078, 912 NYS2d 385.

Bank's failure to attach a certificate of conformity under N.Y. Real Prop. Law § 299-a for oaths taken in states other than New York did not render the moving papers and the affidavit inadmissible proof under N.Y. C.P.L.R. 2309 as the absence of a certificate of conformity for oaths taken out of New York but in sister states was a mere irregularity, not a fatal defect, which could be ignored in the absence of a showing of actual prejudice. LaSalle Bank, NA v Pace (2011, Sup) 31 Misc 3d 627, 919 NYS2d 794.

In a case to enforce a foreign judgment, the creditor's apparent failure to include with her affidavit the certificate authenticating the authority of the one administering the oath which should have accompanied her out-of-state affidavit was not a fatal defect; the debtor had not disputed the authority of the notary or the veracity of the statements in the affidavit, nor had he demonstrated any prejudice resulting from the defect. Sparaco v Sparaco (2003, App Div, 3d Dept) 765 NYS2d 683.

Status of two defense witnesses as officers of the court provided no basis for dispensing with a formal oath, as all persons testifying in a civil action had to go through a swearing ceremony pursuant to N.Y. C.P.L.R. 2309(b). Trensky v Johnson (2003, Sup App T) 770 NYS2d 816.

Because the victim's version of events was repeatedly bolstered and because the prosecutor veered too far into an impermissible discussion in front of the jury regarding a witness's religious beliefs when questioning the witness about a N.Y. C.P.L.R. 2309(b) affirmation/oath, the errors were not harmless. People v Caba (2009, App Div, 3d Dept) 887 NYS2d 709.

Mortgagee's failure to comply with N.Y. C.P.L.R. 2309(c) in submitting various documents, including, among others, the corrective assignment, which were notarized outside the State but not accompanied with a certificate in conformity with § 2309(c), was not a fatal defect, as such certification could be provided nunc pro tunc, N.Y. C.P.L.R. 2001. U.S. Bank Natl. Assn. v Dellarmo (2012, App Div, 2d Dept) 942 NYS2d 122.

Assignment of judgment was ineffective because, inter alia, it was not accompanied by a certificate of conformity establishing the authority of the notary to take the acknowledgment. Chase Bank USA, N.A. v Cardello (2010, Civ Ct) 243 NYLJ 48, 896 NYS2d 856.

 2.--10. [Reserved for future use]

II. UNDER FORMER CIVIL PRACTICE LAWS

A. In General

 11. Generally

An oath irregularly administered upon a book other than the holy evangelist, the parties administering it and taking it supposing it was the Bible, is a valid oath.  People v Cook (1853) 8 NY 67.

To constitute a valid oath for the falsity of which the affiant may be convicted of perjury, there must be some unequivocal and present act, in presence of an officer authorized to administer oaths, whereby the affiant takes upon himself the obligation of an oath. Where a person delivered to such an officer a paper, purporting to be the affidavit of the person so delivering it, beginning with the usual form "C. O'R.," (the person in question), "being duly sworn, saith," and subscribed by him; and the officer, without any other statement or act on the part of the person so delivering, signed his name to a jurat prepared for the purpose, and the paper was subsequently used. Held, that the person so purporting to have sworn to the affidavit could not be convicted of perjury.  O'Reilly v People (1881) 86 NY 154.

Whatever the form adopted in administering an oath, it must be in the presence of an officer authorized to administer it, and it must be an unequivocal and present act by which the affiant consciously takes upon himself the obligation of an oath.  Bookman v New York (1910) 200 NY 53, 93 NE 190.

B. Formalities

 12. Generally

Dissents filed under the Mortgage Commission Act (Laws of 1935, chap 19, § 7) were valid, although county clerk's certificates authenticating or attesting the signatures of the various notaries were not attached.  In re Lido Club Hotel (1938) 169 Misc 522, 7 NYS2d 619.

Affidavit, taken before notary in New York city who adds to his name, "Notary Public, Kings County, N. Y.," is good.  Estate of King, 4 Month L Bull 56.

A jurat in the usual form subscribed and sworn to in the presence of a vice consul. Held, sufficient.  City Bank v Lumley, 28 How Pr 397.

 13. Effect of defective jurat

Unless accompanied by the certificate as to official character and genuineness of signature the affidavit is a nullity.  Cream City Furniture Co. v Squier (1893) 2 Misc 438, 21 NYS 972.

An affidavit although not sufficiently authenticated, to secure its admission in a court in evidence may properly be considered on a motion to vacate an attachment on the papers upon which it was granted as constituting the source from which the plaintiff derived the information which she alleged in the affidavit.  Mallon v Rothschild (1902) 38 Misc 8, 76 NYS 710.

A judge is without jurisdiction to grant an order of arrest upon an affidavit sworn to in another state, without the certificate as to the official character and genuineness of the signature of the officer administering the oath.  Marks v Goetchius (1908) 60 Misc 143, 112 NYS 1009.

An affidavit executed in another state will not be considered if it has no certificate of the county clerk annexed, where taken, showing the notary to have been authorized to administer oaths.  In re Mt. Vernon Dye Casting Corp. (1926) 127 Misc 169, 216 NYS 317.

Where the affidavit of a nonresident defendant in support of his motion to vacate service of a summons upon him pursuant to CPA §§ 232, 233 (§§ 313, 314, 315, 3012(c), Rule 320(a) herein), was not authenticated as required by CPA § 359, it was not considered.  Whitman v Vullo (1922, Sup) 197 NYS 577.

An order made on motion on which incompetent affidavit has been read under objection, will not be reversed therefor where the same facts stated therein are stated in other affidavits.  Thalheimer v Hays (1886, NY) 42 Hun 93, affd (1887) 107 NY 673, 14 NE 609.

A defective certificate to jurat of affidavit taken out of the state will avoid an order of arrest granted thereon.  Harris v Durkee (1884) 50 Super Ct (18 Jones & S) 202; Bowen v Stilwell, 9 Civ Proc 277.

 14. Curing defect nunc pro tunc

Judgment in foreclosure against nonresident could be made valid by an order nunc pro tunc curing defect in affidavit of service of summons and complaint consisting in failure to attach certificate of secretary of foreign state as to notary's power to act.  Kelly v Schramm (1921) 197 App Div 377, 189 NYS 629.

 15. Presumptions

Where an affidavit by its venue, purports to have been taken in the city and county of New York, the presumption is that the person signing himself commissioner of deeds is such in said place.  People ex rel. Morgenthau v Cady (1887) 105 NY 299, 11 NE 810.

C. Who May Administer Oaths

 16. Generally

Where the statute directs that the affidavits shall be made before some officer authorized to administer oaths, it must be made before an officer generally authorized to administer oaths.  Christman v Floyd, 9 Wend 340.

 17. Clerk of court

The oath in a proceeding for justification of bail may be administered by the clerk assigned to the court.  People v Diaz (1935) 245 App Div 767, 280 NYS 612.

 18. Commissioner of deeds

Witnesses in supplementary proceedings may be sworn by a commissioner of deeds.  Blake v Bolte (1894) 10 Misc 333, 31 NYS 124, adhered to (1895) 12 Misc 405, 33 NYS 617.

 19. Comptroller

The comptroller may, on proceedings had before him to decide the question of validity of tax sales between state and purchaser, swear witnesses produced before him, and receive affidavits, etc.  People ex rel. Ostrander v Chapin (1887) 105 NY 309, 11 NE 510.

 20. Notary public

Judicial notice was taken that notary public is officer duly authorized by law to take oaths and affidavits.  People v Browne (1945) 184 Misc 764, 54 NYS2d 759.

 21. Police officer

Policeman may not administer oath taken for information for drunken driving.  People v Sledge (1948) 192 Misc 934, 82 NYS2d 462.

D. Necessity for Oath or Affirmation

 22. Generally

The inadvertent omission of a deputy police commissioner of the city of New York to administer an oath to a witness, who testified against a patrolman upon one of three charges against him which were then being heard by the commissioner, such witness having been actually sworn and having testified as to one of the other charges, does not invalidate the proceedings where the patrolman, who must have known of the omission, made no objection and cross-examined the witness.  People ex rel. Niebuhr v McAdoo (1906) 184 NY 304, 77 NE 260.

 23. Infants

Though CPA § 365 provided for a preliminary examination of an infant to ascertain his capacity, this did not permit the court to cast off the safeguard of an oath, as unsworn testimony of a child was inadmissible in a civil case.  Stoppick v Goldstein (1916) 174 App Div 306, 160 NYS 947.

Infant's unsworn testimony is inadmissible in civil case.  Anesgart v New York (1958) 10 Misc 2d 995, 170 NYS2d 891.

Admission of unsworn testimony of infant constituted reversible error.  Schuck v Rao Electrical Equipment Co. (1959) 21 Misc 2d 290, 193 NYS2d 906.

 24. Board of canvassers

Under the provision of CPA § 358, which provided that "an officer, person, board or trustee to whom or to which application is made to do an act in an official capacity, requires information or proof to enable him or it to decide upon the propriety of doing the act, he or it may receive an affidavit for that purpose," the state board of canvassers had no power to make an inquiry as to the eligibility of candidate for state senator.  People ex rel. Sherwood v Board of State Canvassers (1891) 129 NY 360, 29 NE 345.

 25. Board of civil service examiners

A board of civil service examiners appointed by the mayor of a city has power to require applicants for examination to verify their applications, and a verification made in pursuance thereof is not extra judicial, but, if false, justifies a charge of perjury.  Foreman v Union & Advertiser Co. (1894) 83 Hun 385, 31 NYS 947.

E. Competency to Take Oath

 26. Generally

CPA § 365 cited in construction of Code Criminal Procedure § 392.  People v Klein (1935) 266 NY 188, 194 NE 402.

Plaintiff's boy companion, 12 years old, in upper grade of elementary school, was competent witness to identify automobile striking plaintiff and to state its speed.  Senecal v Drollette (1952) 304 NY 446, 108 NE2d 602.

On objection by one party that a witness called by the other is incompetent, it is the court's duty, before the proposed witness is sworn, to inquire as to his capacity, and on such examination the court may make a full inquiry of the proposed witness, or of others, as to his capacity.  Ellarson v Ellarson (1921) 198 App Div 103, 190 NYS 6.

It having been determined that a child was incapable of understanding the nature of an oath, it was likewise incapable of affirmation.  Salmon v Sunday (1929) 134 Misc 475, 235 NYS 672.

 27. Necessity for preliminary examination

It was error to put on the stand and swear witnesses under eight years of age, over objections, without an examination by the judge to ascertain their capacity and extent of knowledge.  Olshansky v Prensky (1918) 185 App Div 469, 172 NYS 856.

Infant who was 3 years and 10 months old at time of accident, and 9 1/2 years old at trial, is not incompetent as a matter of law to testify as to accident, and excluding his testimony without preliminary examination by court to determine the capacity and extent of his knowledge is reversible error.  Rittenhouse v North Hempstead (1960, 2d Dept) 11 App Div 2d 957, 205 NYS2d 564, reh den (1960, 2d Dept) 11 App Div 2d 1071, 207 NYS2d 1019, reh and app den (1960, 2d Dept) 12 App Div 2d 490, 210 NYS2d 493.

 28. Examination before trial

Preliminary examination of incompetent is condition precedent to granting or denying pretrial examination, and where failure to make preliminary examination was inadvertence on part of court and litigants, order denying motion should be modified to permit renewal of motion.  Fritsch v Central Trust Co. (1941) 262 App Div 551, 30 NYS2d 934.

Infant was directed to appear before a justice for preliminary examination as to his capacity, and if he be found competent to testify his examination was to proceed under the supervision of the justice.  Lester v Fischbein (1959, 2d Dept) 8 App Div 2d 618, 185 NYS2d 292.

Party seeking to examine infant adversary before trial is not compelled to submit proof of the infant's capacity on a motion to vacate the notice of examination since this question should be determined by the court or judicial officer before whom the testimony is offered.  Lester v Fischbein (1959, 2d Dept) 8 App Div 2d 618, 185 NYS2d 292.

Defendant, seeking pretrial examination of infant by way of notice of motion should show infant's age at time of motion and at time of accident.  Palmieri v Salsimo Realty Co. (1952) 202 Misc 251, 115 NYS2d 88.

Infant plaintiff may be examined as adverse party before trial by defendant if infant is found qualified, and it is court's duty to determine child's qualification and to protect its rights during examination.  Blagburn v Milrita Realty Corp. (1953) 204 Misc 74, 120 NYS2d 284.

Infant is ordered to appear at Special Term so that presiding justice thereat may make a preliminary determination as to infant's mental capacity to comprehend the obligation of an oath and if infant is found to have sufficient understanding thereof, he will be sworn and examined before trial but if he be found insufficient in understanding, the examination is dispensed with and the motion to examine will be denied.  Collins v Polsky (1953) 14 Misc 2d 402, 183 NYS2d 382.

In a probate proceedings, motion to take deposition of witness eighty-five years old and suffering from congested heart failure and other disabilities would be granted, notwithstanding that opposing affidavits indicated that witness was irrational where it was undisputed that witness was not an adjudicated incompetent.  In re Will of Ludlam (1957) 5 Misc 2d 159, 158 NYS2d 462.

Infant plaintiff approximately seven years of age may not be examined before trial where no preliminary examination made before court or official referee.  La Plant v Atias (1958) 10 Misc 2d 852, 170 NYS2d 896.

Before infant may be examined before trial, his competency must be determined by a court or referee.  Anesgart v New York (1958) 10 Misc 2d 995, 170 NYS2d 891.

Until preliminary examination is held to determine whether infant defendant has sufficient mentality to comprehend obligation of oath, court cannot direct infant examination before trial; preliminary examination referred to official referee who will determine items for examination.  Bennett v Ros (1950, Sup) 120 NYS2d 283.

Examination before trial of infant plaintiff under oath before notary public is improper.  Alsante v Roberts (1953, Sup) 118 NYS2d 683.

F. Oaths Taken Outside the State

 29. Generally

The words "the state" as used in CPA § 359 referred to the state of New York.  Turtle v Turtle (1898) 31 App Div 49, 52 NYS 857.

There had to be a substantial compliance with the requirement of CPA § 359, and the certificate had to state facts from which the legal inference of authority to administer the oath would flow; it also had to state that the certifying officer was acquainted with the handwriting of the officer taking the affidavit.  Brown v Stilwell, 1 NYSR 132.

The word "state" in CPA § 359 referred in each instance to the state of New York and not to the state in which the oath was taken, and such oath could have been taken by any person authorized by the laws of this state to take and certify the acknowledgment of deeds to be recorded in this state, even though he was not authorized to take the acknowledgment of deeds to be recorded in the state where he resided.  Ross v Wigg (1884, NY) 34 Hun 192.

CPA § 359 applied to foreign countries.  Ross v Wigg (1884, NY) 34 Hun 192.

Affidavit of service of order that administrator show cause why he should not be punished for contempt served in another state, taken before a judge of probate of such state. Held, invalid.  Loop v Northup (1891) 59 Hun 75, 13 NYS 144.

 30. Authentication of oath of service outside state or county

Certificate of service of summons personally without the state held not fatally defective, although stating the service was made upon the defendant "Brennan" where it was affirmatively shown that service was in fact made upon defendant Brenham, it not appearing that any person by the name of Brennan was a party to the action or had any connection with it.  Miller v Brenham (1877) 68 NY 83.

Where divorced husband, by order to show cause based on affidavit executed in Florida, but not authenticated, moved in New York to reduce alimony, lack of authenticating certificate was irregularity correctable nunc pro tunc.  Raynor v Raynor (1951) 279 App Div 671, 108 NYS2d 20.

Affidavit of service of summons without the state on foreign corporation held properly authenticated by the certificate of the proper official, showing that the person before whom the affidavit was sworn to was qualified to act at the time of administering the oath.  McCoy v Erie Forge & Steel Co. (1922) 118 Misc 851, 194 NYS 695, affd (1922) 201 App Div 570, 194 NYS 696, affd (1922) 234 NY 545, 138 NE 440.

Proof of service defective in that it did not contain certificate of proper official showing that person before whom the affidavit was sworn to in sister state was qualified to act at the time of administering the oath may be cured by appropriate motion pursuant to CPA § 105 (§§ 2001, 3025b, Rule 305(c), 2101(f) herein).  Gordon v Gordon (1959) 17 Misc 2d 734, 187 NYS2d 442.

Affidavit sworn to without the state, without certificate that officer taking it is authorized to take acknowledgments, etc., is not sufficient.  Phelps v Phelps (1884, NY) 32 Hun 642.

 31. Consular officer

Acknowledgment of service of summons in Paris, taken before U. S. vice-consul under seal of his office was sufficient without certificate of authentication.  Sperry v Fliegers (1949) 194 Misc 438, 86 NYS2d 830.

 32. --Notary public

When the verification of a petition for the examination of a party before trial is taken before a notary of another state, the official character and signature of the notary must be certified as required in the case of an acknowledgment to entitle a deed to record.  Miller v Nevins (1906) 115 App Div 139, 100 NYS 703.

Under CPA § 359 and § 240 of Real Property Law, chap 547 of 1896, an affidavit executed before a notary public of another state, could be used in this state where the clerk of the proper county of the foreign state certified that the notary public was duly authorized to take such affidavit.  Levy v Levy (1899) 29 Misc 374, 60 NYS 485.

Certificate of court clerk of court of record that person before whom affidavit was made was notary public, duly authorized by law to administer oaths, was sufficient.  Cohen v Cohen (1948) 193 Misc 1023, 86 NYS2d 168.

Complaint in bastardy proceeding, verified before an Illinois notary public, could not be used as basis for issuance of warrant against defendant where it lacked certificate of authentication.  Schon v Ortner (1960) 21 Misc 2d 612, 196 NYS2d 1008.

Certificate of notice was fatally defective where it failed to show that the notary was authorized to take and certify the acknowledgment and proof of deeds.  Leavitt v Williams (1914, Sup App T) 150 NYS 667.

 33. --Sheriff

Court acquired jurisdiction of foreclosure action notwithstanding affidavit of deputy sheriff who personally served summons without the state was deficient in that it lacked the certificate of the secretary of state wherein service was had, showing the notary's power to act, where amended affidavit supplying the omitted certificate was subsequently filed nunc pro tunc.  Kelly v Schramm (1921) 197 App Div 377, 189 NYS 629.

A certificate of a sheriff who makes service out of his own county is of no avail. The proof should be by affidavit.  Farmers' Loan & Trust Co. v Dickson, 17 How Pr 477, 9 Abb Pr 61.

So in case of service by a sheriff in another state.  Thurston v King, 1 Abb Pr 126; Morrell v Kimball, 4 Abb Pr 352.

Forms:

Form 1 -- County Clerk's Certificate of Authentication of Affidavit Taken in a Foreign State

Form 2 -- Certificate of Authentication by Clerk of Court of Affidavit Taken Without the State

Form 3 -- Certification of Translation of Oath or Affidavit in Foreign Language, and of Designation of Translator

Form 4 -- Oath of Witness

Form 5 -- Oath of Interpreter

Form 6 -- Oath Administered Without Gospels

                                    Form 1 

County Clerk's Certificate of Authentication of Affidavit Taken in a Foreign State

 

  State of -1---

 County of -2---    ss.

   I, -3---, clerk of -4--- County, in the State of -5--- do hereby certify that -6---, who took the annexed affidavit, was at the time of taking the same, a notary public in and for -7--- County, residing in said county and duly authorized by the laws of said State to take acknowledgment or proof of deeds to be recorded therein; that I am acquainted with the handwriting of the said -8---, and that I verily believe that the signature to the original certificate is genuine. [If not acquainted with such handwriting, the authenticating officer should state that he has compared the signature to the original certificate, with that deposited in his office by such person.]

   In Witness Whereof, I have hereunto set my hand and official seal this -9- day of -10---, 20-11-.

                                                        [Signature of clerk]

                                       [Print signer's name below signature]

 

[Seal]

                                    Form 2 

Certificate of Authentication by Clerk of Court of Affidavit Taken Without the State

 

  State of -1---

 City of -2---      ss.

 County of -3---

   I, -4---, clerk of the -5--- in the State of -6---, and clerk of the -7--- court, the same being a court of record in or of the aforesaid County [City or Parish], having by law a seal, do hereby certify that -8---, by whom the foregoing affidavit was taken, and whose name is subscribed thereto, was at the time of taking the same a -9---, duly commissioned and sworn and authorized by the laws of said State to take the acknowledgment and proof of deeds to be recorded therein, and that I am well acquainted with his handwriting, and verily believe that the signature to the foregoing certificate is genuine. [If not acquainted with such handwriting, the authenticating officer should state that he has compared the signature to the original certificate, with that deposited in his office by such person.]

   In Witness Whereof, I have hereunto set my hand and affixed my official seal this -10- day of -11---, 20-12-.

                                                        [Signature of clerk]

                                       [Print signer's name below signature]

 

[Official seal of clerk of court]

                                    Form 3 

Certification of Translation of Oath or Affidavit in Foreign Language, and of Designation of Translator

 

[The following is to be attached to the oath or affidavit and the certification thereof in the foreign language and the translation thereof.] 

 

State of New York 

County of -1---

   -2---, being duly sworn, deposes and says:

   1. I was designated by Hon. -3--- [Justice of the Supreme Court of the State of New York, or of the County Court, County of -4---, or Surrogate of the Surrogate's Court -5--- County] to make the foregoing translation in the English language of the affidavit, and the certification thereof hereto annexed.

   2. I hereby certify that the foregoing translation is a true and accurate English translation of said affidavit hereto annexed in the [Italian] language, and of the whole thereof together with the certification thereof.

                                                                   -6---------

                                       [Print signer's name below signature]

                                                                  [Deponent]

 

Sworn to before me this -7- 

day of -8---, 20-9-. 

   -10--- Justice [of the Supreme Court or County Court or Surrogate of Surrogate's Court.] 

 

State of New York 

County of -11---

   I -12---, a Justice of the Supreme Court of the State of New York [or other judicial officer who made the designation], do hereby certify that I designated -13---, who is named in and who made the foregoing certificate annexed to the translation of the annexed affidavit and the certification thereof made in the [Italian] language, to make such translation, and that said certificate was signed, acknowledged and certified under oath by said -14---, before me.

   IN WITNESS WHEREOF I have hereunto set my hand and the seal of said [Supreme, or County or Surrogate's] Court this -15- of -16---, 20-17-.

                                                                  -18---------

                                       [Print signer's name below signature]

                                                          [Judicial officer]

 

[Seal]

                                    Form 4 

                                Oath of Witness

   You do solemnly swear to testify the truth, the whole truth and nothing but the truth, as to the matters respecting which you are to be examined, so help you God. [I do.] 

                                    Form 5 

                              Oath of Interpreter

   You do solemnly swear that you will truly and faithfully interpret the oath and interrogatories to be administered to -1---, a witness now to be examined, out of the English language into the -2--- language, and that you will truly and faithfully interpret the answers of the said -3---, thereto out of the -4--- language into the English language, so help you God. [I do.] 

                                    Form 6 

                       Oath Administered Without Gospels

   You do swear, in the presence of the ever-living God, to testify the truth, the whole truth and nothing but the truth, as to the matters respecting which you are to be examined, so help you God. [I do.] 

Modified mortgages show ‘alarming’ default trend

Troubled homeowners who received modified mortgages through a federal program are seeing high default rates, a troubling trend that officials inadequately understand, according to an investigator’s report released Wednesday.

The oldest permanent modifications made through the federal Home Affordable Modification Program, which launched in 2009, were redefaulting at a rate of 46.1% as of March 31, according to the report from the special inspector general overseeing the Treasury Department’s efforts to shore up the U.S. financial system. HAMP’s permanent modifications from 2010 have redefault rates ranging from 28.9% to 37.6%.

“The number of homeowners who have redefaulted on a HAMP permanent mortgage modification is increasing at an alarming rate,” the report said. “Treasury’s data shows that the longer a homeowner remains in HAMP, the more likely he or she is to redefault out of the program.”

Unfortunately, Treasury officials have an insufficient understanding of factors behind failures, according to the report.

“Better knowledge of the characteristics of the loan, the homeowners, the servicer, or the modification, more prone to redefault will increase Treasury’s understanding of the underlying problems that cause redefaults and provide Treasury an opportunity to address these issues proactively,” the inspector general said.

HAMP mortgages are modified to lower monthly payments by cutting interest rates and extending terms, among other actions. Servicers and borrowers receive incentive payments through the program.

Unsuccessful modifications have a “devastating effect,” according to the report.

“Redefaulted HAMP modifications on already struggling homeowners when any amounts previously modified suddenly come due,” according to the report. “When the homeowner cannot pay it, they lose their home to foreclosure.”

When Treasury launched HAMP, officials said the program could help 3 million to 4 million at-risk homeowners avoid foreclosure. However, as of March 31, only about 2 million HAMP modifications had been started, and 54% of these have been cancelled, according to the report.

Looking at Treasury’s use of funds from the Troubled Asset Relief Program, which was designed to shore up the U.S. financial system, less than 2%, or about $7.3 billion, has been spent on homeowner-relief programs, such as HAMP, as of March 31. Meanwhile, Treasury has spent 75% of TARP funds on rescuing financial institutions, the report said.

“For example, the PNC Financial Services Group PNC +1.24%, a large regional east coast bank, alone received $7.6 billion, nearly the same amount of TARP funds used to help struggling homeowners throughout the nation,” according to the report. “Treasury pulled out all the stops for the largest financial institutions, and it must do the same for homeowners.”

–Ruth Mantell

FOR THE FULL ARTICLE CLICK HERE

ERIC SCHNEIDERMAN CHALLENGES OBAMA ADMINISTRATION OVER MORTGAGE INVESTIGATIONS

WASHINGTON -- New York Attorney General Eric Schneiderman has privately criticized the Obama administration and the Department of Justice for not aggressively investigating dodgy mortgage deals that helped trigger the financial crisis, according to senators and congressional aides who met with him this month.

New York’s top prosecutor is co-chair of the administration’s year-old Residential Mortgage Backed Securities Working Group, an initiative that President Barack Obama called for in his State of the Union address last year. In a sign of Schneiderman’s importance to the group, the White House seated him behind Michelle Obama during the speech.

Schneiderman, a Democrat who has attempted to investigate Wall Street, expressed his frustrations with the administration earlier this month during private meetings with Democratic senators on Capitol Hill, arguing that he was “naive” when he first entered into the partnership with the Justice Department, lawmakers and their aides said.

Critics of Schneiderman's collaboration, which came in exchange for his assent to a national mortgage settlement, warned at the time that the attorney general was being played. His recent criticisms of the administration may renew allegations that he, too, has compiled a lackluster enforcement record.

Schneiderman has recently directed his attention to working with lawmakers and outside groups to pressure the administration to toughen its approach. He traveled to Washington for meetings with Sens. Elizabeth Warren (D-Mass.), Carl Levin (D-Mich.), Sherrod Brown (D-Ohio) and Jeff Merkley (D-Ore.), among others, according to people who attended the meetings. The four senators have been among the loudest critics of the Obama administration's efforts to hold the financial industry accountable for alleged wrongdoing, charging they have not gone far enough.

Examples of criticized settlements include the Justice Department's decision not to file criminal charges against financial companies accused of manipulating benchmark interest rates, as well as banks alleged to have helped drug cartels launder money through the U.S. financial system. Government panels like the Financial Crisis Inquiry Commission and the Levin-chaired Permanent Subcommittee on Investigations that referred cases for potential prosecution have seen their recommendations cast aside.

Schneiderman excoriated Justice Department officials for their approach in targeting wrongdoing by financial institutions in private meetings with lawmakers.

“He expressed similar frustrations that the public has expressed,” Levin said.

Levin said that Schneiderman argued that the Justice Department lacks the “political will” to forge ahead with prosecutions of high-ranking financial executives and large financial groups.

“There's been a real lack of going after the top folks, in general,” Levin said. His subcommittee has aggressively probed potential wrongdoing by leading financial institutions, including alleged money laundering at HSBC and mortgage-related misdeeds at Goldman Sachs.

Another senator, who requested anonymity, said of Schneiderman that it's “very clear he's extremely frustrated."

Schneiderman’s behind-the-scenes criticism may sting administration and enforcement officials, who for years have been dogged by allegations that they have been soft on Wall Street.

The White House attempted to rebut those accusations in part by giving Schneiderman a plum role on a unit launched with great fanfare. He was promised aggressive prosecutors and investigators who through enforcement action would put to rest allegations that the Obama administration has been lax on pre-financial crisis misconduct.

The Justice Department has promoted four cases as having been brought thanks to the securitization task force: two separate settlements reached between the Securities and Exchange Commission and JPMorgan Chase and Credit Suisse, and two civil cases Schneiderman has brought in state court against those same banks.

The SEC’s settlements ended investigations that began long before the formation of the securitization task force.

Critics allege the task force has racked up an unimpressive record. In a sign of its decreased standing at the White House, Obama did not mention it in his State of the Union address earlier this year.

“No one is happy with the pace of the task force at all. It's a travesty,” said Brian Kettenring, a community organizer who runs the advocacy groups Leadership Center for the Common Good and Campaign for a Fair Settlement. “It’s one of the biggest black marks on this administration, in terms of what they promised versus what has happened.”

Michael Bresnick, executive director of the Obama-formed Financial Fraud Enforcement Task Force, an oft-criticized collection of regulators that has spent much of its time targeting low-level mortgage brokers and borrowers, said last month the RMBS group is “actively investigating fraud” related to mortgage securities.

More than 200 people from the working group are currently investigating potential misconduct in mortgage securities, the Justice Department said.

“Many more investigations are ongoing,” Bresnick said.

Part of the administration’s embrace of Schneiderman was guided by his appeal to liberal groups, who view him as the new sheriff of Wall Street and have criticized the administration’s approach to alleged misconduct by big banks.

Schneiderman often describes how he is holding Wall Street accountable during private meetings with key interest groups, participants in the meetings have said. His office has demanded various internal bank documents on activity ranging from alleged attempts to manipulate benchmark interest rates to the pre-financial crisis securitizations of home loans that eventually defaulted.

New York’s top law enforcement officer also has the two pending civil cases against Credit Suisse and JPMorgan Chase for allegedly misleading investors in mortgage bonds. Both banks have disputed the allegations.

Schneiderman relied on the Justice Department to bring those two cases, officials said. The agency and several U.S. Attorney’s Offices combined to interview more than 40 people and provided more than a dozen analysts and attorneys to review documents for Schneiderman’s lawsuits, officials said.

“The sharing of information and expertise has been certainly beyond anything I've ever seen or been aware of," Schneiderman said when he announced his JPMorgan lawsuit in October. "It has enabled us to move forward more quickly and more aggressively than we would have.”

Justice spokeswoman Adora Andy Jenkins said the agency “supplied and continues to supply crucial investigative and litigation support, technological resources, and expertise to these cases.”

In the months after Schneiderman took office in 2011, large financial institutions and their lawyers said they feared him. Now, some have said privately in interviews that they view him as a nuisance, given the dearth of cases he has brought in light of his aggressive requests for documents.

Instead, another New York state regulator who is viewed as a rival, Superintendent of Financial Services Benjamin Lawsky, has emerged as the key Wall Street scourge, earning the enmity of some industry executives for his enforcement activities and willingness to buck federal regulators.

In his most notable case, Lawsky secured $340 million from Standard Chartered, a UK bank, to settle accusations the bank hid key details from regulators involving at least $250 billion in illicit transactions with Iran and potentially violated U.S. sanctions policy.

At the time of the settlement, Levin, the powerful chairman of the Senate's investigations panel, said that Lawsky and his team "showed that holding a bank accountable for past misconduct doesn’t need to take years of negotiation over the size of the penalty; it simply requires a regulator with backbone to act.”

Members of advocacy groups who have met with Schneiderman have expressed disappointment in his own efforts to hold financial institutions accountable, and question his criticisms of the administration. Those who spoke on the condition of anonymity for fear of jeopardizing their relationships with his office described Schneiderman’s rhetoric as far more aggressive than his investigations.

"Millions of households are still reeling from the mortgage crisis, which continues to be a drag on our economic recovery," said Schneiderman spokesman Damien LaVera in response.

“The attorney general ... is working constructively with the Justice Department ... [and] will continue to work on multiple fronts with activists and allies inside and outside the government to find aggressive, creative ways to ensure that struggling homeowners in New York and around the country get the relief they deserve,” LaVera added.

Schneiderman maintains the backing of some liberal groups, in part because of his efforts to convince the White House to fire Edward DeMarco, the government regulator overseeing state-controlled mortgage giants Fannie Mae and Freddie Mac.

Some of these groups have been critical of DeMarco, the acting head of the Federal Housing Finance Agency, for his refusal to allow the mortgage companies to forgive distressed borrowers’ mortgage debt. Earlier this year Schneiderman prepared a memo outlining a potential way in which the White House could replace DeMarco.

Full story at: http://www.huffingtonpost.com

NY settles QBE force-placed insurance case for $10 million

The New York State Department of Financial Services settled an investigation into the force-placed insurance practices ofQBE for $10 million, according to the offices of Governor Andrew Cuomo.

QBE will pay that multi-million penalty while also compensating homeowners harmed by QBE’s force-placed insurance practices. The company also agreed to undergo a series of reforms.

Force-placed insurance is the practice of a servicer or bank taking out an insurance policy when a homeowners own insurance policy lapses.

Controversies have developed from the practice with the policies placed on the properties often more expensive than voluntary insurance contracts.

New York Superintendent of Financial Services Benjamin Lawsky said in a statement, "QBE has done the right thing by adopting these reforms.  We now need to ensure that the entire industry in New York – 100% of it – is subject to our reforms."

The state’s settlement with QBE follows a deal New York struck with Assurant over the same type of practices. With QBE now settling, Cuomo says the deal resolves issues at two firms responsible for 90% of the force-placed insurance market in New York.

In the case of QBE, New York investigators claim QBE paid commissions to insurance agencies and brokers affiliated with mortgage servicers to secure their business.

In other words, rather than competing in the market by offering lower premiums for insurance, New York regulators claim QBE competed for banks and servicers' insurance business by offering them a share in the profits.

This meant higher premiums for homeowners and potentially more losses born by taxpayers if the loans in question were owned or backed by Fannie Mae and Freddie Mac.

"Typically, the commissions are ten to twenty percent of the premium written on the servicer’s mortgage loan portfolio," Cuomo’s office said. But, he said, "the evidence from the investigation indicates that the affiliated agencies and brokers do little or no work for the commissions QBE had paid them."

New York authorities also pointed out apparent conflicts of interest.

Back in 2011, QBE bought Balboa Insurance Co., the force-placed insurance business of Bank of America. Balboa previously provided force-placed insurance on Countrywide and BOA-serviced mortgages, which are owned in large part by investors, Cuomo said.

The arrangement was profitable for Countrywide and BOA. However, the New York Governor says it also "created a potential conflict of interest insofar as Countrywide’s and BOA’s bottom line could improve as their Balboa subsidiaries force placed more policies."

For the Full Article Click Here: www.housingwire.com

As NY foreclosures soar, DC blocks probe

Foreclosures are rising dramatically in New York City — even as federal regulators are waging a fight to protect big banks from regulatory scrutiny of illegal foreclosure activity.

Nationwide, foreclosure filings dropped 23 percent in March compared with the year-ago period.

In New York City, by contrast, filings vaulted by 150 percent, which is the biggest percentage increase in 12 months, according to the foreclosure-information firm RealtyTrac.

“The trend is not only continuing but accelerating,” said Daren Blomquist, vice president of RealtyTrac.

Manhattan remains largely immune to foreclosure pain, but Queens, Brooklyn and Staten Island are taking it on the chin.

Foreclosures have been rising for six months straight in Brooklyn and 11 months in a row in Queens. Staten Island continues to have the highest foreclosure rate in the state, with 1 out of every 350 housing units in foreclosure.

Legal-services attorneys say more middle-class New Yorkers are facing foreclosure. Squeezed by high housing costs and low wages, families cannot save to weather a job loss or medical crisis.

New York’s foreclosure uptick comes amid news last week that the Federal Reserve and Office of the Comptroller of the Currency refused a congressional request to turn over documents that were related to illegal foreclosures by mortgage servicers.

The excuse that was offered by Federal Reserve Chairman Ben Bernanke and Comptroller of the Currency Thomas Curry is that these documents come under the category of trade secrets.

“It is incomprehensible that federal regulators would claim that illegal bank actions — which they uncovered — are corporate trade secrets that must be withheld from Congress,” Rep. Elijah Cummings (D-Md.) told The Post.

Despite this setback, Cummings and Sen. Elizabeth Warren (D-Mass.) are pressing ahead with their requests, which were begun in January after the OCC abruptly shut down its review of the national foreclosure settlement.

Congress has the power to subpoena the Fed and OCC for the documents.

At a Senate hearing last Thursday, Warren said, “People want to know that their regulators are watching out for the American public, not for the banks.”

FULL NY POST ARTICLE

Free mediation sessions offered to Staten Island storm victims battling with insurers

STATEN ISLAND, N.Y. -- The New York State Department of Financial Services has hired the American Arbitration Association to host mediation sessions between insurance companies and storm victims -- and 841 Staten Islanders who still have open claims for damage to real or personal property qualify for the assistance.

"It's voluntary. It's non-binding, it's non-adversarial, unlike arbitration or litigation," Jeffrey T. Zaino, vice president of the association, said at a Borough Hall press conference Wednesday.

And it's free -- insurance companies will be footing the bill.

The mediation sessions are open to people whose claims for loss or damage to real or personal property were denied, in either part or in whole, or who haven't been offered a settlement within 45 days of submitting their documents. Flood insurance claims do not qualify.

Zaino said many of those more than 800 open claims will be resolved before going to mediation, but for others, it will be a good option. So far, just 15 Staten Islanders have registered for mediation, and the first one will be held tomorrow. 

The two-hour process sees the insured and the insurance company sitting in a room with one of AAA's mediators -- all of whom will have more than five years' experience and 35 hours' training.

After a person accepts a settlement from her insurance company, she has three days to change her mind, Zaino said.

Citywide, there are about 15,000 claims still unsettled.

"We think mediation is the solution," Zaino said.

Borough President James Molinaro praised the program, saying Gov. Andrew Cuomo and others recognized insurance difficulties have been a prime concern since the storm.

"There was one complaint almost every family I spoke to gave me, and that was with the insurance companies," Molinaro said.

AAA needed a place to set up shop on Staten Island, so Molinaro reached out to Frank Siller of the Stephen Siller Tunnel to the Towers Foundation, who offered up space in their Hylan Boulevard office, where storm victims regularly visit for other types of help.

"So many people don't know the answers with their insurance companies, and I think Jeff is going to resolve that," Siller said.

To register for the program, visit adr.org, e-mail stormsandyny@adr.org, or call 855-366-9767. 

Applicants must complete a two-page form.

FULL STORY CAN BE FOUND HERE- STATEN ISLAND ADVANCE

FED ARGUES THAT MORTGAGE ABUSES ARE TRADE SECRETS, MEANING INSTITUTIONALIZED FRAUD

When the media discusses how banks have ridden like a steamroller over borrowers and investors, the typical response is a combination of minimization and distancing: that the offense wasn’t such a big deal and that it was a mistake. Recall the PR barrage in the wake of the robosigning scandal: its was “sloppiness,” “paperwork errors”. Servicers kept claiming, despite overwhelming evidence of bad faith and the institutionalization of impermissible practices, that there was really nothing wrong with how they were operating. Remember it was important for them to take that position, because if they were to admit that the bank knew it was engaging in widespread abuses with management knowledge and approval, it would be admitting to fraud.

Two major government settlements later, this position is looking awfully strained. And the Fed, in stonewalling Elizabeth Warren’s and Elijah Cumming’s efforts to get more information about the Independent Foreclosure Reviews, presented the bad practices as servicer policies, which means that they were deliberate, hence, fraudulent.

By way of background: Warren and Cummings have been asking the OCC and Fed for some time for more information about what happened in the foreclosure reviews. Out of fourteen information requests they made in a January letter, they got only one question answered in full, and mere partial responses to three other questions. They requested, and got, a meeting yesterday. They issued a letter Wednesday that described what transpired. Key sections:

Two years ago this week, your offices issued a public report announcing that you determined that 14 mortgage servicing companies were engaging in “violations of applicable federal and state law.” You found that these abuses have “widespread consequences for the national housing market and borrowers.” You also explicitly referenced instances of abuse, including illegal foreclosures against our nation’s men and women in uniform who are protected by the Servicemembers Civil Relief Act (SCRA)….

We have requested information about the process used to conduct this review and the extent to which violations of law were found….

At the meeting yesterday, Federal Reserve staff argued that the documents relating to widespread legal violations are the “trade secrets” of mortgage servicing companies. In addition, staff from the Office of the Comptroller of the Currency (OCC) argued that these documents should be withheld from Members of Congress because producing them could be interpreted as a waiver of their authority to prevent disclosure to the public of confidential supervisory bank examination information.

Now since the Fed is apparently making this absurd argument in all seriousness, let’s look at the implications. A trade secret is a form of intellectual property. I encourage IP experts to pipe up in comments, but my understanding, based on the experience of a client who successfully sued a former employee for violating trade secrets, is that it is difficult to prove that your internal know-how rises to the level of being a trade secret. One of the key elements in making the case is that you have to show you went to some length to keep your special tricks secret, such as limiting access to them, having employees sign confidentiality agreements, etc.

Why does this matter? You can’t have internal knowledge rise to the level of being a trade secret unless their was an institutional decision to keep it secret. That means the Fed is effectively saying that servicer management, and almost certainly bank management (since servicing units don’t have their own corporate counsel) was fully aware of the nature of the practices at issue and chose to keep them secret, supposedly for competitive reasons. This is fact is one of the things lawyers have been eager to establish, namely that bank management knew full well all these servicing tricks were happening, and sought to protect them as important sources of profit. Way to go, Fed!

Now, of course, this argument is revealing in a lot of other ways. The Fed has also just admitted it thinks it is more important to protect bank knowledge of how to break the law than expose the information. So the Fed has also made explicit that it wants to preserve banks’ ability to rip off people. So the Fed’s official policy is bank profits trump the law. Not that we didn’t know that, but it has now been stated in a baldfaced manner.

The OCC’s position, that they need to preserve confidential bank examination information, is equally ridiculous (the letter gives a long-form debunking). Warren and Cummings noted,

You may protect against such a waiver by including standard language in a cover letter explaining that providing documents to Members of Congress, even if normally not disclosed to the public because of their proprietary or confidential nature, does not constitute a waiver.

But it’s doubtful that the information at hand is “bank examination information”. The reason for keeping bank examination results confidential is to prevent bank runs. Mortgage servicing units are not banks. In fact, the OCC said repeatedly when it was pilloried for its failure to supervise servciers that didn’t have much in the way of formal authority over them. It wasn’t acting as a bank examiner of servicing units for the period that was the focus of the IFR, 2009 and 2010. Given the poor control over information during the IFR (for instance, at Bank of America, the army of temps who performed the project didn’t sign enforceable confidentiality agreements), and the fact that lots of relevant information (investor reports, court documents, including the affidavits used for the fraudulent fees) are public records, the OCC argument isn’t credible. It becomes even more of a howler when you look at the questions that the OCC and Fed are refusing to answer. Tell me how bank operations might be harmed by answering this question, for instance:

And why are the Fed and the OCC fighting Warren and Cummings so hard? It’s not as if the information they seek would help an individual borrower in litigation against a bank, except in a very general way. For instance, Warren and Cummings ask for the number of borrower files in which unsafe or unsound practices were found. If it was revealed that Bank of America had a high proportion of files with errors, as our whistleblowers found, that might persuade a judge that a borrower case not be thrown out in summary judgment.

But the real exposure of the banks is to investor litigation. The Bank of America sources who did fee reviews found virtually all their files had errors (their reflex was to say all files had errors, but most would then correct themselves and say 90% or 95% since they could not be sure someone didn’t get a batch of files that were fine). In many cases, the errors weren’t large enough to have caused a borrower to lose his house. But remember, if a home is foreclosed on, all fees (late fees, attorney fees, property inspection charges) are reimbursed first, so excessive frequency or size of foreclosure-related fees is a transfer from investors to servicers. So if the OCC and Fed were to confirm that there were large-scale abuses, investors might saddle up to go after the servicers.

This exchange also confirms something the public knows all too well: the regulators are in the business of protecting the banks, and only secondarily in enforcing the law. And until that changes, it is the safety and soundness of the population that is at risk.

Read more at http://www.nakedcapitalism.com/2013/04/fed-argues-that-mortgage-abuses-are-trade-secrets-meaning-institutionalized-fraud.html#PqEECWc8aLaHacAW.99 

Staten Island Event to Honor Ciparick, Raise Sandy Funds

Staten Island Legal Services will host a luncheon on April 19 to honor former Court of Appeals Judge Carmen Beauchamp Ciparick and to raise funds for the group's Hurricane Sandy legal support efforts. Former Governor Mario Cuomo will present Ciparick with Staten Island Legal Services' first annual Vito J. Titone Award for Legal Excellence, named for the Court of Appeals judge who died in 2005. Ciparick, who retired on Dec. 31 after 35 years on the bench, more than 18 on the Court of Appeals, is now of counsel to Greenberg Traurig.

Staten Island Legal Services has helped more than 400 people since the Oct. 29 storm and has 200 open cases, most involving FEMA and insurance issues. "When the storm hit, we were already taxed to capacity and suddenly we were tackling an area we had no experience in," said Nancy Goldhill, the group's director. "It's been extremely difficult." The group has raised funds to hire three additional attorneys to form a disaster recovery unit, which now has a full caseload. Sandy-related legal issues could take several years to resolve, said Goldhill, who added that the group is seeking additional funds to increase storm-related resources and maintain services in foreclosure prevention, family law, immigration and financial counseling.

The April 19 event will be held from noon to 2 p.m. at the Staten Island Hilton Garden Inn, 1100 South Ave. To RSVP or buy tickets, contact Clara Saviñon at 718-233-6494 or csavinon@silsnyc.org.

Supreme Court Upholds Ability of Successful Fair Debt Collection Practices Act (FDCPA) Defendant to Recover Costs

Article By:Michael B. Watkins

David M. PowlenBarnes & Thornburg LLP

In a 7-2 decision, the United States Supreme Court ruled in the case of Marx v. General Revenue Corp. that a provision of the Fair Debt Collection Practices Act (the FDCPA), namely 15 U.S.C. §1692k(a)(3) does not prohibit a court pursuant to a potentially conflicting or superseding provision of the Federal Rule of Civil Procedure from otherwise awarding costs to the defendant as the prevailing party in the litigation.

The facts of this case show that General Revenue Corp. (GRC) was hired to collect on a defaulted student loan by Marx. In response to the collection activity, Marx filed suit against GRC alleging that it violated the FDCPA by making harassing phone calls, threatening to garnish an improper percentage of her wages and wrongfully sending correspondence to her employer requesting information on her employment status. The District Court ruled in favor of GRC following a bench trial, finding no violation of the FDCPA. Afterward, GRC submitted a bill of costs for witness fees, witness travel expenses and deposition transcript fees totaling $7,779.16 pursuant to FRCP 54(d)(1). The District Court disallowed certain items but entered an award of $4,543.03 in favor of GRC. Marx sought to vacate the District Court's award on the basis that the FDCPA provides, in essence, the exclusive basis for an award of costs under FDCPA based actions but that this controlling statute did not apply to these facts.

The purportedly controlling statute, 15 U.S.C. §1692k(a)(3) provides that if a plaintiff's action under the FDCPA "was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorneys' fees reasonable in relation to the work expended and costs". FRCP 54(d)(i), on the other hand, states that "[u]nless a federal statute¼ provides otherwis e, costs - other than attorneys' fees - should be allowed to the prevailing party" (emphasis supplied). Marx argued to the District Court that since she was not found to have asserted her claim in bad faith or for purposes of harassment, then 15 U.S.C. §1692k(a)(3) is a federal statute which does "provide otherwise" and thus displaces the ability of a court to award costs pursuant to FRCP 54(d)(i). Neither the District Court, the 10th Circuit Court of Appeals, nor the United States Supreme Court agreed with Marx's analysis.

The crux of Marx's argument, as the Supreme Court saw it, was that a court's discretion under FRCP 54(d)(1) to award costs was displaced by negative implication under §1692k(a)(3). In other words, since the statute speaks to an award of costs where both bad faith and harassing conduct exist, then an award of costs is unavailable absent such conduct. The Court rejected this argument, however, as an attempt to read too much into congressional intent, determining that the context instead indicated Congress's intent that the statute did not foreclose an award of cost under the Rule, even in the absence of bad faith and harassment in Marx's pursuit of the FDCPA action.

Although a court's discretion remains limited in awarding attorneys' fees to the prevailing party to the "American Rule" (each party pays their own fees) except in instances of bad faith and harassing conduct in FDCPA cases, it is now uniformly established that a court has the discretion to award costs to the prevailing party defendant irrespective of the plaintiff's motive or conduct in bringing the action. Because costs can in and of themselves represent a significant outlay, this decision may serve to cause FDCPA plaintiffs to think twice before bringing an FDCPA action if the facts are not clearly in their favor.

© 2013 BARNES & THORNBURG LLP

The Rise and Fall of Foreclosure Mills...

"Outstanding Law Review article analyzing the rise and fall of foreclosure mills."

-Robert E. Brown, Esq