In NY, the law does not permit a lawsuit to pursue against an individual who is deceased (you can't sue the dead), but the lawsuit can be permitted if the plaintiff has named the decedent's estate representative(s) and or heirs. For instance, if your uncle owned the real property and died without a will (died intestate), the plaintiff, in order to proceed, can name your uncle's natural heirs at law. In New York, real property passes by operation of law to the decedent owner's heirs at law which is based on the laws of succession pursuant to the intestacy statute. If your uncle had a will (died testate) then the plaintiff must name the representative in the probate proceeding and no need to name the natural heirs since they are bound by the probate proceeding. If, however, the plaintiff is seeking a deficiency judgment against your uncle's estate (let's assume he signed a promissory note in favor of the foreclosing plaintiff) then regardless of whether your uncle had a will or not, the plaintiff must serve your uncle's personal representative. If there is no personal representative, the plaintiff will need to file a petition in surrogate's court to have a representative appointed. Once the representative is appointed, the plaintiff can serve the representative and the representative will be bound by any court order or judgment in the foreclosure action. If the foreclosing plaintiff is seeking a deficiency judgment against the decedent's estate then it must name and serve the decedent's personal representative.
Owners of houses in foreclosure are frequently approached by all sorts of "investors" claiming that they will offer all cash for a property in foreclosure. Before you engage such investors, be very suspicious since you do not want to unwittingly give any of your personal information to a fraudster who is looking to self-deal and take advantage of your situation. How can you tell if an investor is legitimate or not? Well, it's not so easy. You can begin by checking with the department of consumer affairs in the county where the property is located and in the adjoining counties to see if any complaints have been filed and if the investor or company was fined. You can also "google" the investor and see what you find. One effective method is to see how many lawsuits the investor is involved in and what kind of litigation it involved. Our firm can assist you in this and provide free general advice over the phone. When someone offers you money for a deed to your property, don't give any personal information and tell the person you will call him/her back after you speak with a lawyer. Our firm can guide you in any situation involving your property. Call us for a free consultation!
Effective this December 20, 2016, vacant and abandoned properties that are the subject of foreclosure actions will be covered under the new law. The law now obligates lenders to frequently inspect, secure and maintain the vacant and abandoned property even before the foreclosing lender obtains a judgment of foreclosure and sale. After the lender commences its foreclosure action and the homeowner's time to answer the complaint expires, the lender, upon proof and certification that the property is abandoned, will be permitted to move via order to show cause for an accelerated judgment of foreclosure and sale. This will clearly accelerate the foreclosure of abandoned properties which will likely lead to quicker rehabilitations. The order to show cause must state in bold letters that the property is vacant and abandoned and that it may be foreclosed on without any further proceedings if the motion is not opposed. The court is also required to send a separate notice advising the homeowner that the lender has filed for an expedited foreclosure action based on the property being abandoned and vacant. The owner of the property must respond to the motion or appear on the return date to challenge the lender's determination that the property is abandoned and vacant.
Additionally, the law requires the Department of Financial Services (DFS) to maintain a statewide electronic registry and the lender is required to furnish information to the DFS within 21 days from when it learns that the property is abandoned and vacant. RPAPL Section 1309 requires that the Plaintiff prove by a preponderance of evidence that it conducted at least 3 inspections, each between 25 to 35 days apart and at different times of the day, and at each inspection, no occupancy was present. Evidence of this includes: overgrown vegetation, accumulation of newspapers and or flyers, past due utility notices, disconnected utilities, accumulation of trash, absence of window coverings, broken, boarded or missing windows, property that is open to entry or property that is unsound and poses a potential threat or danger. The new law carves out exceptions, such as when property is under construction, renovation, seasonal use, subject to a Surrogate Court proceeding or a quiet title action, occupied by someone who has a legal right to occupy, etc. In addition to the typical mortgage foreclosure action, the new law will cover tax lien foreclosures too. Failure of lenders to comply may result in fines that can be as much as $500.00 per day. The law allows all municipalities to enforce the law and collect the fines.
If an owner of vacant property is served with any notice declaring the property to be abandoned and vacant, the owner must determine if the property is worth saving and if so, such owner must take immediate action to avoid the plaintiff from obtaining the judgment of foreclosure and sale. My firm will provide a free phone consultation in such matters, but it is vital that the owner not waste anytime otherwise the property may be lost at a foreclosure sale.
Arnold M. Bottalico is an experienced Long Island, NY foreclosure attorney with over 25 years of experience, and he welcomes your questions and comments.