NY Courts’ New Rule Could Slow Down Foreclosures

As reported on Law.com, the New York state court system has directed lawyers moving for foreclosures to file an affirmation that they have verified the accuracy of the papers they are filing in support of the foreclosure. While lawyers regularly operate under ethical obligations to ensure that the papers they file with the courts are valid, the requirement of a affirmative pleading to that fact raises the stakes dramatically.

The New York courts are driving home to lawyers that they are risking both sanctions and discipline if they do not examine the documents they file in support of a foreclosure. In many instances, lawyers are not intimately involved in the foreclosure process until filing a court action and have certainly in the past taken the documents they receive from the banks and other lenders at face value or not reviewed the documents at all.

Now, in light of the foreclosure freeze and the testimony regarding the sloppy practices by banks, lawyers must do more than they have done in the past. The New York state court rule will force lawyers to track down notes and other mortgage documents if the bank cannot produce the original or they risk their bar licenses and reputations. If nothing else, the new requirement will cause New York lawyers to examine carefully each of their foreclosure files. As likely, New York lawyers will want to double check the accuracy of all the documents in their foreclosure files, perhaps precipitating the review of the foreclosure files that banks may have skimmed over. This directive is not unlike the requirement in bankruptcy cases, sought by creditors in the 2005 bankruptcy amendments, that the attorney for the debtor certify that he or she has no knowledge after an inquiry that the information on the bankruptcy schedules is incorrect. It will be interesting to see whether this requirement has any teeth.

Read more articles about consumer debt by Ted Connolly, co-author of The Road Out of Debt