S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         4607
                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                    March 30, 2015
                                      ___________
       Introduced  by  Sen.  FARLEY -- read twice and ordered printed, and when
         printed to be committed to the Committee on Judiciary
       AN ACT to amend the  real  property  actions  and  proceedings  law,  in
         relation to foreclosure of mortgages by power of sale
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. The real property actions and proceedings law is amended by
    2  adding a new article 14 to read as follows:
    3                                  ARTICLE 14
    4                  FORECLOSURE OF MORTGAGE BY POWER OF SALE
    5  SECTION 1401. WHEN MORTGAGE MAY BE FORECLOSED.
    6          1402. NOTICE OF INTENTION TO FORECLOSE.
    7          1403. NOTICE OF PENDENCY OF NON-JUDICIAL PROCEEDING FOR FORECLO-
    8                  SURE BY POWER OF SALE.
    9          1404. CONTENTS OF NOTICE OF SALE.
   10          1405. NOTICE OF SALE; HOW GIVEN.
   11          1406. NOTICE OF SALE; HOW SERVED.
   12          1407. SALE; HOW POSTPONED.
   13          1408. SALE; HOW CONDUCTED.
   14          1409. MORTGAGEE OR SUCCESSOR IN INTEREST MAY PURCHASE.
   15          1410. RIGHT TO REDEEM OF MORTGAGOR, SUBORDINATE LIENOR, OR HOLD-
   16                  ER OF SUBORDINATE INTERESTS.
   17          1411. EFFECT OF SALE.
   18          1412. CONVEYANCE.
   19          1413. DISTRIBUTION OF PROCEEDS OF SALE.
   20          1414. REPORT OF SALE.
   21          1415. FILING OF REPORT OF SALE.
   22          1416. MULTIPLE COLLATERAL;  DESIGNATION  OF  ORDER  OF  SALE  OF
   23                  PARCELS.
   24          1417. COSTS AND EXPENSES ALLOWED.
   25          1418. APPLICATION FOR SURPLUS.
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD10170-01-5
       S. 4607                             2
    1          1419. DEFICIENCY JUDGMENT.
    2          1420. RECEIVER.
    3          1421. RIGHT TO SEEK JUDICIAL INTERVENTION; MORTGAGEE'S LIABILITY
    4                  FOR FAILURE TO COMPLY WITH THIS ARTICLE.
    5    S 1401. WHEN MORTGAGE MAY BE FORECLOSED. 1. A MORTGAGE UPON REAL PROP-
    6  ERTY  SITUATED  WITHIN  THE STATE, EXCEPTING A MORTGAGE ON REAL PROPERTY
    7  IMPROVED SOLELY BY (A) A RESIDENTIAL BUILDING CONTAINING LESS  THAN  SIX
    8  DWELLING UNITS, INCLUDING STRUCTURES AND IMPROVEMENTS APPURTENANT THERE-
    9  TO,  OR  (B)  A  RESIDENTIAL  CONDOMINIUM UNIT IN A RESIDENTIAL BUILDING
   10  OWNED IN A CONDOMINIUM FORM OF OWNERSHIP, OR (C) A RESIDENTIAL BUILDING,
   11  INCLUDING STRUCTURES AND IMPROVEMENTS APPURTENANT THERETO,  OWNED  BY  A
   12  QUALIFIED  COOPERATIVE  APARTMENT CORPORATION, OR (D) A BUILDING LOCATED
   13  IN A CITY WITH A POPULATION OF ONE MILLION OR MORE WHERE THE  NUMBER  OF
   14  UNITS  OCCUPIED  BY  RESIDENTIAL  TENANTS  IS  EQUAL  TO OR GREATER THAN
   15  SIXTY-FIVE PER CENTUM OF THE TOTAL NUMBER  OF  UNITS  IN  THE  BUILDING,
   16  CONTAINING  A  PROVISION  THAT,  UPON  A DEFAULT OF THE MORTGAGE, OR THE
   17  NOTE, BOND OR OTHER OBLIGATION SECURED THEREBY, THE MORTGAGEE SHALL HAVE
   18  THE RIGHT TO SELL THE MORTGAGED  PROPERTY,  MAY  BE  FORECLOSED  IN  THE
   19  MANNER  PRESCRIBED  IN  THIS  ARTICLE  FOR A NON-JUDICIAL PROCEEDING FOR
   20  FORECLOSURE BY POWER OF SALE, WHERE THE FOLLOWING REQUISITES OCCUR:
   21    (1) DEFAULT HAS  OCCURRED  UNDER  THE  MORTGAGE  AND  THE  OUTSTANDING
   22  INDEBTEDNESS  HAS  BEEN  DECLARED IMMEDIATELY DUE AND PAYABLE BY WRITTEN
   23  NOTICE TO THE MORTGAGOR GIVEN IN THE MANNER REQUIRED BY THE MORTGAGE;
   24    (2) AN ACTION HAS NOT BEEN BROUGHT TO RECOVER THE DEBT SECURED BY  THE
   25  MORTGAGE,  OR ANY PART THEREOF, OR TO FORECLOSE THE MORTGAGE UNDER ARTI-
   26  CLE THIRTEEN OF THIS CHAPTER; OR, IF AN ACTION  ON  THE  DEBT  HAS  BEEN
   27  BROUGHT, IT HAS BEEN DISCONTINUED OR DISMISSED WITHOUT PREJUDICE AGAINST
   28  THE  PLAINTIFF, OR AN EXECUTION, ISSUED UPON A JUDGMENT RENDERED THEREIN
   29  IN FAVOR OF THE PLAINTIFF, HAS BEEN RETURNED WHOLLY OR  PARTLY  UNSATIS-
   30  FIED;
   31    (3)  THE  MORTGAGE  HAS  BEEN DULY RECORDED IN ACCORDANCE WITH ARTICLE
   32  NINE OF THE REAL PROPERTY LAW IN THE LAND RECORDS IN  THE  COUNTY  WHERE
   33  THE PROPERTY IS SITUATED; AND
   34    (4)  THE  FIRST  NOTICE  OF SALE HAS BEEN PUBLISHED WITHIN THE TIME IN
   35  WHICH AN ACTION COULD BE COMMENCED TO FORECLOSE SUCH MORTGAGE.
   36    2. NON-JUDICIAL FORECLOSURE BY POWER OF SALE PURSUANT TO THIS  ARTICLE
   37  SHALL  NOT  BE  AVAILABLE  TO A MORTGAGEE HOLDING A MORTGAGE ON PROPERTY
   38  CONTAINING RESIDENTIAL APARTMENT UNITS WHERE THE MORTGAGEE SEEKS, IN AND
   39  BY THE NON-JUDICIAL FORECLOSURE OF THE MORTGAGED PROPERTY OR AS A RESULT
   40  THEREOF, TO FORECLOSE, TERMINATE, MODIFY, OR IMPAIR THE TENANT'S  INTER-
   41  ESTS  IN  ANY  LEASES FOR RESIDENTIAL UNITS IN THE MORTGAGED PROPERTY OR
   42  THE TENANT'S POSSESSORY RIGHTS PURSUANT THERETO.
   43    S 1402. NOTICE OF INTENTION TO FORECLOSE.  1. NOT LATER THAN TEN  DAYS
   44  AFTER  COMMENCING  THE  NON-JUDICIAL  PROCEEDING BY FILING THE NOTICE OF
   45  PENDENCY PURSUANT TO SECTION FOURTEEN HUNDRED THREE OF THIS ARTICLE, AND
   46  NOT LESS THAN TEN DAYS PRIOR TO THE FIRST SERVICE OF THE NOTICE OF  SALE
   47  PURSUANT  TO SECTION FOURTEEN HUNDRED SIX OF THIS ARTICLE, A COPY OF THE
   48  NOTICE OF PENDENCY, TOGETHER WITH A NOTICE OF INTENTION TO FORECLOSE, IN
   49  A WRITING COMPLYING WITH SUBDIVISION TWO OF THIS SECTION, SHALL BE  SENT
   50  TO  THE MORTGAGOR, THE OBLIGOR ON THE NOTE, BOND, OR OTHER OBLIGATION IF
   51  OTHER THAN THE MORTGAGOR, THE OWNER OF THE MORTGAGED PROPERTY, IF  OTHER
   52  THAN  THE MORTGAGOR, AND TO ANY PERSON OR ENTITY HAVING A LIEN OF RECORD
   53  UPON THE MORTGAGED PROPERTY,  OR  INTEREST  IN  THE  MORTGAGED  PROPERTY
   54  SUBORDINATE  TO  THE  MORTGAGE THAT THE MORTGAGEE SEEKS TO FORECLOSE, AT
   55  THE TIME OF THE FILING OF THE NOTICE OF PENDENCY OF WHICH THE  MORTGAGEE
   56  HAS  ACTUAL  KNOWLEDGE  OR IS ON CONSTRUCTIVE NOTICE, BOTH BY (A) REGIS-
       S. 4607                             3
    1  TERED MAIL OR CERTIFIED MAIL AND (B) ORDINARY FIRST CLASS  MAIL,  OR  BY
    2  PERSONAL SERVICE IN THE SAME MANNER AS SERVICE OF A SUMMONS. SUCH NOTICE
    3  SHALL  BE  SENT TO THE OWNER OF THE MORTGAGED PROPERTY AT THE ADDRESS OF
    4  THE PROPERTY OR AT SUCH OTHER ADDRESS THAT IS KNOWN TO THE MORTGAGEE, TO
    5  A  MORTGAGOR  AT THE MORTGAGOR'S ADDRESS SPECIFIED IN THE MORTGAGE OR TO
    6  SUCH OTHER PLACE AS MAY HAVE BEEN DIRECTED BY THE MORTGAGOR  IN  WRITING
    7  IN  ACCORDANCE  WITH  THE MORTGAGE, AND TO ANY PERSON OR ENTITY HAVING A
    8  LIEN OF RECORD SUBORDINATE TO THE MORTGAGE THAT THE MORTGAGEE  SEEKS  TO
    9  FORECLOSE AT THE ADDRESS SHOWN ON SUCH LIEN. THE NOTICE SHALL BE SENT TO
   10  A  PERSON  OR  ENTITY  HAVING  ANY SUBORDINATE INTEREST IN THE MORTGAGED
   11  PROPERTY THAT THE MORTGAGEE SEEKS TO FORECLOSE AND OF WHICH THE  MORTGA-
   12  GEE HAS SUCH ACTUAL KNOWLEDGE OR CONSTRUCTIVE NOTICE AT SUCH PERSON'S OR
   13  ENTITY'S LAST KNOWN PERSONAL OR BUSINESS ADDRESS.
   14    2. THE NOTICE SHALL:
   15    (A) IDENTIFY THE MORTGAGE BY THE PARTIES THERETO, THE DATE AND RECORD-
   16  ING DATE THEREOF, AND ANY RECORDED AMENDMENTS AND MODIFICATIONS THEREOF;
   17    (B) (1) IF THERE IS A MONETARY DEFAULT, SET FORTH THE AMOUNTS DUE, THE
   18  DATE  DUE  AND  ANY LATE CHARGES AND DEFAULT INTEREST; (2) IF THERE IS A
   19  NON-MONETARY DEFAULT, SET FORTH THE BASIS THEREOF;
   20    (C) STATE THAT THE MORTGAGEE HAS (1) MADE DEMAND TO CURE A DEFAULT  IF
   21  SUCH  DEMAND  IS  REQUIRED UNDER THE MORTGAGE OR THE NOTE, BOND OR OTHER
   22  OBLIGATION SECURED THEREBY, WHICH DEFAULT HAS NOT BEEN CURED WITHIN  THE
   23  APPLICABLE  CURE  PERIOD, AND (2) DECLARED THE ENTIRE OBLIGATION SECURED
   24  BY THE MORTGAGE TO BE IMMEDIATELY DUE AND PAYABLE BY WRITTEN  NOTICE  TO
   25  THE MORTGAGOR;
   26    (D) SET FORTH THE OUTSTANDING PRINCIPAL BALANCE DECLARED DUE AND PAYA-
   27  BLE,  TOGETHER  WITH  THE  AMOUNT  OF  INTEREST  ACCRUED THEREON AND THE
   28  APPROXIMATE AMOUNT OF OTHER SUMS SECURED BY THE MORTGAGE;
   29    (E) STATE THAT THE INTEREST IN THE MORTGAGED PROPERTY OF THE MORTGAGOR
   30  AND ALL PERSONS OR ENTITIES HAVING AN INTEREST IN THE MORTGAGED PROPERTY
   31  SUBORDINATE TO THE MORTGAGE, WHO ARE SERVED WITH A COPY OF THE NOTICE OF
   32  INTENTION TO FORECLOSE AND ANY OTHER NOTICES REQUIRED UNDER  THIS  ARTI-
   33  CLE,  WILL BE TERMINATED BY FORECLOSURE OF THE MORTGAGE BY POWER OF SALE
   34  PURSUANT TO THIS ARTICLE AND THAT THE MORTGAGOR, OWNER,  OR  SUCH  OTHER
   35  PERSON  OR  ENTITY HAVING AN INTEREST IN THE MORTGAGED PROPERTY SUBORDI-
   36  NATE TO THE MORTGAGE, MAY THEREUPON BE EVICTED BY JUDICIAL PROCESS;
   37    (F) SET FORTH THE RIGHT OF THE MORTGAGOR,  OR  ANY  PERSON  OR  ENTITY
   38  HAVING  AN  INTEREST  IN THE MORTGAGED PROPERTY SUBORDINATE TO THE MORT-
   39  GAGE, TO ANY SURPLUS MONEYS OUT OF THE PROCEEDS OF  SALE  IN  ACCORDANCE
   40  WITH  THE  PROVISIONS OF SECTION FOURTEEN HUNDRED EIGHTEEN OF THIS ARTI-
   41  CLE; AND, IF A DEFICIENCY JUDGMENT  IS  PERMITTED,  THAT  THE  MORTGAGEE
   42  SHALL  HAVE  THE RIGHT TO SEEK A DEFICIENCY JUDGMENT PURSUANT TO SECTION
   43  FOURTEEN HUNDRED NINETEEN OF THIS ARTICLE;
   44    (G) SET FORTH THE RIGHTS AND REMEDIES, AS SPECIFIED IN  SECTION  FOUR-
   45  TEEN  HUNDRED  TWENTY-ONE  OF  THIS  ARTICLE, WHICH ARE AVAILABLE TO THE
   46  MORTGAGOR, OR ANY PERSON OR  ENTITY  CLAIMING  UNDER  THE  MORTGAGOR  OR
   47  HAVING  AN  INTEREST  IN  OR  LIEN  UPON THE MORTGAGED PROPERTY WHICH IS
   48  SUBORDINATE TO THE MORTGAGE BEING FORECLOSED; AND
   49    (H) WHERE THE UNITED STATES OF AMERICA, THE STATE OF NEW YORK, OR  ANY
   50  MUNICIPALITY,  AGENCY  OR INSTRUMENTALITY OF ANY OF THEM, IS ENTITLED TO
   51  NOTICE, THE NOTICE SHALL SPECIFY WITH PARTICULARITY THE  NATURE  OF  THE
   52  INTEREST OR LIEN OF THE GOVERNMENTAL ENTITY. THE NON-JUDICIAL PROCEEDING
   53  UNDER  THIS  ARTICLE  SHALL  BE  DEEMED TO BE AN ACTION, FOR PURPOSES OF
   54  STATUTES CONFERRING JURISDICTION OVER GOVERNMENTAL ENTITIES.
   55    3. AFFIDAVITS OF SERVICE OR MAILING UPON EACH OF THE PERSONS OR  ENTI-
   56  TIES  ENTITLED  TO  AND SERVED WITH THE NOTICE OF INTENTION TO FORECLOSE
       S. 4607                             4
    1  SHALL BE FILED PRIOR TO THE DATE OF SALE UNDER THE INDEX NUMBER  OF  THE
    2  NON-JUDICIAL  PROCEEDING  WITH THE CLERK OF THE COUNTY IN WHICH THE SALE
    3  IS TO TAKE PLACE.
    4    S  1403. NOTICE OF PENDENCY OF NON-JUDICIAL PROCEEDING FOR FORECLOSURE
    5  BY POWER OF SALE.  1. THE MORTGAGEE SHALL, PRIOR TO THE FIRST SERVICE OF
    6  THE NOTICE OF INTENTION TO FORECLOSE, PURCHASE AN INDEX  NUMBER  IN  THE
    7  OFFICE  OF  THE  COUNTY CLERK OF THE COUNTY IN WHICH THE SALE IS TO TAKE
    8  PLACE AND FILE IN THE CLERK'S OFFICE OF EACH COUNTY WHERE THE  MORTGAGED
    9  PROPERTY  IS  SITUATED  A  NOTICE  OF  THE  PENDENCY OF THE NON-JUDICIAL
   10  PROCEEDING FOR FORECLOSURE BY POWER OF SALE WHICH SHALL, IN ADDITION  TO
   11  THE  APPLICABLE REQUIREMENTS OF ARTICLE SIXTY-FIVE OF THE CIVIL PRACTICE
   12  LAW AND RULES, SPECIFY THE DATE OF THE MORTGAGE,  THE  PARTIES  THERETO,
   13  THE  TIME  AND  PLACE  OF RECORDING, THE NAME OF THE RECORD OWNER OF THE
   14  MORTGAGED PROPERTY, THE NAMES OF ANY SUBORDINATE LIENORS OR  HOLDERS  OF
   15  SUBORDINATE  INTERESTS ENTITLED TO NOTICE OF THE SALE, THE OBJECT OF THE
   16  PROCEEDING FOR FORECLOSURE OF THE MORTGAGE  BY  POWER  OF  SALE,  AND  A
   17  DESCRIPTION  OF  THE  MORTGAGED  PROPERTY,  INCLUDING THE NUMBER OF EACH
   18  BLOCK AND LOT ON THE LAND MAP OF THE COUNTY WHICH  IS  AFFECTED  BY  THE
   19  NOTICE. IF THE NOTICE IS FILED IN MORE THAN ONE COUNTY, THE NOTICE SHALL
   20  DESIGNATE  THE COUNTY IN WHICH THE SALE IS TO TAKE PLACE. THE PROVISIONS
   21  OF ARTICLE SIXTY-FIVE OF THE CIVIL PRACTICE LAW AND RULES REQUIRING  THE
   22  SERVICE  AND  FILING OF A SUMMONS SHALL NOT BE APPLICABLE TO A NON-JUDI-
   23  CIAL PROCEEDING FOR FORECLOSURE BY POWER OF SALE PURSUANT TO THIS  ARTI-
   24  CLE.
   25    2.  THE  FILING  OF  THE  NOTICE OF PENDENCY SHALL BE DEEMED TO BE THE
   26  COMMENCEMENT OF THE NON-JUDICIAL PROCEEDING FOR FORECLOSURE BY POWER  OF
   27  SALE PURSUANT TO THIS ARTICLE.
   28    3.  THE  NOTICE  OF  PENDENCY SHALL BE EFFECTIVE FOR A PERIOD OF THREE
   29  YEARS FROM THE DATE OF FILING. BEFORE EXPIRATION OF A PERIOD OR EXTENDED
   30  PERIOD, THE COURT, UPON MOTION OF THE MORTGAGEE AND UPON SUCH NOTICE  AS
   31  THE COURT MAY REQUIRE, MAY, FOR GOOD CAUSE SHOWN, GRANT AN EXTENSION FOR
   32  AN  ADDITIONAL  THREE YEAR PERIOD. AN EXTENSION ORDER SHALL BE FILED AND
   33  INDEXED BEFORE EXPIRATION OF THE NOTICE OF PENDENCY.  IN THE  EVENT  THE
   34  SALE  HAS  NOT TAKEN PLACE PRIOR TO THE EXPIRATION OF A PENDENCY PERIOD,
   35  AND A LAPSE IN EXTENDING THE NOTICE OF  PENDENCY  HAS  OCCURRED,  A  NEW
   36  NOTICE  OF  PENDENCY  MAY  BE  FILED UPON A COURT ORDER FROM THE SUPREME
   37  COURT IN THE COUNTY IN WHICH THE SALE IS TO TAKE  PLACE,  ON  A  SHOWING
   38  THAT  NO  PERSON  OR ENTITY HAS BEEN PREJUDICED BY THE FAILURE TO EXTEND
   39  THE NOTICE OF PENDENCY. IN THE EVENT THAT A PERSON OR ENTITY SHALL  HAVE
   40  ACQUIRED, AFTER THE EXPIRATION OF A NOTICE OF PENDENCY AND BEFORE ANOTH-
   41  ER  SHALL  BE  FILED, AN INTEREST IN OR LIEN UPON THE MORTGAGED PROPERTY
   42  WHICH IS SUBORDINATE TO THE MORTGAGE, SUCH PERSON  OR  ENTITY  SHALL  BE
   43  ENTITLED TO NOTICE OF THE SALE.
   44    4.  THE FILING OF THE NOTICE OF PENDENCY SHALL BE DEEMED TO BE CONCLU-
   45  SIVE RECORD NOTICE TO ANY TENANT OR OCCUPANT WHO TAKES POSSESSION OF ALL
   46  OR A PART OF THE MORTGAGED PROPERTY, OR ANY PERSON WHO OR  ENTITY  WHICH
   47  ACQUIRES AN INTEREST IN OR LIEN UPON THE MORTGAGED PROPERTY, OR ANY PART
   48  THEREOF, AFTER THE FILING OF THE NOTICE OF PENDENCY AND ALL SUCH PERSONS
   49  OR  ENTITIES  SHALL  BE BOUND THEREBY AND BY THE NON-JUDICIAL PROCEEDING
   50  PURSUANT TO THIS ARTICLE.
   51    S 1404. CONTENTS OF NOTICE OF SALE. THE NOTICE OF SALE SHALL SPECIFY:
   52    1. THE NAMES OF THE MORTGAGOR AND RECORD  OWNER,  IF  OTHER  THAN  THE
   53  MORTGAGOR, THE MORTGAGEE, AND OF EACH ASSIGNEE OF THE MORTGAGEE;
   54    2.  THE DATE OF THE MORTGAGE, THE DATE WHEN AND THE PLACE WHERE IT WAS
   55  RECORDED, AND THE BOOK AND PAGE OR INDEX IN WHICH IT IS RECORDED AND THE
       S. 4607                             5
    1  DATES AND RECORDING INFORMATION PERTAINING TO  EACH  ASSIGNMENT  OF  THE
    2  MORTGAGE;
    3    3.  THE  IDENTITY  OF HOLDERS, IF ANY, OF SUBORDINATE INTERESTS IN THE
    4  MORTGAGED PROPERTY WHICH THE MORTGAGEE  SEEKS  TO  FORECLOSE  WHICH  ARE
    5  RECORDED  OR OF WHICH THE MORTGAGEE HAS ACTUAL OR CONSTRUCTIVE NOTICE AT
    6  THE TIME OF THE FILING OF THE NOTICE OF PENDENCY, AND THE NATURE OF SUCH
    7  SUBORDINATE INTERESTS;
    8    4. THE OUTSTANDING PRINCIPAL SUM CLAIMED BY THE MORTGAGEE  TO  BE  DUE
    9  UPON THE MORTGAGE, TOGETHER WITH ACCRUED INTEREST THEREON, LATE CHARGES,
   10  OTHER  SUMS  DUE  UNDER THE MORTGAGE, AND SUMS ADVANCED BY THE MORTGAGEE
   11  RECOVERABLE UNDER THE MORTGAGE INCLUDING THE COSTS OF SALE  AND  REASON-
   12  ABLE  ATTORNEYS' FEES AND DISBURSEMENTS, AT THE TIME OF THE FIRST PUBLI-
   13  CATION OF THE NOTICE;
   14    5. A LEGAL DESCRIPTION OF THE MORTGAGED PROPERTY, THE STREET  ADDRESS,
   15  AND THE BLOCK AND LOT OR OTHER TAX OR TAX MAP IDENTIFICATION;
   16    6. IF THE MORTGAGED PROPERTY CONSISTS OF TWO OR MORE DISTINCT PARCELS,
   17  UNLESS  THE  MORTGAGE  PROVIDES  THAT  THE  PARCELS SHALL BE SOLD AS ONE
   18  PARCEL, THE NOTICE OF SALE SHALL SPECIFY THE ORDER IN WHICH THE  PARCELS
   19  SHALL BE SOLD;
   20    7.  THAT  THE OWNER HAS THE RIGHT, UP TO AND INCLUDING THE TIME OF THE
   21  SALE, TO REDEEM THE MORTGAGED PROPERTY UPON PAYMENT TO THE MORTGAGEE  OF
   22  THE OUTSTANDING PRINCIPAL BALANCE SECURED BY THE MORTGAGE, TOGETHER WITH
   23  INTEREST  ACCRUED  THEREON, AND ALL OTHER SUMS DUE THEREUNDER, INCLUDING
   24  THE COSTS OF SALE AND REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS; AND
   25    8. THE DATE, PLACE AND TIME OF SALE.
   26    S 1405. NOTICE OF SALE; HOW GIVEN. NOTICE THAT THE  MORTGAGE  WILL  BE
   27  FORECLOSED  BY A SALE OF THE MORTGAGED PROPERTY, OR A PART THEREOF, AT A
   28  TIME AND PLACE SPECIFIED IN THE NOTICE, SHALL BE GIVEN IN THE  FOLLOWING
   29  MANNER:
   30    1.  A  COPY  OF  THE  NOTICE SHALL BE SERVED, AS PRESCRIBED IN SECTION
   31  FOURTEEN HUNDRED SIX OF THIS ARTICLE, UPON:
   32    (A) THE MORTGAGOR;
   33    (B) THE OBLIGOR ON THE NOTE, BOND OR OTHER OBLIGATION, IF  OTHER  THAN
   34  THE MORTGAGOR;
   35    (C) THE OWNER OF THE MORTGAGED PROPERTY, IF OTHER THAN THE MORTGAGOR;
   36    (D)  ANY  OTHER PERSON OR ENTITY IN THE MORTGAGE DESIGNATED TO RECEIVE
   37  NOTICE;
   38    (E) A SUBSEQUENT LIENOR OF THE MORTGAGED PROPERTY THAT  THE  MORTGAGEE
   39  SEEKS TO FORECLOSE WHOSE INTEREST WAS RECORDED OR DOCKETED IN THE PROPER
   40  OFFICE  FOR  RECORDING  OR  FILING  IN THE COUNTY IN WHICH THE MORTGAGED
   41  PROPERTY IS LOCATED AT THE TIME OF THE FILING OF THE NOTICE OF PENDENCY;
   42  AND
   43    (F) ANY PERSON HAVING A LIEN UPON OR INTEREST IN THE MORTGAGED PROPER-
   44  TY, OR ANY PART THEREOF, AT THE TIME OF THE  FILING  OF  THE  NOTICE  OF
   45  PENDENCY  THAT  IS  SUBORDINATE  TO  THE MORTGAGE AND THAT THE MORTGAGEE
   46  SEEKS TO FORECLOSE. AFFIDAVITS OF SERVICE OR MAILING UPON  EACH  OF  THE
   47  PERSONS  OR ENTITIES ENTITLED TO NOTICE OF THE SALE SHALL BE FILED PRIOR
   48  TO THE DATE OF SALE UNDER THE INDEX NUMBER OF THE NON-JUDICIAL  PROCEED-
   49  ING WITH THE CLERK OF THE COUNTY IN WHICH THE SALE IS TO TAKE PLACE.
   50    2.  A  COPY  OF  THE NOTICE OF SALE MUST BE PUBLISHED AT LEAST ONCE IN
   51  EACH WEEK DURING THE FIVE SUCCESSIVE  WEEKS  IMMEDIATELY  PRECEDING  THE
   52  DATE  OF SALE, OR AT LEAST TWICE IN EACH WEEK DURING THE FOUR SUCCESSIVE
   53  WEEKS IMMEDIATELY PRECEDING THE DATE OF SALE, IN A NEWSPAPER OF  GENERAL
   54  CIRCULATION  DISTRIBUTED IN THE COUNTY IN WHICH THE PROPERTY TO BE SOLD,
   55  OR ANY PART THEREOF, IS SITUATED, OR IF NO NEWSPAPER IS  DISTRIBUTED  IN
   56  SUCH  COUNTY,  THEN  IN  A NEWSPAPER DISTRIBUTED IN AN ADJOINING COUNTY,
       S. 4607                             6
    1  EXCEPT THAT WHERE SUCH PROPERTY IS LOCATED IN A COUNTY WHOLLY  CONTAINED
    2  WITHIN  A  CITY WITH A POPULATION OF ONE MILLION OR MORE, SUCH NOTICE OF
    3  SALE SHALL BE PUBLISHED IN THE SAME  MANNER  AS  A  NOTICE  OF  JUDICIAL
    4  PROCEEDING  IN  A  NEWSPAPER DISTRIBUTED WITHIN SUCH COUNTY TO BE DESIG-
    5  NATED BY THE CLERK OF SUCH COUNTY. ANY PERIOD OF SEVEN  SUCCESSIVE  DAYS
    6  SHALL CONSTITUTE A WEEK UNDER THIS SECTION.
    7    3.  A COPY OF THE NOTICE OF SALE MUST BE FILED ON OR BEFORE THE DAY OF
    8  FIRST PUBLICATION OF THE NOTICE OF SALE WITH THE CLERK  OF  EACH  COUNTY
    9  WHEREIN THE MORTGAGED PROPERTY, OR ANY PART THEREOF, IS SITUATED.
   10    4.  THE  PUBLICATION  PROVISIONS  OF THIS SECTION SHALL BE FOLLOWED IN
   11  LIEU OF THE PROVISIONS OF SECTION TWO HUNDRED THIRTY-ONE OF THIS CHAPTER
   12  RESPECTING THE PUBLICATION OF A NOTICE OF SALE.
   13    S 1406. NOTICE OF SALE; HOW SERVED. SERVICE OF NOTICE OF THE  SALE  AS
   14  PRESCRIBED  IN  SUBDIVISION ONE OF SECTION FOURTEEN HUNDRED FIVE OF THIS
   15  ARTICLE SHALL BE MADE UPON A PERSON OR ENTITY DESCRIBED  IN  SUBDIVISION
   16  ONE  OF SECTION FOURTEEN HUNDRED FIVE OF THIS ARTICLE THAT THE MORTGAGEE
   17  SEEKS TO FORECLOSE AS FOLLOWS:
   18    1. AT LEAST THIRTY DAYS BEFORE THE DATE OF SALE, BY DELIVERING A  COPY
   19  OF  THE  NOTICE,  IN THE MANNER PRESCRIBED BY ARTICLE THREE OF THE CIVIL
   20  PRACTICE LAW AND RULES FOR PERSONAL SERVICE OF A COPY OF A SUMMONS IN  A
   21  CIVIL ACTION IN A COURT OF RECORD, TO THE PERSON OR ENTITY TO BE SERVED,
   22  AND  BY  MAILING  AN ADDITIONAL COPY THEREOF TO SUCH PERSON OR ENTITY BY
   23  FIRST CLASS MAIL IN AN ENVELOPE BEARING THE LEGEND "PERSONAL AND  CONFI-
   24  DENTIAL" AND NOT INDICATING ON THE OUTSIDE THEREOF, BY RETURN ADDRESS OR
   25  OTHERWISE,  THAT  THE  COMMUNICATION  IS FROM AN ATTORNEY OR CONCERNS AN
   26  ACTION OR PROCEEDING AGAINST THE PERSON OR ENTITY TO BE SERVED. IF  SUCH
   27  PERSON  OR  ENTITY  IS A FOREIGN CORPORATION, OR IS NOT A RESIDENT OF OR
   28  WITHIN THE STATE, THEN SERVICE THEREOF MAY  BE  MADE  UPON  IT  IN  LIKE
   29  MANNER WITHOUT THE STATE, AT LEAST FORTY DAYS BEFORE THE DATE OF SALE.
   30    2.  SERVICE  OF  A  COPY OF THE NOTICE OF SALE UPON THE MORTGAGOR, THE
   31  MORTGAGOR'S SUCCESSORS OR ASSIGNS, OR A SUBSEQUENT GRANTEE OF THE  PROP-
   32  ERTY  FROM THE MORTGAGOR, IN THE MANNER PRESCRIBED IN THE MORTGAGE SHALL
   33  BE GOOD, VALID AND EFFECTIVE SERVICE HEREUNDER.
   34    3. SERVICE OF A COPY OF THE NOTICE OF SALE UPON THE UNITED  STATES  OF
   35  AMERICA,  ITS AGENCIES OR INSTRUMENTALITIES, SHALL BE IN ACCORDANCE WITH
   36  APPLICABLE FEDERAL STATUTE.
   37    S 1407. SALE; HOW POSTPONED.   1. THE SALE MAY  BE  POSTPONED  BY  THE
   38  MORTGAGEE FOR A PERIOD OF TIME NOT TO EXCEED FIVE WEEKS. NOTICE OF POST-
   39  PONEMENT OF THE SALE SHALL BE PUBLISHED AT LEAST ONCE NOT LESS THAN FIVE
   40  DAYS  PRIOR  TO  THE  NEW DATE OF THE SALE IN THE NEWSPAPER IN WHICH THE
   41  ORIGINAL NOTICE WAS PUBLISHED, AND SHALL BE SERVED  IN  THE  MANNER  SET
   42  FORTH  IN  SECTION FOURTEEN HUNDRED SIX OF THIS ARTICLE UPON EACH PERSON
   43  UPON WHOM OR ENTITY UPON WHICH THE ORIGINAL NOTICE OF SALE WAS SERVED.
   44    2. THE SALE MAY ALSO BE POSTPONED IF THE PERSON DESIGNATED TO  CONDUCT
   45  THE  SALE  DOES  NOT APPEAR ON THE DATE SCHEDULED FOR THE SALE, IN WHICH
   46  CASE NOTICE OF THE ADJOURNED DATE  SHALL  BE  PUBLISHED  AND  SERVED  AS
   47  PROVIDED IN SUBDIVISION ONE OF THIS SECTION.
   48    3. IF THE SALE IS STAYED BY APPLICATION OF ANY OTHER LAW, THEN AT SUCH
   49  TIME  AS  THE  STAY SHALL BE VACATED OR LIFTED, AN ADJOURNED SALE MAY BE
   50  SCHEDULED BY THE MORTGAGEE AND PUBLICATION OF THE NOTICE OF  SALE  SHALL
   51  BE  MADE  AS  PRESCRIBED  IN SUBDIVISION TWO OF SECTION FOURTEEN HUNDRED
   52  FIVE OF THIS ARTICLE.
   53    4. THE SALE MAY BE POSTPONED BY THE MORTGAGEE MORE  THAN  ONCE.    THE
   54  MANNER  OF  THE  POSTPONEMENT  AND THE PUBLICATION AND SERVICE OF NOTICE
   55  THEREOF SHALL BE EFFECTED IN ACCORDANCE WITH THE PROVISIONS OF  SUBDIVI-
   56  SION ONE OF THIS SECTION.
       S. 4607                             7
    1    S  1408.  SALE; HOW CONDUCTED.  1. THE SALE SHALL BE AT PUBLIC AUCTION
    2  BY A LICENSED AUCTIONEER, SHERIFF, MARSHAL, OR COURT APPOINTED  OFFICIAL
    3  FOR  SUCH PURPOSE, DURING REASONABLE BUSINESS HOURS, ON A DAY OTHER THAN
    4  SATURDAY, SUNDAY OR A PUBLIC HOLIDAY, IN THE COUNTY IN WHICH  THE  MORT-
    5  GAGED  PROPERTY,  OR  A  PART  THEREOF,  IS  SITUATED, AT ANY COURTHOUSE
    6  LOCATED IN THE COUNTY, OR IF IN A COUNTY WITHIN THE CITY OF NEW YORK, AT
    7  THE COURTHOUSE OF THE SUPREME COURT IN SUCH COUNTY.
    8    2. IF PUBLICATION OF THE NOTICE OF SALE IS FOR FOUR WEEKS,  SUCH  SALE
    9  SHALL  TAKE PLACE ON ANY DAY ON OR AFTER THE TWENTY-EIGHTH DAY AND ON OR
   10  BEFORE THE THIRTY-FIFTH DAY AFTER THE DAY OF THE FIRST PUBLICATION;  AND
   11  IF  PUBLICATION OF THE NOTICE OF SALE IS FOR FIVE WEEKS, SUCH SALE SHALL
   12  TAKE PLACE ON ANY DAY ON OR AFTER THE THIRTY-FIFTH DAY AND ON OR  BEFORE
   13  THE  FORTY-SECOND DAY AFTER THE DAY OF THE FIRST PUBLICATION. ANY PERIOD
   14  OF SEVEN SUCCESSIVE DAYS SHALL CONSTITUTE A WEEK UNDER THIS SECTION.
   15    3. THE PERSON CONDUCTING THE SALE SHALL ANNOUNCE THE TERMS THEREOF  AT
   16  THE  OUTSET  OF  THE  AUCTION. A COPY OF THE TERMS OF SALE SHALL BE MADE
   17  AVAILABLE BY THE MORTGAGEE OR PERSON CONDUCTING THE  SALE  AT  OR  PRIOR
   18  THERETO.
   19    4.  ON  ACCEPTANCE  OF  A  BID AT THE SALE, THE BIDDER, OTHER THAN THE
   20  MORTGAGEE, SHALL DEPOSIT WITH THE PERSON CONDUCTING THE  SALE  AT  LEAST
   21  TEN  PERCENT  OF  THE BID PRICE IN CASH, CERTIFIED CHECK OR A BANK CHECK
   22  DRAWN ON A BANK, TRUST COMPANY, SAVINGS BANK OR SAVINGS AND LOAN ASSOCI-
   23  ATION HAVING OFFICES IN THIS STATE. A  MEMORANDUM  OF  THE  SALE,  WHICH
   24  SHALL INCORPORATE THE TERMS OF THE SALE, SHALL BE EXECUTED BY THE PERSON
   25  CONDUCTING  THE  SALE  AND  THE SUCCESSFUL BIDDER THEREAT, INCLUDING THE
   26  FORECLOSING MORTGAGEE. THE MEMORANDUM SHALL STATE THE  IDENTITY  OF  THE
   27  PURCHASER,  THE  AMOUNT OF THE SUCCESSFUL BID, THE AMOUNT OF THE DEPOSIT
   28  WHICH, PENDING THE CONVEYANCE OF TITLE, SHALL BE RETAINED BY THE  PERSON
   29  CONDUCTING  THE  SALE  IN  A  SEPARATE  ACCOUNT  IN A COMMERCIAL BANK OR
   30  SAVINGS BANK LOCATED IN THE STATE OF NEW YORK, THE DATE, TIME AND  PLACE
   31  OF  CLOSING  OF  TITLE  AND  THAT THE TERMS OF THE SALE ARE INCORPORATED
   32  THEREIN. THE MEMORANDUM OF SALE SHALL NOT BE AMENDED OR MODIFIED.
   33    5. IF THE SUCCESSFUL BIDDER FAILS TO MAKE THE DEPOSIT  ON  ACCEPTANCE,
   34  OR  TO COMPLETE THE TRANSACTION WITHIN THIRTY DAYS AFTER ACCEPTANCE, THE
   35  MORTGAGEE MAY RESELL THE MORTGAGED PROPERTY. THE BIDDER'S DEPOSIT MAY BE
   36  RETAINED OR RECOVERED BY THE MORTGAGEE AS LIQUIDATED DAMAGES  REGARDLESS
   37  OF THE AMOUNT BID AND PAID ON THE RESALE OF THE MORTGAGED PROPERTY.
   38    6. IF THE MORTGAGED PROPERTY CONSISTS OF TWO OR MORE DISTINCT PARCELS,
   39  THEY  SHALL  BE  SOLD SEPARATELY IN THE ORDER SPECIFIED IN THE NOTICE OF
   40  SALE UNLESS OTHERWISE PROVIDED IN THE MORTGAGE OR ANY INSTRUMENT EXTEND-
   41  ING, AMENDING OR MODIFYING THE MORTGAGE. AS MANY OF THE PARCELS SHALL BE
   42  SOLD AS IT IS NECESSARY TO SELL IN ORDER TO SATISFY THE  AMOUNT  DUE  AT
   43  THE  TIME  OF  THE  SALE,  AND THE COSTS AND EXPENSES ALLOWED BY SECTION
   44  FOURTEEN HUNDRED SEVENTEEN OF THIS ARTICLE.  WHERE TWO OR MORE BUILDINGS
   45  ARE SITUATED IN THE SAME CITY LOT OR LOCAL TAX LOT, THEY SHALL  BE  SOLD
   46  TOGETHER.
   47    S  1409.  MORTGAGEE OR SUCCESSOR IN INTEREST MAY PURCHASE. THE MORTGA-
   48  GEE, OR ITS  ASSIGNEE,  OR  THE  LEGAL  REPRESENTATIVE  OF  EITHER,  MAY
   49  PURCHASE  THE  MORTGAGED  PROPERTY, OR ANY PART THEREOF, AT THE SALE AND
   50  SHALL BE ENTITLED TO BID. UPON ANY SUCH BID UP TO THE FULL AMOUNT OF THE
   51  INDEBTEDNESS SECURED BY THE MORTGAGE, INCLUDING  UNPAID  INTEREST,  LATE
   52  CHARGES,  COSTS  OF  SALE, REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS,
   53  AND ADVANCES MADE TO PROTECT THE LIEN OF THE MORTGAGE, THE MORTGAGEE, OR
   54  ITS ASSIGNEE, OR THE  LEGAL  REPRESENTATIVE  OF  EITHER,  SHALL  NOT  BE
   55  REQUIRED TO MAKE ANY DEPOSIT AT THE SALE OR ANY PAYMENT OF THE AMOUNT OF
       S. 4607                             8
    1  THE  SUCCESSFUL BID UP TO THE FULL AMOUNT OF THE INDEBTEDNESS SECURED BY
    2  THE MORTGAGE, UPON THE DELIVERY OF THE POWER OF SALE DEED.
    3    S 1410. RIGHT TO REDEEM OF MORTGAGOR, SUBORDINATE LIENOR, OR HOLDER OF
    4  SUBORDINATE  INTERESTS.    1. AT ANY TIME BEFORE THE COMMENCEMENT OF THE
    5  BIDDING AT THE SALE, THE MORTGAGOR, OR THE RECORD OWNER OF THE MORTGAGED
    6  PROPERTY, OR THE HOLDER OF ANY SUBORDINATE SECURITY INTEREST IN OR OTHER
    7  LIEN UPON THE MORTGAGED PROPERTY, MAY PREVENT THE SALE BY PAYMENT TO THE
    8  MORTGAGEE, IN GOOD FUNDS, OF ALL SUMS DUE UNDER  THE  MORTGAGE,  OR  THE
    9  NOTE,  BOND  OR  OTHER OBLIGATION SECURED THEREBY, TOGETHER WITH ACCRUED
   10  INTEREST THEREON, AND ALL OTHER SUMS DUE THEREUNDER, INCLUDING THE COSTS
   11  OF SALE AND REASONABLE ATTORNEYS' FEES. AS BETWEEN OR AMONG  HOLDERS  OF
   12  SECURITY  INTERESTS,  THE TENDER OF REDEMPTION BY THE HOLDER ENTITLED TO
   13  PRIORITY PREVAILS OVER THE TENDER OF  REDEMPTION  BY  THE  HOLDER  OF  A
   14  SUBORDINATE INTEREST.
   15    2. IF A MORTGAGOR, RECORD OWNER, OR HOLDER OF ANY SUBORDINATE SECURITY
   16  INTEREST  IN  OR  OTHER  LIEN UPON THE MORTGAGED PROPERTY IS ENTITLED TO
   17  REDEEM UNDER THIS SECTION, THE MORTGAGOR, RECORD OWNER, OR THE HOLDER OF
   18  ANY SUBORDINATE SECURITY INTEREST OR LIEN, MAY,  UPON  SUCH  REDEMPTION,
   19  REQUIRE  THE  MORTGAGEE, UPON FULL PAYMENT OF THE OBLIGATION, IN LIEU OF
   20  THE CERTIFICATE OF DISCHARGE UNDER SECTION TWO HUNDRED  SEVENTY-FIVE  OF
   21  THE  REAL  PROPERTY  LAW,  TO  ASSIGN  THE DEBT AND THE MORTGAGE WITHOUT
   22  RECOURSE OR WARRANTY TO ANY PERSON OR ENTITY  DESIGNATED  BY  THE  PAYOR
   23  PROVIDED  THAT SUCH PERSON OR ENTITY IS NOT THE MORTGAGOR OR A PERSON OR
   24  ENTITY ACTING AS A NOMINEE OF THE MORTGAGOR, AND THE MORTGAGEE IS  OBLI-
   25  GATED TO DO SO, PROVIDED THE PAYOR EXECUTES THE AFFIDAVIT REQUIRED UNDER
   26  SECTION  TWO  HUNDRED  SEVENTY-FIVE OF THE REAL PROPERTY LAW. THE RIGHTS
   27  UNDER THIS SUBDIVISION MAY BE ENFORCED BY THE HOLDER OF ANY  SUBORDINATE
   28  SECURITY  INTEREST IN OR LIEN UPON THE MORTGAGED PROPERTY EVEN THOUGH IT
   29  IS A SUBORDINATE SECURITY INTEREST OR LIEN. THE ASSIGNMENT OF THE  MORT-
   30  GAGE,  AND  THE  INDEBTEDNESS  SECURED THEREBY, SHALL BE DEEMED TO BE AN
   31  ASSIGNMENT OF A BONA FIDE OBLIGATION WITHIN THE MEANING OF  SECTION  TWO
   32  HUNDRED SEVENTY-FIVE OF THE REAL PROPERTY LAW.
   33    S  1411.  EFFECT OF SALE.  1. A SALE, MADE AND CONDUCTED AS PRESCRIBED
   34  IN THIS ARTICLE, TO A PURCHASER, INCLUDING THE MORTGAGEE OR  THE  PERSON
   35  TO  WHOM  OR  ENTITY TO WHICH THE PURCHASER OR THE MORTGAGEE ASSIGNS THE
   36  TERMS OF SALE AND MEMORANDUM OF SALE BY  ASSIGNMENT  DULY  EXECUTED  AND
   37  RECORDED,  IS  EQUIVALENT TO A SALE PURSUANT TO JUDGMENT IN AN ACTION TO
   38  FORECLOSE THE MORTGAGE UNDER  ARTICLE  THIRTEEN  OF  THIS  CHAPTER,  AND
   39  EXCEPT  AS  RESPECTS THE INTEREST OF THE UNITED STATES OF AMERICA, WHICH
   40  SHALL BE FORECLOSED AS PROVIDED IN SUBDIVISION FOUR OF THIS SECTION,  OR
   41  THOSE  RESIDENTIAL  TENANTS WHOSE INTEREST MAY NOT BE FORECLOSED, TERMI-
   42  NATED, MODIFIED, OR IMPAIRED PURSUANT TO THIS ARTICLE, IMMEDIATELY  UPON
   43  THE  EXECUTION  OF  THE  MEMORANDUM OF SALE OF THE PERSON CONDUCTING THE
   44  AUCTION, SHALL BAR ANY CLAIM OR EQUITY  OF  REDEMPTION,  UPON,  OR  WITH
   45  RESPECT TO, THE PROPERTY SOLD, OF EACH OF THE FOLLOWING PERSONS OR ENTI-
   46  TIES:
   47    (A)  THE  MORTGAGOR,  OR  THE  MORTGAGOR'S HEIRS, DEVISEES, EXECUTORS,
   48  ADMINISTRATORS, SUCCESSORS OR ASSIGNS;
   49    (B) EACH PERSON CLAIMING UNDER ANY OF THEM,  BY  VIRTUE  OF  A  TITLE,
   50  LIEN,  TENANCY, INTEREST, ENCUMBRANCE, JUDGMENT OR DECREE, SUBSEQUENT TO
   51  THE MORTGAGE, UPON WHOM THE NOTICE OF SALE WAS SERVED, AS PRESCRIBED  IN
   52  THIS ARTICLE;
   53    (C)  EACH  PERSON SO CLAIMING, WHOSE ASSIGNMENT, MORTGAGE, CONVEYANCE,
   54  TENANCY, OR OTHER INTEREST WAS NOT DULY RECORDED IN THE PROPER  BOOK  OR
   55  INDEX  FOR  RECORDING  THE  SAME  IN THE COUNTY IN WHICH THE PROPERTY IS
   56  SITUATED, OR WHOSE JUDGMENT OR DECREE WAS NOT DULY DOCKETED IN THE COUN-
       S. 4607                             9
    1  TY CLERK'S OFFICE, AT THE TIME OF THE FILING OF THE NOTICE  OF  PENDENCY
    2  OF  THE  SALE PURSUANT TO THIS ARTICLE, AND THE EXECUTOR, ADMINISTRATOR,
    3  SUCCESSOR OR ASSIGNEE OF SUCH A PERSON;
    4    (D)  EVERY  OTHER  PERSON,  CLAIMING  UNDER A STATUTORY LIEN OR ENCUM-
    5  BRANCE, CREATED, RECORDED OR FILED  SUBSEQUENT  TO  THE  FILING  OF  THE
    6  NOTICE  OF  PENDENCY,  ATTACHING TO THE TITLE OR INTEREST OF ANY PERSON,
    7  DESIGNATED IN ANY OF THE FOREGOING SUBDIVISIONS OF THIS SECTION.
    8    2. NOTHING IN THIS ARTICLE SHALL BAR OR FORECLOSE ANY  CLAIM  UPON  OR
    9  INTEREST  IN  THE  MORTGAGED PROPERTY SOLD OF ANY PERSON OR ENTITY WHOSE
   10  INTEREST IN OR LIEN UPON THE  MORTGAGED  PROPERTY  AROSE  PRIOR  TO  THE
   11  FILING OF THE NOTICE OF PENDENCY AND WHO HAS NOT BEEN SERVED WITH A COPY
   12  OF THE NOTICE OF SALE IN THE MANNER PRESCRIBED IN THIS ARTICLE.
   13    3.  A  CONVEYANCE  MADE  IN  ACCORDANCE  WITH SECTION FOURTEEN HUNDRED
   14  TWELVE OF THIS ARTICLE TO A PURCHASER AT THE FORECLOSURE SALE, INCLUDING
   15  THE MORTGAGEE, IS NOT A FRAUDULENT TRANSFER BY REASON OF THE VALUE GIVEN
   16  BEING LESS THAN THE VALUE OF THE MORTGAGOR'S INTEREST IN  THE  MORTGAGED
   17  PROPERTY.
   18    4.  WHERE  THE  UNITED  STATES  OF  AMERICA, OR ANY OF ITS AGENCIES OR
   19  INSTRUMENTALITIES, HAS A SUBORDINATE LIEN OR INTEREST OF RECORD  IN  THE
   20  MORTGAGED PROPERTY AND IS ENTITLED TO NOTICE, THE MORTGAGEE SHALL OBTAIN
   21  AN  ORDER  FROM  THE SUPREME COURT IN THE COUNTY IN WHICH THE SALE IS TO
   22  TAKE PLACE, AFTER THE TIME FOR THE UNITED STATES OF  AMERICA  TO  APPEAR
   23  HAS EXPIRED, FORECLOSING THE LIEN OR INTEREST OF THE UNITED STATES. UPON
   24  SUCH  ORDER,  THE SALE SHALL BE DEEMED TO BE A JUDICIAL SALE FORECLOSING
   25  THE LIEN OR INTEREST OF THE UNITED STATES  OF  AMERICA  SUBJECT  TO  THE
   26  RIGHTS OF THE UNITED STATES OF AMERICA PURSUANT TO APPLICABLE STATUTES.
   27    S  1412.  CONVEYANCE.    1.  THE PERSON AUTHORIZED TO CONDUCT THE SALE
   28  PURSUANT TO SUBDIVISION ONE OF SECTION FOURTEEN HUNDRED  EIGHT  OF  THIS
   29  ARTICLE SHALL, AT THE CLOSING OF TITLE HELD IN ACCORDANCE WITH THE TERMS
   30  OF  SALE,  EXECUTE  AND DELIVER A DEED TO THE PURCHASER IN THE FOLLOWING
   31  FORM:
   32                             POWER OF SALE DEED
   33    THIS DEED, MADE AS OF THE _______ DAY OF ___________,  _____,  BETWEEN
   34  ______________,  IN  THE CAPACITY OF AUCTIONEER/SHERIFF/MARSHAL/REFEREE,
   35  HAVING AN OFFICE AT _________, ______________, NEW YORK ("GRANTOR")  AND
   36  ______________,     A     ____________     HAVING    AN    ADDRESS    AT
   37  ____________________, ______________, _____________ ("GRANTEE"),
   38                                 WITNESSETH:
   39    THAT __________________("MORTGAGEE"), THE  OWNER  AND  HOLDER  OF  THE
   40  MORTGAGE DESCRIBED IN EXHIBIT A ATTACHED HERETO ENCUMBERING THE PROPERTY
   41  DESCRIBED  HEREINBELOW  (THE  "PROPERTY"),  AND  THE NOTE, BOND OR OTHER
   42  OBLIGATION SECURED THEREBY, HAS FORECLOSED THE  LIEN  OF  SAID  MORTGAGE
   43  PURSUANT   TO   ARTICLE  FOURTEEN  OF  THE  REAL  PROPERTY  ACTIONS  AND
   44  PROCEEDINGS LAW OF THE STATE OF NEW YORK;
   45    THAT GRANTOR HAS BEEN DESIGNATED BY MORTGAGEE OR BY THE COURT  IN  THE
   46  COUNTY  IN  WHICH  THE  SALE  HAS TAKEN PLACE TO CONDUCT THE SALE OF THE
   47  PROPERTY;
   48    THAT THE SALE WAS DULY HELD ON  _______________  ___,  ____,  AND  THE
   49  MEMORANDUM  OF  SALE  ATTACHED  HERETO  AS EXHIBIT B WAS EXECUTED AT THE
   50  CONCLUSION OF THE SALE;
   51    AND THAT PURSUANT THERETO AND IN CONSIDERATION  OF  ___________DOLLARS
   52  ($_____________) PAID BY GRANTEE, BEING THE HIGHEST SUM BID AT THE SALE,
   53    GRANTOR DOES HEREBY GRANT AND CONVEY TO GRANTEE:
   54  (LAND DESCRIPTION OF THE PROPERTY)
   55    TOGETHER WITH ALL RIGHT, TITLE AND INTEREST, IF ANY, OF THE GRANTOR IN
   56  AND  TO  ANY  STREETS AND ROADS ABUTTING THE ABOVE-DESCRIBED PREMISES TO
       S. 4607                            10
    1  THE CENTER LINES THEREOF; TOGETHER WITH THE APPURTENANCES  AND  ALL  THE
    2  ESTATE AND RIGHTS OF THE GRANTOR IN AND TO SAID PREMISES; TO HAVE AND TO
    3  HOLD THE PREMISES HEREIN GRANTED TO THE GRANTEE, THE HEIRS OR SUCCESSORS
    4  AND ASSIGNS OF THE GRANTEE FOREVER.
    5    IN  WITNESS  WHEREOF,  GRANTOR HAS HEREUNTO SET THE GRANTOR'S HAND AND
    6  SEAL THE DATE FIRST ABOVE WRITTEN.
    7    ________________ (ACKNOWLEDGEMENT)
    8    2. BEFORE THE DEED IS EXECUTED AND DELIVERED  TO  THE  PURCHASER,  THE
    9  MORTGAGEE  SHALL  FILE THE MORTGAGE AND ANY ASSIGNMENT NOT SHOWN TO HAVE
   10  BEEN LOST OR DESTROYED IN THE OFFICE OF THE CLERK, UNLESS  IT  IS  IN  A
   11  FORM  WHICH  CAN  BE RECORDED; IN WHICH CASE IT SHALL BE RECORDED IN THE
   12  COUNTY OR COUNTIES WHERE THE MORTGAGED PROPERTY OR PROPERTIES ARE  SITU-
   13  ATED;  THE  EXPENSE OF FILING OR RECORDING AND ENTRY SHALL BE ALLOWED IN
   14  THE COSTS TO BE RECOVERED BY THE MORTGAGEE  PURSUANT  TO  THIS  ARTICLE;
   15  AND,  IF FILED WITH THE CLERK, HE SHALL ENTER IN THE MINUTES THE TIME OF
   16  FILING.
   17    3. THE PURCHASER OF THE MORTGAGED PROPERTY, UPON A SALE  CONDUCTED  AS
   18  PRESCRIBED  IN THIS ARTICLE, THEREUPON OBTAINS MARKETABLE TITLE THERETO,
   19  IN THE SAME MANNER AS A PURCHASER IN A JUDICIAL FORECLOSURE SALE  PURSU-
   20  ANT TO ARTICLE THIRTEEN OF THIS CHAPTER AGAINST ALL PERSONS BOUND BY THE
   21  SALE.
   22    S 1413. DISTRIBUTION OF PROCEEDS OF SALE.  1. THE PROCEEDS OF THE SALE
   23  SHALL  BE  DISTRIBUTED AND PAID BY THE PERSON CONDUCTING THE SALE IN THE
   24  FOLLOWING ORDER:
   25    (A) ALL TAXES, WATER RATES, SEWER RENTS AND ASSESSMENTS THAT ARE LIENS
   26  UPON THE REAL PROPERTY SOLD, AND ANY LIENS OR ENCUMBRANCES PLACED  BY  A
   27  CITY  AGENCY OR A MUNICIPALITY UPON THE REAL PROPERTY THAT HAVE PRIORITY
   28  OVER THE FORECLOSED MORTGAGE.
   29    (B) THE COSTS AND EXPENSES OF THE SALE, PURSUANT TO  SECTION  FOURTEEN
   30  HUNDRED SEVENTEEN OF THIS ARTICLE.
   31    (C)  TO THE MORTGAGEE, THE AMOUNT OF THE DEBT, ACCRUED INTEREST THERE-
   32  ON, LATE CHARGES, AND ALL OTHER SUMS ADVANCED BY THE MORTGAGEE WHICH ARE
   33  RECOVERABLE UNDER THE MORTGAGE, INCLUDING THE COSTS OF SALE AND  REASON-
   34  ABLE  ATTORNEYS'  FEES  AND  DISBURSEMENTS,  OR  SO  MUCH THEREOF AS THE
   35  PROCEEDS WILL PAY. THE PERSON CONDUCTING THE SALE SHALL TAKE THE AFFIDA-
   36  VIT OF THE MORTGAGEE AS TO ALL OF THE FOREGOING AMOUNTS BEING  DUE,  AND
   37  THE  RECEIPT  OF THE MORTGAGEE FOR THE AMOUNT SO PAID, AND FILE THE SAME
   38  WITH THE REPORT OF SALE.
   39    (D) UPON ENTRY OF AN ORDER PURSUANT TO SECTION FOURTEEN HUNDRED  EIGH-
   40  TEEN  OF  THIS ARTICLE PROVIDING FOR SAME, TO THE HOLDER OF ANY SUBORDI-
   41  NATE MORTGAGE OR LIEN, OR TO THE OWNER OF THE EQUITY  OF  REDEMPTION  OR
   42  ANY  PERSON OR ENTITY HAVING FILED A NOTICE OF CLAIM AGAINST THE PROPER-
   43  TY, FROM THE THEN REMAINING PROCEEDS THE AMOUNT THEN DUE TO SUCH  PERSON
   44  OR  ENTITY,  IN  THE  PRIORITY THEREOF, OR SO MUCH AS THE THEN REMAINING
   45  PROCEEDS WILL PAY.
   46    2. ALL SURPLUS MONEYS ARISING FROM  THE  SALE  AFTER  PAYMENT  OF  THE
   47  AMOUNTS DUE UNDER PARAGRAPHS (A), (B) AND (C) OF SUBDIVISION ONE OF THIS
   48  SECTION  SHALL  BE  PAID TO THE COUNTY TREASURER FOR THE COUNTY IN WHICH
   49  THE SALE TOOK PLACE BY THE PERSON CONDUCTING THE SALE WITHIN  FIVE  DAYS
   50  AFTER THE SAME SHALL BE RECEIVED, IN LIKE MANNER AND WITH LIKE EFFECT AS
   51  IF THE PROCEEDING TO FORECLOSE THE MORTGAGE OCCURRED PURSUANT TO ARTICLE
   52  THIRTEEN OF THIS CHAPTER.
   53    S  1414.  REPORT OF SALE.  1. WITHIN FIFTEEN DAYS AFTER COMPLETING THE
   54  SALE AND EXECUTING THE PROPER CONVEYANCE TO THE  PURCHASER,  THE  PERSON
   55  CONDUCTING THE SALE SHALL MAKE A REPORT OF THE SALE, WHICH SHALL STATE:
   56    (A) THE TIME WHEN AND THE PLACE WHERE THE SALE WAS MADE;
       S. 4607                            11
    1    (B) THE SUM BID FOR EACH DISTINCT PARCEL SEPARATELY SOLD;
    2    (C) THE NAME OF THE PURCHASER OF EACH DISTINCT PARCEL; AND
    3    (D) THE NAME OF EACH PERSON OR ENTITY, COURT OFFICER OR OTHER OFFICER,
    4  TO WHOM PROCEEDS OF THE SALE WAS PAID, AND THE SUM THEREOF.
    5    2. THE REPORT OF SALE SHALL CONTAIN:
    6    (A)  AFFIDAVIT  OF  THE  PUBLICATION OF THE NOTICE OF SALE, AND OF THE
    7  NOTICE OR NOTICES OF POSTPONEMENT, IF ANY, BY THE PUBLISHER  OR  PRINTER
    8  OF  THE  NEWSPAPER  IN  WHICH THEY WERE PUBLISHED, OR BY THE PUBLISHER'S
    9  FOREMAN OR PRINCIPAL CLERK;
   10    (B) COPIES OF THE AFFIDAVIT OR AFFIDAVITS, OF THE SERVICE OF COPIES OF
   11  THE NOTICE OF INTENTION TO FORECLOSE AND THE NOTICE OF PENDENCY THERETO-
   12  FORE FILED WITH THE CLERK OF THE COURT; AND
   13    (C) THE TERMS OF SALE AND EXECUTED MEMORANDUM OF SALE.
   14    3. THE REPORT SHALL SPECIFY THE AMOUNT CLAIMED TO BE DUE BY THE  MORT-
   15  GAGEE  ON  THE  INDEBTEDNESS  SECURED BY THE MORTGAGE, TOGETHER WITH ALL
   16  OTHER SUMS RECOVERABLE UNDER SECTION FOURTEEN HUNDRED SEVENTEEN OF  THIS
   17  ARTICLE, THE AMOUNT DISTRIBUTED BY THE PERSON CONDUCTING THE SALE PURSU-
   18  ANT  TO  SECTION FOURTEEN HUNDRED THIRTEEN OF THIS ARTICLE, AND TO WHOM,
   19  AND THE AMOUNT OF THE DEFICIENCY OR SURPLUS  AFTER  APPLICATION  OF  THE
   20  PROCEEDS OF SALE THERETO. THE REPORT SHALL CONTAIN THE MORTGAGEE'S AFFI-
   21  DAVIT  SPECIFYING THE AMOUNT CLAIMED DUE BY THE MORTGAGEE ON THE INDEBT-
   22  EDNESS SECURED BY THE MORTGAGE, TOGETHER WITH ALL OTHER SUMS RECOVERABLE
   23  UNDER SECTION FOURTEEN HUNDRED SEVENTEEN OF THIS ARTICLE.
   24    4. THE MATTERS REQUIRED TO BE CONTAINED IN ANY OR ALL OF  THE  AFFIDA-
   25  VITS  SPECIFIED HEREIN MAY BE CONTAINED IN ONE AFFIDAVIT, WHERE THE SAME
   26  PERSON DEPOSES WITH RESPECT TO THEM. A COPY OF THE NOTICE OF SALE  SHALL
   27  BE ANNEXED TO EACH AFFIDAVIT.
   28    S 1415. FILING OF REPORT OF SALE.  1. THE REPORT AND AFFIDAVITS SPECI-
   29  FIED  IN  SECTION  FOURTEEN  HUNDRED  FOURTEEN  OF THIS ARTICLE SHALL BE
   30  FILED, IN THE SAME MANNER AS THE FILING OF THE NOTICE OF PENDENCY PURSU-
   31  ANT TO SUBDIVISION TWO OF SECTION FOURTEEN HUNDRED THREE OF  THIS  ARTI-
   32  CLE,  IN  THE  COUNTY  CLERK'S  OFFICE IN THE COUNTY WHERE THE SALE TOOK
   33  PLACE WITHIN THIRTY DAYS AFTER THE COMPLETION OF THE SALE AND  EXECUTION
   34  OF  THE  PROPER  CONVEYANCE  TO  THE PURCHASER, AND, AS SUCH, CONSTITUTE
   35  PRESUMPTIVE EVIDENCE OF THE MATTERS OF FACT THEREIN STATED, WITH RESPECT
   36  TO ANY MORTGAGED PROPERTY SOLD WHICH IS SITUATED IN THAT COUNTY.
   37    2. EACH COUNTY CLERK IN THIS STATE IN  WHOSE  OFFICE  REPORTS  OF  THE
   38  FORECLOSURE  OF  MORTGAGES  BY POWER OF SALE HAVE BEEN OR SHALL BE FILED
   39  PURSUANT TO THE PROVISIONS OF SUBDIVISION ONE OF THIS SECTION, IS HEREBY
   40  AUTHORIZED TO DELIVER CERTIFIED COPIES OF THE SAME TO THE  PURCHASER  OF
   41  THE  MORTGAGED  PROPERTY  ON  THE  FORECLOSURE SALE OR TO ANY MORTGAGOR,
   42  OBLIGOR ON THE NOTE OR BOND, OWNER OF, OR ANY  OTHER  PERSON  OR  ENTITY
   43  HAVING  A  SUBORDINATE  INTEREST IN OR LIEN UPON, THE MORTGAGED PROPERTY
   44  WHICH WAS FORECLOSED BY THE SALE, UPON REQUEST THEREFORE.
   45    S 1416. MULTIPLE COLLATERAL; DESIGNATION OF ORDER OF SALE OF  PARCELS.
   46  WHERE THE INDEBTEDNESS IS SECURED BY MORE THAN ONE MORTGAGE ON MORTGAGED
   47  PROPERTY  CONSISTING OF MORE THAN ONE FUNCTIONALLY SEPARATE AND DISTINCT
   48  PROPERTY, UNLESS OTHERWISE PROVIDED IN THE MORTGAGE OR IN ANY EXTENSION,
   49  AMENDMENT OR MODIFICATION THEREOF OR INSTRUMENT AMENDATORY THERETO, EACH
   50  PROPERTY SHALL BE SOLD EITHER (A) SEPARATELY IN THE ORDER DESIGNATED  BY
   51  THE  MORTGAGEE (WHICH MAY BE ON A SINGLE SALE DATE, OR ON SEPARATE DATES
   52  AS PROVIDED IN THE NOTICE OF SALE), OR  (B)  AS  OTHERWISE  DIRECTED  BY
   53  ORDER  OF  THE SUPREME COURT FOR THE COUNTY IN WHICH THE SALE IS TO TAKE
   54  PLACE, PURSUANT TO A MOTION MADE UNDER THE INDEX NUMBER OF THE NON-JUDI-
   55  CIAL PROCEEDING FOR FORECLOSURE OF POWER OF SALE.  THE  MORTGAGEE  SHALL
   56  NOT  SCHEDULE  OR  CONDUCT THE SALE OF THE SUBSEQUENT PROPERTY SO DESIG-
       S. 4607                            12
    1  NATED UNTIL AFTER THE DEFICIENCY HAS BEEN DETERMINED IN ACCORDANCE  WITH
    2  SECTION  FOURTEEN  HUNDRED  NINETEEN  OF  THIS ARTICLE, WHEREUPON IN THE
    3  EVENT A DEFICIENCY EXISTS, THE MORTGAGEE MAY SCHEDULE  AND  CONDUCT  THE
    4  SALE OF THE SUBSEQUENT PROPERTY IN THE ORDER DESIGNATED BY THE MORTGAGEE
    5  UNLESS  THE COURT ORDERS OTHERWISE, SUCH SALE TO BE CONDUCTED IN ACCORD-
    6  ANCE WITH THE PROVISIONS OF THIS ARTICLE.
    7    S 1417. COSTS AND EXPENSES ALLOWED.  THE MORTGAGEE SHALL  BE  ENTITLED
    8  TO  RECOVER OUT OF THE PROCEEDS OF SALE, OR UPON APPLICATION FOR A DEFI-
    9  CIENCY JUDGMENT, THE COSTS AND EXPENSES OF:
   10    1. ADVERTISEMENT OF THE NOTICE OF SALE, AS DETERMINED BY PAID RECEIPTS
   11  THEREFOR;
   12    2. SERVICE OF THE NOTICE OF INTENTION TO FORECLOSE AND THE  NOTICE  OF
   13  SALE;
   14    3.  PREPARATION AND FILING OF THE AFFIDAVITS REQUIRED UNDER THIS ARTI-
   15  CLE, THE POWER OF SALE DEED, AND REPORT OF SALE;
   16    4. THE CONDUCT OF THE SALE, INCLUDING THE FEE OF THE OFFICER  CONDUCT-
   17  ING THE SALE, WHICH, EXCEPT AS SHALL BE DIRECTED BY THE COURT, SHALL NOT
   18  EXCEED ONE THOUSAND DOLLARS;
   19    5.  RECORDING  OF  THE  DEED  IF THE MORTGAGEE IS THE PURCHASER AT THE
   20  SALE;
   21    6. FILING OR RECORDING THE MORTGAGE IF NOT THERETOFORE PAID FOR BY THE
   22  MORTGAGOR; AND
   23    7. THE REASONABLE ATTORNEYS' FEES  INCURRED  IN  CONNECTION  WITH  THE
   24  NON-JUDICIAL  PROCEEDING  UNDER  THIS  ARTICLE WHICH, EXCEPT AS SHALL BE
   25  DIRECTED BY THE COURT, SHALL NOT EXCEED THE SUM OF  TWENTY-FIVE  HUNDRED
   26  DOLLARS.
   27    FEES  DESIGNATED IN THIS SECTION IN DOLLAR AMOUNTS SHALL BE INDEXED IN
   28  ACCORDANCE WITH CHANGES IN  THE  FEDERAL  CONSUMER  PRICE  INDEX  -  ALL
   29  CONSUMERS, OVER BASE YEAR TWO THOUSAND FIFTEEN.
   30    S 1418. APPLICATION FOR SURPLUS.  1. ANY PERSON OR ENTITY CLAIMING THE
   31  SURPLUS  MONEYS  ARISING  FROM  THE SALE OF THE MORTGAGED PROPERTY, OR A
   32  PART THEREOF, MAY, WITHIN TWENTY DAYS AFTER THE FILING OF THE REPORT  OF
   33  THE  SALE,  FILE  UNDER  THE  INDEX  NUMBER ASSIGNED TO THE NON-JUDICIAL
   34  PROCEEDING IN THE OFFICE OF THE CLERK OF THE COUNTY WHERE THE SALE  TOOK
   35  PLACE,  A  WRITTEN NOTICE OF THE CLAIM, STATING THE NATURE AND EXTENT OF
   36  THE CLAIM. THEREAFTER, AN APPLICATION, WITH PROOF OF  SERVICE  UPON  THE
   37  MORTGAGOR,  THE  RECORD  OWNER  OF THE MORTGAGED PROPERTY, AND ANY OTHER
   38  PERSON WHO OR ENTITY WHICH HAS FILED A CLAIM TO THE SURPLUS  MONEYS  MAY
   39  BE  MADE  BY  ANY  PERSON  WHO  OR ENTITY WHICH HAS FILED A CLAIM TO THE
   40  SURPLUS MONEYS, SEEKING AN ORDER DIRECTING PAYMENT THEREOF  OUT  OF  THE
   41  SURPLUS MONEYS.
   42    2. UPON SUCH APPLICATION, OR AT ANY TIME WITHIN THREE MONTHS THEREAFT-
   43  ER, ON NOTICE TO ALL PERSONS WHO OR ENTITIES WHICH HAVE BEEN SERVED WITH
   44  THE  NOTICE  OF  SALE  OR FILED CLAIMS TO THE SURPLUS MONEY, OR ANY PART
   45  THEREOF, ON MOTION OF ANY PERSON WHO OR ENTITY WHICH HAS FILED A  NOTICE
   46  OF CLAIM TO THE SURPLUS MONEY, OR ANY PART THEREOF, THE COURT, BY REFER-
   47  ENCE  OR  OTHERWISE,  SHALL  ASCERTAIN  AND REPORT THE AMOUNT DUE TO THE
   48  APPLICANT, OR TO ANY PERSON WHO OR ENTITY WHICH HAS A LIEN ON  OR  CLAIM
   49  TO  SUCH  SURPLUS  MONEY,  OR  ANY PART THEREOF, AND THE PRIORITY OF THE
   50  SEVERAL LIENS OR CLAIMS THEREON, AND SHALL  ORDER  DISTRIBUTION  OF  THE
   51  SURPLUS MONEYS BY THE COUNTY TREASURER.
   52    3.  THE OWNER OF THE EQUITY OF REDEMPTION, OR ANY PERSON WHO OR ENTITY
   53  WHICH HAS RESPONDED TO THE APPLICATION, OR  ANY  PERSON  WHO  OR  ENTITY
   54  WHICH  FILES  A NOTICE OF CLAIM OR HAS A RECORDED LIEN AGAINST THE MORT-
   55  GAGED PROPERTY SHALL BE GIVEN NOTICE BY MAIL OR IN SUCH OTHER MANNER  AS
   56  THE  COURT  SHALL  DIRECT,  TO  ATTEND ANY HEARING ON DISPOSITION OF THE
       S. 4607                            13
    1  SURPLUS MONEYS AND SHALL HAVE THE RIGHT TO RECEIVE DISTRIBUTION  OF  THE
    2  SURPLUS  MONEYS,  OR  ANY PORTION THEREOF, IN ANY MANNER DIRECTED BY THE
    3  COURT.
    4    S  1419. DEFICIENCY JUDGMENT.  1. UNLESS OTHERWISE AGREED BY THE MORT-
    5  GAGOR AND THE MORTGAGEE IN THE MORTGAGE, A PERSON WHO  OR  ENTITY  WHICH
    6  OWES  PAYMENT  OF AN OBLIGATION SECURED BY THE MORTGAGE FORECLOSED UNDER
    7  THIS ARTICLE IS LIABLE FOR THE WHOLE RESIDUE, OR SO MUCH THEREOF AS  THE
    8  COURT  MAY  DETERMINE, OF THE DEBT REMAINING UNSATISFIED, AFTER THE SALE
    9  OF THE MORTGAGED PROPERTY AND  THE  APPLICATION  OF  THE  PROCEEDS,  THE
   10  AMOUNT  OF  THE DEBT REMAINING UNSATISFIED TO BE DETERMINED BY THE COURT
   11  AS HEREIN PROVIDED.
   12    2. NOT LATER THAN NINETY DAYS AFTER THE DELIVERY TO THE  PURCHASER  OF
   13  THE  POWER OF SALE DEED TO THE MORTGAGED PROPERTY, THE PERSON TO WHOM OR
   14  ENTITY TO WHICH SUCH RESIDUE SHALL BE  OWING  MAY  MAKE  AN  APPLICATION
   15  UNDER  THE  INDEX  NUMBER  ASSIGNED  THE NON-JUDICIAL PROCEEDING, IN THE
   16  SUPREME COURT FOR THE COUNTY IN WHICH THE MORTGAGED PROPERTY IS LOCATED,
   17  OR IN A COUNTY IN WHICH THE SALE HAS TAKEN PLACE FOR A DEFICIENCY  JUDG-
   18  MENT AGAINST THE PERSONS OR ENTITIES LIABLE THEREFOR UPON NOTICE TO SUCH
   19  PERSONS  OR  ENTITIES. SUCH NOTICE SHALL BE SERVED PERSONALLY OR IN SUCH
   20  OTHER MANNER AS THE COURT MAY DIRECT. UPON SUCH APPLICATION, THE  COURT,
   21  WHETHER OR NOT THE PERSON OR ENTITY CLAIMED TO BE LIABLE FOR THE RESIDUE
   22  APPEARS,  SHALL  DETERMINE,  UPON  REASONABLE APPRAISAL BY A REAL ESTATE
   23  APPRAISER LICENSED IN THE STATE OF NEW YORK, OR OTHERWISE  AS  IT  SHALL
   24  DIRECT,  THE  FAIR AND REASONABLE MARKET VALUE OF THE MORTGAGED PROPERTY
   25  AS OF THE DATE THE MORTGAGED PROPERTY WAS BID  ON  AT  AUCTION  OR  SUCH
   26  NEAREST  EARLIER  DATE AS THERE SHALL HAVE BEEN ANY MARKET VALUE THEREOF
   27  AND SHALL MAKE AN ORDER DIRECTING THE ENTRY  OF  A  DEFICIENCY  JUDGMENT
   28  AGAINST  THE  PERSON OR ENTITY LIABLE THEREFOR. SUCH DEFICIENCY JUDGMENT
   29  SHALL BE FOR AN AMOUNT EQUAL TO THE AGGREGATE AMOUNT OF THE INDEBTEDNESS
   30  DUE TO THE MORTGAGEE, TOGETHER WITH ALL  OTHER  SUMS  RECOVERABLE  UNDER
   31  SECTION  FOURTEEN HUNDRED SEVENTEEN OF THIS ARTICLE AS SUCH SHALL BE SET
   32  FORTH IN THE REPORT OF SALE PURSUANT TO  SUBDIVISION  THREE  OF  SECTION
   33  FOURTEEN  HUNDRED  FOURTEEN  OF  THIS  ARTICLE LESS THE HIGHER OF:   (A)
   34  MARKET VALUE OF THE MORTGAGED PROPERTY AS DETERMINED BY THE COURT OR (B)
   35  THE SALES PRICE OF THE MORTGAGED PROPERTY AT THE PUBLIC SALE.
   36    3. IF NO APPLICATION FOR A DEFICIENCY JUDGMENT SHALL BE MADE AS HEREIN
   37  PRESCRIBED, THE PROCEEDS OF THE SALE REGARDLESS OF  THE  AMOUNT  THEREOF
   38  SHALL  BE DEEMED TO BE IN FULL SATISFACTION OF THE MORTGAGE DEBT, AND NO
   39  RIGHT TO RECOVER ANY DEFICIENCY IN ANY ACTION OR PROCEEDING SHALL EXIST.
   40    S 1420. RECEIVER. 1. WHERE THE MORTGAGE PROVIDES THAT THE MORTGAGEE IS
   41  ENTITLED TO THE APPOINTMENT OF A RECEIVER FOR  THE  MORTGAGED  PROPERTY,
   42  THE  MORTGAGEE  SHALL HAVE THE RIGHT AT ANY TIME AFTER THE FILING OF THE
   43  NOTICE OF PENDENCY PURSUANT TO SECTION FOURTEEN HUNDRED  THREE  OF  THIS
   44  ARTICLE  TO  MAKE  AN APPLICATION UNDER THE INDEX NUMBER ASSIGNED TO THE
   45  NON-JUDICIAL PROCEEDING, IN THE SUPREME COURT IN THE COUNTY IN WHICH THE
   46  SALE TAKES PLACE, FOR THE APPOINTMENT OF A RECEIVER.
   47    2. WHERE THE MORTGAGE PROVIDES THAT A RECEIVER MAY BE APPOINTED  WITH-
   48  OUT  NOTICE  OR  CONTAINS  THE  COVENANT SET FORTH IN SUBDIVISION TEN OF
   49  SECTION TWO HUNDRED FIFTY-FOUR OF THE REAL PROPERTY LAW,  NOTICE  OF  AN
   50  APPLICATION  FOR SUCH APPOINTMENT SHALL NOT BE REQUIRED AND THE RECEIVER
   51  SHALL BE APPOINTED BY THE COURT PURSUANT TO AN ORDER  SUBMITTED  BY  THE
   52  MORTGAGEE  SIMULTANEOUSLY  WITH, OR AT ANY TIME AFTER, THE FILING OF THE
   53  APPLICATION THEREFOR.
   54    3. WHERE A RECEIVER HAS BEEN APPOINTED, UPON THE  APPLICATION  OF  THE
   55  MORTGAGEE, THE COURT MAY DIRECT THAT THE RECEIVER OF THE RENTS APPLY THE
   56  RENTS  RECEIVED  BY THE RECEIVER TOWARDS THE PAYMENT OF ACCRUED INTEREST
       S. 4607                            14
    1  ON THE MORTGAGE, PROVIDED DUE PROVISION SHALL HAVE  BEEN  MADE  FOR  THE
    2  PAYMENT  OF TAXES AND ORDINARY AND NECESSARY EXPENSES FOR THE OPERATION,
    3  REPAIR AND MAINTENANCE OF THE MORTGAGED PROPERTY AND SUCH OTHER EXPENSES
    4  AS  THE  COURT MAY DIRECT. ANY MONEYS SO PAID OVER BY THE RECEIVER SHALL
    5  BE DEDUCTED FROM THE AMOUNT DUE ON THE MORTGAGE, OR THE  NOTE,  BOND  OR
    6  OBLIGATION SECURED THEREBY, AND THE MORTGAGEE'S AFFIDAVIT OF THE INDEBT-
    7  EDNESS  FILED  WITH  THE  REPORT  OF  SALE  PURSUANT TO SECTION FOURTEEN
    8  HUNDRED FOURTEEN OF THIS ARTICLE SHALL SO STATE THE AMOUNTS THEREOF.
    9    4. IN A CITY WITH A POPULATION OF ONE  MILLION  OR  MORE  PERSONS,  AN
   10  ORDER APPOINTING A RECEIVER TO RECEIVE THE RENTS AND PROFITS OF A MULTI-
   11  PLE DWELLING SHALL PROVIDE THAT THE RECEIVER:
   12    (A)  REGISTER  WITH ANY MUNICIPAL DEPARTMENT AS PROVIDED BY APPLICABLE
   13  LAW; AND
   14    (B) EXPEND RENTS AND INCOME AND PROFITS AS  DESCRIBED  IN  SUBDIVISION
   15  THREE  OF  THIS  SECTION,  EXCEPT  THAT A PRIORITY SHALL BE GIVEN TO THE
   16  CORRECTION OF IMMEDIATELY HAZARDOUS AND HAZARDOUS VIOLATIONS OF  HOUSING
   17  MAINTENANCE  LAWS WITHIN THE TIME SET BY ORDERS OF ANY MUNICIPAL DEPART-
   18  MENT, OR, IF NOT FEASIBLE, SEEK A POSTPONEMENT OF THE TIME  FOR  COMPLI-
   19  ANCE.
   20    5.  THE  RECEIVER SHALL BE ENTITLED TO SUCH COMMISSIONS, NOT EXCEEDING
   21  FIVE PERCENT OF THE GREATER OF (A) THE SUMS RECEIVED BY THE RECEIVER  OR
   22  (B)  THE  SUMS  DISBURSED  BY  THE  RECEIVER,  AS THE COURT BY WHICH THE
   23  RECEIVER IS APPOINTED ALLOWS.
   24    S 1421. RIGHT TO SEEK JUDICIAL INTERVENTION; MORTGAGEE'S LIABILITY FOR
   25  FAILURE TO COMPLY WITH THIS  ARTICLE.  1.  IF  THE  MORTGAGEE  COMMENCES
   26  PROCEEDINGS  UNDER  THIS  ARTICLE TO FORECLOSE A MORTGAGE, OR EXTENSION,
   27  AMENDMENT, MODIFICATION OR CONSOLIDATION THEREOF, EXECUTED PRIOR TO  THE
   28  EFFECTIVE  DATE  OF THIS ARTICLE, THE MORTGAGOR MAY BY WRITTEN NOTICE TO
   29  THE MORTGAGEE REQUIRE THAT FURTHER FORECLOSURE PROCEEDINGS BE  CONDUCTED
   30  JUDICIALLY  AS PROVIDED IN ARTICLE THIRTEEN OF THIS CHAPTER. SUCH NOTICE
   31  MUST BE DELIVERED TO THE MORTGAGEE BY REGISTERED OR CERTIFIED  MAIL,  OR
   32  SUCH  OTHER  METHOD  AS MAY BE SPECIFIED IN THE MORTGAGE, POSTMARKED NOT
   33  LATER THAN FORTY DAYS AFTER THE DATE THE MORTGAGOR RECEIVES  THE  NOTICE
   34  OF  INTENTION  TO FORECLOSE AS PROVIDED IN THIS ARTICLE, AND SHALL STATE
   35  (A) THE DATE ON WHICH THE MORTGAGE, OR EXTENSION,  AMENDMENT,  MODIFICA-
   36  TION OR CONSOLIDATION THEREOF, THAT THE MORTGAGEE SEEKS TO FORECLOSE WAS
   37  EXECUTED,  AND (B) THAT THE MORTGAGOR IS EXERCISING ITS RIGHT UNDER THIS
   38  SECTION TO REQUIRE THAT THE FORECLOSURE OF  THE  MORTGAGE  BE  CONDUCTED
   39  THROUGH THE JUDICIAL PROCESS.
   40    2.  IF THE MORTGAGEE COMMENCES PROCEEDINGS UNDER THIS ARTICLE TO FORE-
   41  CLOSE A MORTGAGE, OR EXTENSION, AMENDMENT, MODIFICATION OR CONSOLIDATION
   42  THEREOF, EXECUTED AFTER THE EFFECTIVE DATE OF THIS ARTICLE, THE  MORTGA-
   43  GOR,  NOT LATER THAN FORTY DAYS AFTER THE DATE IT RECEIVES THE NOTICE OF
   44  INTENTION TO FORECLOSE AS PROVIDED IN THIS ARTICLE, MAY APPLY, BY  ORDER
   45  TO SHOW CAUSE, TO THE SUPREME COURT IN THE COUNTY IN WHICH THE MORTGAGED
   46  PROPERTY  IS  LOCATED FOR AN ORDER DIRECTING THAT FURTHER PROCEEDINGS BE
   47  CONDUCTED PURSUANT TO ARTICLE THIRTEEN OF THIS CHAPTER, AND FOR A TEMPO-
   48  RARY RESTRAINING ORDER STAYING FURTHER PROCEEDINGS  UNDER  THIS  ARTICLE
   49  PENDING  A HEARING OF THE APPLICATION. THE APPLICATION SHALL INCLUDE ONE
   50  OR MORE AFFIDAVITS (A) STATING WHETHER A PREVIOUS  APPLICATION  FOR  THE
   51  SAME OR SIMILAR RELIEF HAS BEEN MADE, AND IF SO THE OUTCOME THEREOF, AND
   52  (B) STATING FACTS TO SUPPORT ONE OR MORE OF THE FOLLOWING ALLEGATIONS:
   53    (1)  THAT  THE  MORTGAGE,  OR  EXTENSION,  AMENDMENT,  MODIFICATION OR
   54  CONSOLIDATION THEREOF, SOUGHT  TO  BE  FORECLOSED  DOES  NOT  CONTAIN  A
   55  PROVISION  PERMITTING  THE FORECLOSURE THEREOF BY POWER OF SALE OR OTHER
   56  NON-JUDICIAL MEANS;
       S. 4607                            15
    1    (2) THAT THE OBLIGATION SECURED BY THE  MORTGAGE  IS  INVALID  OR  NOT
    2  OTHERWISE DUE;
    3    (3)  THAT THE MORTGAGOR IS NOT IN DEFAULT UNDER THE MORTGAGE OR OTHER-
    4  WISE HAS A MERITORIOUS DEFENSE TO THE FORECLOSURE THEREOF;
    5    (4) THAT THE MORTGAGEE HAS NOT COMPLIED WITH THE TERMS AND  CONDITIONS
    6  OF THIS ARTICLE; OR
    7    (5)  THAT  UNDER THE FACTS AND CIRCUMSTANCES, ALLOWING THE FORECLOSURE
    8  TO PROCEED UNDER THIS ARTICLE WOULD CAUSE AN UNDUE HARDSHIP TO THE MORT-
    9  GAGOR.
   10    3. IF THE APPLICATION IS GRANTED, THE FORECLOSURE  SHALL,  UNLESS  THE
   11  COURT  SUBSEQUENTLY  ORDERS OTHERWISE, PROCEED PURSUANT TO ARTICLE THIR-
   12  TEEN OF THIS CHAPTER FOR THE JUDICIAL FORECLOSURE OF THE MORTGAGE.
   13    4. IF THE APPLICATION IS DENIED, THE SALE MAY PROCEED PURSUANT TO THIS
   14  ARTICLE.
   15    5. AT ANY TIME  THE  MORTGAGEE  MAY,  WITHOUT  PREJUDICE,  VOLUNTARILY
   16  DISCONTINUE  PROCEEDINGS  UNDER  THIS ARTICLE AND PURSUE SUCH RIGHTS AND
   17  REMEDIES AS MAY BE AVAILABLE TO IT UNDER ARTICLE THIRTEEN OF THIS  CHAP-
   18  TER.
   19    6. AFTER RECEIVING THE NOTICE OF INTENTION TO FORECLOSE, AN INTERESTED
   20  PARTY  OTHER  THAN  THE MORTGAGOR MAY PETITION THE COURT FOR RELIEF ONLY
   21  PURSUANT TO THE PROVISIONS OF ARTICLE SIXTY-THREE OF THE CIVIL  PRACTICE
   22  LAW  AND  RULES.  THE  COURT  SHALL  APPLY THE STANDARDS FOR PRELIMINARY
   23  INJUNCTIVE  RELIEF  AND  SHALL  CONSIDER  WHETHER  GRANTING  THE  RELIEF
   24  REQUESTED  WILL  PREJUDICE THE SUBSTANTIAL RIGHTS OF ANY PARTY OR UNDULY
   25  DELAY THE ADJUDICATION OF SUCH RIGHTS.
   26    7. ANY PERSON ENTITLED TO RECEIVE NOTICE OF THE INTENTION TO FORECLOSE
   27  OR NOTICE OF SALE UNDER THIS ARTICLE MAY RECOVER FROM THE MORTGAGEE  ANY
   28  DAMAGES CAUSED BY THE FAILURE OF THE MORTGAGEE TO COMPLY WITH THE PROCE-
   29  DURES AND CONDITIONS SET FORTH IN THIS ARTICLE.
   30    S  2.  This act shall take effect immediately; provided, however, that
   31  any proceeding commenced following the expiration and repeal  of  former
   32  article  14  of the real property actions and proceedings law on July 1,
   33  2009, which otherwise would have been eligible under such article  shall
   34  be  eligible under this act, pursuant to an agreement of both parties to
   35  the proceeding, upon the effective date of this act.