Once a residential foreclosure matter is released from the Foreclosure Settlement Conference Part the Plaintiff can file a motion requesting a Court order appointing a Referee to compute the total amount due the Plaintiff on the underlying debt. Prior to filing a motion, the Plaintiff’s attorney must receive an OCA Affidavit from their client and then sign an OCA Affirmation. If the Plaintiff attorney experiences a delay in receiving that affidavit, or if there is an issue with the bank’s paperwork, the Plaintiff’s attorney is unable to sign the OCA Affirmation and in turn unable to file the motion.
When a motion isn’t filed it remains in the Foreclosure Settlement Conference Part and therefore in that part’s inventory. Over the past 18 months or so these parts have received pressure to clean up their inventory. As a result, these parts have started to dismiss cases for failure to prosecute pursuant to CPLR 3215 (if an answer was not filed) or CPLR 3216 (if an answer was filed). Every county differs slightly in their approach. Some hold Foreclosure Status Conferences whereby a Judge or Referee will question the Plaintiff’s attorney on the status of the case and pressure them to move their case along. Other counties (most notably Westchester County) schedule dismissal calendars where Plaintiff attorneys that cannot represent on the record that they have received the OCA Affidavit have their cases dismissed.
As you can imagine this creates numerous additional court appearances. While it may provide some temporary assistance to homeowners, 99% of the time the action will be recommenced after dismissal. While the Foreclosure Settlement Conference parts are able to clear up their inventories through this process, more often than not it simply delays the inevitable.
Written By Adam J. Friedman