Andrew Keshner, New York Law Journal
Advocates of homeowners facing foreclosure are pushing for a change in court rules to remove an obstacle that has put many homeowners in a judicial limbo, unable to participate in settlement conferences to make their debt more manageable.
In particular, the advocates have proposed moving up the point at which attorneys for lenders must submit an affirmation attesting to the accuracy of court documents.
“If the whole point of the [affirmation] rule is to prevent plaintiff lawyers from knowingly filing false or inaccurate filings in foreclosure cases, make it a rule that the affirmation be filed when they file the complaint, and not wait until they file the request for judicial intervention,” said Jacob Inwald, director of foreclosure prevention litigation for Legal Services NYC.
Under current procedure, lenders can file a summons and complaint for a foreclosure action without triggering a mandatory settlement conference. A conference is scheduled only after proof that the summons has been served, a specialized request for judicial intervention and the attorney’s affirmation are submitted.
Since the implementation of the affirmation requirement in October 2010, advocates charge that lenders have delayed filing the request for judicial intervention so that they do not have to file the affirmation right away. That has created a “shadow docket” of cases that do not show up in official court statistics or trigger a settlement conference.
The courts recorded 46,572 requests for judicial intervention in 2010. In 2011, the first full year after the affirmation went into effect, there were only 16,156. Only 1,135 were received in the first month of the year.
Judge Judy Harris Kluger, chief of policy and planning for the court system acknowledged that “thousands” of unrecorded foreclosure actions may exist.
“We are looking at some different options as to how to address this inventory of cases. At this point, we’re not prepared to announce anything,” Judge Kluger said. “However, in the near future, we hope to present a plan.”
Judge Kluger expressed doubts about moving the affirmation requirement to the beginning of the foreclosure process. She pointed out that CPLR 305 governs what is included with the summons and complaint, and said that any additional filing requirements might require legislative action.

