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The Consequences of Imperfect Foreclosure Affirmations
An administrative order issued by the state's chief judge requires counsel for a foreclosing mortgagee to prepare an affirmation establishing the factual accuracy of the documents on which the foreclosure action is based. When the mortgagor has conceded default on the mortgage, what perceived deficiencies in the affirmation preclude issuance of an order of reference and a judgment of foreclosure and sale? The First Department recently faced that issue in Bank of America v. Brannon, NYLJ 11/1/17, p. 22., col. 1, and the issue has also provoked litigation in the Second Department. The import of those cases appears to be that when the mortgagee substantially complies with the administrative order, the mortgagee will be entitled to proceed with the foreclosure.
History and Content of the Administrative Order
In response to allegations of widespread “robosigning” of mortgage documents, former Chief Judge Jonathan Lippman issued Administrative Order 548/10 in 2010. The original order was superseded by Administrative Order 431/11, which essentially requires preparation of two affirmations in any residential foreclosure action. Counsel for the foreclosing mortgagee must prepare an affirmation establishing that he or she communicated with a representative of the mortgagee, and that the representative reviewed the documents related to the mortgage for factual accuracy and confirmed the factual accuracy of the allegations in the complaint.
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