Editor: David Reiss
Brooklyn Law School

June 27, 2013

Casting Light on the Shadow Docket

By David Reiss

New York Attorney General Schneiderman’s lawsuit against various HSBC entities, New York v. HSBC Bank USA et al., No. 2013-1660 (May 31, 2013), alleges that HSBC entities have sent hundreds or thousands of NY households into legal limbo because they did not comply with procedural requirements applicable to foreclosure.  The complaint outlines these procedural requirements as follows (warning:  technical details to follow):

13. At lease 90 days prior to filing a foreclosure action, the lender must send a homeowner a notice that (i) states the homeowner is at risk of losing the home, (ii) sets forth the amount owed and (iii) provides a list of approved housing counseling agencies that may provide free or low-cost counseling.  [RPAPL section 1304(1).]  The intent of RPAPL, section 1304(1) is to prevent the necessity of a foreclosure action the first place.

14. It the matter is not resolved within 90 days, the lender may file a foreclosure action.  [RPAPL section 1304(1).]

15. In order to help homeowners avoid losing their home whenever possible, New York State law, CPLR section 3408(a), provides for the court to schedule a mandatory settlement conference for the homeowner and lender.

16. The express purpose of the settlement conference is “to determin[e] whether the parties can reach a mutually agreeable resolution to help the [homeowner] avoid losing his or her home, and evaluat[e] the potential for a resolution in which payment schedules or amounts may be modified or other workout options may be agreed to, and for whatever other purposes the court deems appropriate.” [CPLR section 3408(a).]

17. The lender or its counsel must appear a the mandatory settlement conference. If counsel appears, the lawyer must have authority to dispose of the case. CPLR section 3408(c) (emphasis added). The parties are required to negotiate in good faith to reach a mutually agreeable resolution, including a loan modification, that will enable the homeowner to stay in his or her home on more affordable terms.

18. Recognizing that the success of a settlement conference will be enhanced if it is heldf as soon as possible before the arrears, interest, fees and penalties owed by the homeowner mount, CPLR section 3408(a) mandates that the court must hold a settlement conference within sixty days after the date that the lender files proof of service.

19.  However, proof of service is filed with the County Clerk and not the Uniform Court System, which is responsible for scheduling the mandatory settlement conference.  Because the Unified Court System is not aware that a foreclosure action has been commenced until a Request for Judicial Intervention (“RJI”) has been filed, New York Court rules regarding residential foreclosures and mandatory settlement conferences, 22 NYCR section 202.12-a(b)(1), expressly require that the lender file an RJI with the proof of service.

20. Filing the RJI with the proof of service furthers the New York State policy of preventing the loss of homes to foreclosures in two important respects.

21. First, without filing the RJI with the proof of service, the Unified Court System cannot comply with its legal obligation to hold the mandatory settlement conference within sixty days after the date when proof of service is filed.

22. Second, the court sends the RJI, or the homeowner’s name, address and telephone number to an approved housing agency “for the purpose of that agency making the homeowner aware of housing counseling and foreclosure prevention services and options available to them . . .” CPLR section 3408(d). The obvious intent of this requirement is to provide homeowners with the tools and resources that can help them avoid losing their homes. (3-5)

These cases are what is now known as the “shadow docket” because they are in a litigation limbo. it seems that HSBC will have a hard time arguing with the AG’s identification of hundreds of such cases in the four of NY’s 62 counties that it investigated. But it is unclear whether courts will be willing to impose the penalties requested by the AG, including “waiving all accrued interest charges, fees and penalties that accrued, or will accrue, beginning 60 days after the filing of proof of service on the homeowner.” (11) While the failure to hold the settlement conference most certainly has harmed some homeowners, it has also most certainly not harmed others who were not in the position to pay anything at all on a mortgage after losing a job or facing some other serious crisis. There may be a disconnect between the wrong exposed and the remedy requested.

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