Bank of New York Mellon (BNY) commenced this mortgage foreclosure action against mortgagor Izmirligil, who defaulted in making monthly payments. Now BNY sought a declaration that certain attorney affirmation requirements imposed upon counsel for foreclosing plaintiffs by Administrative Orders (AO) promulgated by the Chief Administrative Judge were unconstitutional and impermissibly required counsel to violate attorney/client privilege. The court noted while counsel's compliance with the AO has been held to be mandatory, the affirmation itself was held to be non-substantive in nature and its contents free from challenges by adverse parties. Further, it noted in LaSalle Bank v. Pace, this court held the AO and 22 NYCRR 2020.12-a(f) were ultra vires as the Chief Administrative Judge exceeded her statutory and delegated powers to regulate practice in the courts and invaded the province of the legislature. Thus, the court found no reason to alter or disturb its prior holding as to the invalidity of the affirmation requirements under LaSalle, stating none of Izmirligil's contentions warranted a different result. It waived BNY's compliance with the attorney affirmation requirements imposed under the AOs and §202.12-a(f), granting BNY's motion.

Read more: http://www.newyorklawjournal.com/id=1202642192374/Bank-of-New-York-Mellon-v.-Izmirligil#ixzz2tyk4PgcD

Effective August 30, 2013, Civil Practice Law and Rules section 3408(a) was amended to require that, in any residential foreclosure action involving a home loan as such term is defined in Real Property Actions and Proceedings Law §1304, in which the defendant is a resident of the property subject to foreclosure, Plaintiff shall file proof of service within twenty days of such service, however service is made, and the Court shall hold a mandatory conference within sixty days after the date when proof of service upon such defendant is filed with the county clerk.

Pursuant to Administrative Order 208/13 and L. 2013, c. 203 and effective August 30, 2013, the Civil Practice Law and Rules were amended to include section §3012-b, which requires that Plaintiffs commencing residential foreclosure actions are required to serve and file a Certificate of Merit, together with copies of relevant financial documents, with the summons and complaint. The Office of Court Administration drafted a model form for this purpose but practitioners may employ their own form of Cerfificate to comply with the statute.

The provisions of Administrative Order 431/11 - which required that Plaintiffs' Counsel in residential foreclosure actions commenced on or after November 18, 2010 submit an Affirmation confirming that the pleadings and other papers filed or submitted to the Court in the matter are accurate - shall not apply to residential mortgage foreclosure actions commenced on or after August 30, 2013.

In residential mortgage foreclosure actions commenced prior to August 30, 2013, where no affirmation has been filed pursuant to AO/431/11, Plaintiff's Counsel may either (1) comply with AO/431/11, or (2) file with the court at the time of the filing of the Request for Judicial Intervention a certificate of merit whose contents are described in section 3012-b(a) of the Civil Practice Law and Rules.