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Clerk's Office, Kings County
Commercial Division, Kings County
Law Library, Kings County

General Foreclosure Rules

The Judges of the Civil Term Supreme Court, in order to promote the efficient and impartial administration of justice, hereby adopt the following common and uniform rules. These Rules are arranged by subject matter. Rules pertaining to Matrimonial, Commercial, and Foreclosure Parts are incorporated herein via hyperlink. Where rules in such parts differ from general rules, specialized rules shall govern. Room changes may be made upon appropriate notice. 
Uniform Rules - Papers & Motions
Uniform Rules - Discovery Part Rules
Uniform Rules - Commercial Division
Uniform Rules - Matrimonial
Uniform Rules - Condemnation Part Rules

  1. All foreclosure matters dealing with the same block and lot number shall be assigned to the same judge even where an earlier matter has been previously disposed.
  2. In all foreclosure proceedings, the following form orders, judgments, and applications, available at the Clerk’s office or online, must be utilized: the Order of Reference; the Judgement of Foreclosure and Sale; a Deficiency Judgment; the Order in a Surplus Money Proceeding; and the Referee’s Application for Additional Compensation.
  3. The Clerk is authorized to reject:
    • Motion papers that are not in compliance with the CPLR;
    • Motion papers filed less than five (5) days before the return date of the motion;
    • An application for an Order of Reference or Judgment that does not contain a statement pursuant to CPLR 3408, indicating eligibility/exemption from conference;
    • An application for surplus money that does not contain a recognized title search or its equivalent as an exhibit.
    • A discontinuance in a foreclosure action except upon court order after an RJI has been filed.
  4. A proposed order must be attached to any motion submitted to the E-file / Motion Support Office. In the event that a proposed order is not submitted with the motion, it must be submitted to the IAS Judge within 60 days or the motion may be deemed abandoned.
  5. Each Order of Reference must have appended thereto, the history of the property by way of a chain of assignment, the date of the assignment, and a reference to the tab where that assignment is located.
  6. Every affidavit for an exemption from a conference made pursuant to CPLR 3408 and RPAPL 1304 must specify the grounds for same and provide supporting documentation and affidavits from persons with direct knowledge. Where the claim is that the borrower is not living in the subject house, then an affidavit of investigation substantiating this allegation must be appended which states inter alia that the borrower is not living in the house and that no action by the mortgagee or its agents procured same. This affidavit shall be included in the motion for a Judgment of Foreclosure and Sale.
  7. Within one year after the signing and entry of an Order of Reference, an application for a Judgment of Foreclosure and Sale must be made. Such period of time will be suspended by the filing a Forbearance or Settlement Agreement with the clerk of this court. Failure to comply will result in an automatic dismissal of the action.
  8. All Forbearance Agreements must be filed with the Foreclosure Clerk of the Court within twenty (20) days of the execution thereof. No action may be discontinued except upon application to discontinue or stipulation by the plaintiff to discontinue submitted for approval by the Court. Payment of the fee required by CPLR 8020(d)(1) shall precede submission of the proposed discontinuance to the Court. Where a defendant homeowner has appeared for a settlement conference in a residential foreclosure action, either in person or by an attorney, an application to discontinue or stipulation of discontinuance must be served on opposing counsel or pro se defendant.

Foreclosure Settlement Part Rules

  1. The purpose of this part is to preserve community housing, preserve banking funds, and help a homeowner avoid the loss of his or her home.
  2. A conference may be required by statute or mandated by appearance, reference, or request.
  3. An appearing homeowner shall file a notice of appearance in the action indicating the homeowner’s name, address, telephone number, cell phone number, and e-mail address on a form provided by the Court, with the clerk of the Foreclosure Conference Part who shall then forward it for appropriate filing.
  4. Each appearing homeowner shall be provided with an information sheet that informs him/her of the foreclosure process.
  5. Plaintiffs’ counsel must appear in the Foreclosure Conference Part with the work-out package describing potential loss mitigation options, reasonably current payoff and reinstatement figures, and with settlement authority and/or a direct contact number where a servicing agent with settlement authority can be reached and participate in settlement discussions before the Court.
  6. The homeowner or his/her agent shall provide to the conference part employment verification, tax, and other records as required.
  7. For cases involving servicing agents who have opted into the Home Affordable Modification Program (HAMP), counsel shall appear in the Foreclosure Conference Part with a status report regarding the outcome of the servicing agents’ evaluation for HAMP modification, and specific written justification with supporting details if modification under HAMP was denied.
  8. All foreclosure cases in which the servicing agent, as well as the homeowner, has agreed to a trial modification, whether under HAMP or otherwise, shall be given a control date in the Foreclosure Conference Part coincident with the trial modification period.
  9. In cases where settlement cannot be reached, plaintiffs’ counsel shall submit a letter to the Foreclosure Conference Part, and to the IAS Part, indicating the appearance of the homeowner and the good faith basis for the termination of the settlement negotiations that may result in foreclosure which may lead to the defendant’s losing his/her home, cf. CPLR 3408(a).
  10. Foreclosure cases will be marked off the Foreclosure Conference calendar if: (a) the defendant has failed to appear for two (2) scheduled settlement conferences; (b) the Court has determined that the parties would not benefit from further settlement discussions; or (c) a settlement has been reached and the plaintiff has filed a Stipulation of Discontinuance or Forbearance Agreement with the Foreclosure Settlement Conference Part as well as the Court.
  11. Any agency or representative assisting the homeowner shall provide copies of all documents, including the completed work-out package, to the homeowner, who should bring them to the settlement conference.
  12. All parties must appear at the settlement conference until the action is settled by means of a modification or other agreement signed by all parties as well as the IAS judge or the matter is referred to the IAS part.

Foreclosure Auction Rules

General

  1. The Referee and all interested parties must be present at the time and place designated by the Foreclosure Dept. and subsequently published in the Notice of Sale.
  2. The referee, or his/her designee, must provide a copy of the Terms of Sale, including any known encumbrances, upon request.
  3. Referees shall announce any encumbrance on the property prior to bidding.
  4. Referees will accept either 1) cash; or 2) certified or bank check made payable to the Referee. No double-endorsed checks will be accepted.
  5. A successful bidder must have in his/her possession at the time of the bid the full 10% of the sum bid, in cash or certified or bank check to be made payable to the Referee.
  6. All bidders must have proof of identification and will be required to stand and state their names and addresses on the record at the time the bid is made.
  7. No sale will be deemed final until the full 10% deposit has been paid to the Referee and a contract has been signed, which must be done in the courthouse immediately following the sale.
  8. If a successful bidder fails to immediately pay the deposit and sign the Terms of Sale, the property will be promptly returned to auction the same day.
  9. Bidders are cautioned that the failure to pay the full purchase price bid and appropriate closing costs at a closing to be scheduled within thirty (30) days following the auction may result in the forfeiture of the 10% deposit. The consent of the Court will be required for adjournment of the closing beyond ninety (90) days. The Referee shall transfer title only to the successful bidder of the auction.  Assignment of bids is prohibited.
  10. The amount of the successful bid, which will become the “purchase price,” will be recorded by the court reporter.
  11. If the successful bidder defaults in concluding the transaction at the purchase price, he/she may be liable for the difference if the property is subsequently sold at auction for a sum that is inadequate to cover all items allowed in the Final Order and Judgment.
  12. It is the responsibility of the bidder to acquaint him/herself with the property, any encumbrances thereon, and the Terms of Sale before placing a bid and to be certain that adequate funds are available to make good the bid. The failure of the successful bidder to complete the transaction under the terms bid will presumptively result in the bidder’s preclusion from bidding at auction for a period of sixty (60) days.
  13. The court-appointed referee shall determine the date of the sale which is to be held at the time and place indicated in the Judgement of Foreclosure and Sale and shall notify plaintiff sufficiently in advance thereof to permit publication of the Notice of Sale in compliance with RPAPL §231.
  14. It is the plaintiff’s responsibility to arrange for publication. The costs of publication may be recouped from the proceeds of the sale.
  15. A Notice of Sale must be submitted to the Foreclosure Department at least ten (10) days prior to the date of the auction. A copy of the Notice of Sale must simultaneously be sent to the owner of the equity of redemption at both his/her last known address and the property address. An affidavit of service of such notice shall be presented to the clerk on or before the auction sale.
  16. It is the plaintiff’s responsibility to notify the referee of any encumbrances in advance of the sale date.
  17. In the event plaintiff adjourns or cancels the sale, at least five (5) days' notice, both written and telephonic must be given to the referee. If such notice is not timely given, plaintiff shall pay $250.00 to the referee in compensation.
  18. A legally competent representative of plaintiff authorized to act on plaintiff’s behalf, must appear at the auction sale.
  19. The upset price may not be greater than the amount stated in the referee’s report of sale together with CPLR judgment interest running from the filing of the Judgment of Foreclosure and Sale together with the amount represented by receipted bills for taxes. The referee appointed for the sale of the property may add judgment interest and taxes to the upset price at the time of the auction. Any additional maintenance charges or other expenses must be by separate order of the Court.

Surplus Funds

  1. A court clerk will be present at all court-ordered foreclosure auctions. If there is a potential for Surplus Funds, the clerk will record the sale price, amount awarded in the final judgment of foreclosure, and the upset price, and enter that information in CCIS (Foreclosure Surplus Screen).
  2. When the sale price exceeds the greater of the judgment amount or upset price, the clerk will provide the referee conducting the sale a Surplus Monies Form at the auction to complete.
  3. The form will include the following information: a case caption; name, address, and telephone number of the referee; the plaintiff's representative and the purchaser; a judgment amount; and the upset and sale price. The form must be signed by the referee, plaintiff representative, and purchaser of the foreclosed property.
  4. The referee will complete the form at the auction, and deliver the signed form to the court clerk, who will subsequently provide it to the County Clerk.
  5. All cases with potential for Surplus Funds will be calendared for a control date in the Surplus Funds Part, no later than six months after the auction. (This is a non-appearance part.) On the control date, the clerk will consult the County Clerk Minutes. If Surplus Funds have been deposited or the Report of Sale indicates a deficiency, the appearance will be appropriately marked. In the event that no Report of Sale has been filed, but there are motions pending, the clerk will adjourn the case to a date beyond the motion return date in the Surplus Funds Part. If a Report of Sale has not been filed and no motions are pending, the case will be adjourned to the IAS Judge for further proceedings, as necessary, and the referee shall be notified.

Foreclosure Auction Plan

Foreclosure Auctions are held every Thursday in room 224 at 2:30PM

Referees or Plaintiffs must contact the Foreclosure Department to schedule an auction date. Inquiries may be made to: [email protected]. Requests via letter or telephone will not be accepted.

Inquiries shall include:   index number, caption, referee’s name, requested date and at least one alternative date.

Only one (1) request per e-mail is allowed.

While there is no current mask or distance mandate in effect, auction attendees are requested to practice social distancing whenever feasible.