ORDERED that this motion (#003) by defendant/mortgagor Edward Novetti, for an order staying the public sale of the subject premises pending a mandatory settlement conference to be scheduled by the court, is considered under CPLR 3408 and is denied.

This mortgage foreclosure action was commenced by the plaintiff on February 13, 2008 as defendant Novetti ceased paying the mortgage at issue herein on October 1, 2007. Following the [*2]defaults of defendant Novetti and the other defendants in answering the plaintiff's summons and complaint, the court granted the plaintiff's motion for an order of reference on September 16, 2008. During the pendency of that application, which languished in the Office of Special Term from May 8, 2008 until September 10, 2008 when it was forwarded to chambers, counsel for defendant Novetti appeared by service of a notice of appearance dated August 18, 2008.

On December 16, 2008, the plaintiff served defendant's counsel with a notice of motion for entry of a judgment of foreclosure and sale and papers in support thereof. The motion, which was not opposed by defendant Novetti, was granted by order dated January 26, 2009. Thereafter, the plaintiff served a copy of the judgment, with notice of its entry, upon counsel for defendant Novetti.

On February 5, 2009, defendant Novetti filed a demand for a mandatory settlement conference pursuant to CPLR 3408. By order to show cause dated March 27, 2009 (Jones, J.), defendant Novetti moved to stay all proceedings contemplated by the January 26, 2009 judgment of foreclosure and sale pending further order of this court and the scheduling and holding of a settlement conference. For the reasons set forth below, this motion is denied.

In August of 2008, the Legislature enacted the Subprime Residential Loan and Foreclosure Law. The purpose of this sweeping legislative enactment is to provide assistance to homeowners currently at risk of losing their homes to foreclosure and to establish protections aimed at mitigating the current subprime credit crisis (see Laws of 2008, Ch 472-3A). One of the procedures provided by this new legislation is the "settlement conference."

Newly enacted CPLR 3408 mandates that in every residential mortgage foreclosure action commenced on or after September 1, 2008, wherein the loan at issue constitutes a high cost, subprime or nontraditional loan as defined in Banking Law 6-l or RPAPL § 1304, the court shall hold a mandatory settlement conference with defendants/mortgagors who reside at the subject premises, within 60 days after the filing of proof of service of the summons and complaint. Since this action was commenced on February 13, 2008, defendant Novetti is not entitled to a mandatory settlement conference of the type contemplated by CPLR 3408 and his application for such relief is denied.

The moving defendant's demand, asserted for the first time in his reply papers, for the scheduling of a voluntary conference pursuant to the Laws of 2008, Ch. 472 § 3-a is also denied. Under this unconsolidated, stop-gap legislation, voluntary conferences must be held in residential mortgage foreclosure actions which have not proceeded to judgment and in which the loan at issue is either a subprime or high cost loan as defined in § 1304 of RPAPL or Banking Law 6-l, provided the defendant/mortgagor resides at the mortgaged premises and requests such a conference after due notice sent by the court.

While the plaintiff admits that it has identified the subject loan as one which constitutes a subprime home loan within the purview of RPAPL § 1304, court records reflect that defendant Novetti was notified by the court of the availability of a settlement conference in November of 2008. [*3]However, no response thereto was received by the court prior to the entry of the judgment of foreclosure and sale on January 26, 2009. Since defendant Novetti's request for a voluntary conference was made on this motion and well after the entry of the judgment of foreclosure and sale, the court finds that defendant Novetti is not entitled to a voluntary conference of the type contemplated by the Laws of 2008, Ch. 472, § 3-a.

In view of the foregoing, defendant Novetti's demand for relief, including a stay of all proceedings contemplated by the judgment of foreclosure and sale, are denied. The stay imposed in the order to show cause dated March 27, 2009, is hereby lifted and vacated.

DATED: ____________________________________________

THOMAS F. WHELAN, J.S.C.