[Second Reprint]

ASSEMBLY, No. 1257

STATE OF NEW JERSEY

216th LEGISLATURE

 

PRE-FILED FOR INTRODUCTION IN THE 2014 SESSION

 


 

Sponsored by:

Assemblyman  VINCENT PRIETO

District 32 (Bergen and Hudson)

Assemblyman  DANIEL R. BENSON

District 14 (Mercer and Middlesex)

Assemblyman  BENJIE E. WIMBERLY

District 35 (Bergen and Passaic)

Assemblyman  PAUL D. MORIARTY

District 4 (Camden and Gloucester)

Assemblyman  CARMELO G. GARCIA

District 33 (Hudson)

 

Co-Sponsored by:

Assemblyman Caputo, Assemblywomen Oliver, Mosquera, Assemblymen Gusciora, Wolfe, McGuckin, Assemblywoman Gove, Assemblyman Rumpf, Assemblywomen Jimenez, Jasey, Pinkin and Lampitt

 

 

 

 

SYNOPSIS

     Creates cause of action for failure to maintain certain vacant properties; requires out-of-state creditors to designate in-State representative.

 

CURRENT VERSION OF TEXT

     As amended by the General Assembly on June 16, 2014.

  


An Act concerning the maintenance of certain residential properties, supplementing chapter 48 of Title 40 of the Revised Statutes and amending P.L.2008, c.127.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    (New section)  a.  The governing body of any municipality may 1[make, amend, repeal and enforce] adopt1 ordinances to regulate the care, maintenance, 1security,1 and upkeep of 1the exterior of1 vacant 1and abandoned1 residential properties on which a summons and complaint in an action to foreclose has been filed.

     b.    1(1)1An ordinance adopted pursuant to subsection a. of this section shall provide that the 1[person or entity] creditor1 filing the summons and complaint in an action to foreclose shall be responsible for the 1care,1 maintenance 1, security,1 and upkeep of 1the exterior of1 the vacant 1and abandoned1 residential property, and if located out-of-State, shall be responsible for appointing an in-State 1representative or1 agent to act for the foreclosing 1[person or entity] creditor1.

     1(2) An ordinance adopted pursuant to subsection a. of this section shall authorize a public officer, appointed pursuant to P.L.1942, c.112 (C.40:48-2.3 et seq.), or any other local official responsible for administration of any property maintenance or public nuisance code to issue a notice to the creditor filing the summons and complaint in an action to foreclose, if the public officer or other authorized municipal official determines that the creditor has violated the ordinance by failing to provide for the care, maintenance, security, and upkeep of the exterior of the property.  Such notice shall require the person or entity to correct the violation within 30 days of receipt of the notice, or within 10 days of receipt of the notice if the violation presents an imminent threat to public health and safety.  The issuance of a notice pursuant to this paragraph shall constitute proof that a property is “vacant and abandoned” for the purposes of P.L.2012, c.70 (C.2A:50-73).

     (3) An ordinance adopted pursuant to subsection a. of this section shall provide that an out-of-State creditor include the full name and contact information of the in-State representative or agent in the notice required to be provided pursuant to paragraph (1) of subsection a. of section 17 of P.L.2008, c.127 (C.46:10B-51).1

     c.    1[A creditor found by the municipal court of the municipality in which the property is located, or any other court of
competent jurisdiction, to be in violation of any ordinance, rule, or regulation adopted pursuant this section shall be subject to a fine of $2,500, payable by the creditor, for each day of the violation.]  (1) An out-of-State creditor subject to an ordinance adopted pursuant to subsection a. of this section found by the municipal court of the municipality in which the property subject to the ordinance is located, or by any other court of competent jurisdiction, to be in violation of the requirement to appoint an in-State representative or agent pursuant to the ordinance shall be subject to a fine of $2,500 for each day of the violation.  Any fines imposed on a creditor for the failure to appoint an in-State representative or agent shall commence on the day after the 10-day period set forth in paragraph (1) of subsection a. of section 17 of P.L.2008, c.127 (C.46:10B-51) for providing notice to the municipal clerk that a summons and complaint in an action to foreclose on a mortgage has been served.

     (2) A creditor subject to an ordinance adopted pursuant to subsection a. of this section found by the municipal court of the  municipality in which the property subject to the ordinance is located, or by any other court of competent jurisdiction, to be in violation of the requirement to correct a care, maintenance, security, or upkeep violation cited in a notice issued pursuant to the ordinance shall be subject to a fine of $1,500 for each day of the violation.  Any fines imposed pursuant to this paragraph shall commence 31 days following receipt of the notice, except if the violation presents an imminent risk to public health and safety, in which case any fines shall commence 11 days following receipt of the notice.1

     d.    No less than 20 percent of any money collected pursuant to subsection a. of this section shall be utilized by the municipality for municipal code enforcement purposes.

 

     2.    Section 17 of P.L.2008, c.127 (C.46:10B-51) is amended to read as follows:

     17.  a.  (1)  A creditor serving a summons and complaint in an action to foreclose on a mortgage on residential property in this State shall, within 10 days of serving the summons and complaint, notify the municipal clerk of the municipality in which the property is located that a summons and complaint in an action to foreclose on a mortgage has been filed against the subject property. The notice shall contain the name and contact information for the representative of the creditor who is responsible for receiving complaints of property maintenance and code violations, may contain information about more than one property, and shall be provided by mail or electronic communication, at the discretion of the municipal clerk.  1In the event the creditor that has served a summons and complaint in an action to foreclose on a residential property is located out-of-State, the notice shall also contain the full name and contact information of an in-State representative or agent who shall be responsible for the care, maintenance, security, and upkeep of the exterior of the property if it become vacant and abandoned.1  If the municipality has appointed a public officer pursuant to P.L.1942, c.112 (C.40:48-2.3 et seq.), the municipal clerk shall forward a copy of the notice to the public officer or shall otherwise provide it to any other local official responsible for administration of any property maintenance or public nuisance code.

     In the event that the property being foreclosed on is an affordable unit pursuant to the "Fair Housing Act," P.L.1985, c.222 (C.52:27D-301 et al.), then the creditor shall identify that the property is subject to the "Fair Housing Act."

     The notice shall also include the street address, lot and block number of the property, and the full name and contact information of an individual located within the State who is authorized to accept service on behalf of the creditor. The notice shall be provided to the municipal clerk within 10 days of service of a summons and complaint in an action to foreclose on a mortgage against the subject property.

     (2)   Within 30 days following the effective date of  P.L.2009, c.296 (C.2A:50-69 et al.), any creditor that has initiated a foreclosure proceeding on any residential property which is pending in Superior Court shall provide to the municipal clerk of the municipality in which the property is located, a listing of all residential properties in the municipality for which the creditor has foreclosure actions pending by street address and lot and block number. If the municipality has appointed a public officer pursuant to P.L.1942, c.112 (C.40:48-2.3 et seq.), the municipal clerk shall forward a copy of the notice to the public officer, or shall otherwise provide it to any other local official responsible for administration of any property maintenance or public nuisance code.

     b.    If the owner of a residential property vacates or abandons any property on which a foreclosure proceeding has been initiated or if a residential property becomes vacant at any point subsequent to the creditor's filing the summons and complaint in an action to foreclose on a mortgage against the subject property, but prior to vesting of title in the creditor or any other third party, and the 1exterior of the1 property is found to be a nuisance or in violation of any applicable State or local code, the local public officer, municipal clerk, or other authorized municipal official shall notify the creditor 1or the representative or agent of an out-of-State creditor, as applicable1 , which shall have the responsibility to abate the nuisance or correct the violation in the same manner and to the same extent as the title owner of the property, to such standard or specification as may be required by State law or municipal ordinance.  The municipality shall include a description of the conditions that gave rise to the violation with the notice of violation and shall provide a period of not less than 30 days from the creditor’s receipt of the notice for the creditor to remedy the violation.  If the creditor fails to remedy the violation within that time period, the municipality may impose penalties allowed for the violation of municipal ordinances pursuant to R.S.40:49-5.

     c.    1[(1)]1 If the municipality expends public funds in order to abate a nuisance or correct a violation on a residential property in situations in which the creditor was given notice pursuant to the provisions of subsection b. of this section but failed to abate the nuisance or correct the violation as directed, the municipality shall have the same recourse against the creditor as it would have against the title owner of the property, including but not limited to the recourse provided under section 23 of P.L.2003, c.210 (C.55:19-100).

     1[(2)  Any out-of-State creditor that has served a summons and complaint in an action to foreclose on a residential property, that subsequently becomes vacant, shall designate an in-State representative who shall be responsible for the care, maintenance, and up-keep of the vacant property.  The out-of-State creditor shall inform the public officer of the municipality in which the property is located, or, if the municipality has not designated a public officer pursuant to P.L.1942, c.112 (C.40:48-2.3 et seq.), the municipal clerk of the in-State representative responsible for maintenance of the property.]1

(cf.  P.L.2014, c.5, s.1)

 

      13.   Section 1 of P.L.2012, c.70 (C.2A:50-73) is amended to read as follows:

     1.    a.  For the purposes of this section, "vacant and abandoned" residential property means residential real estate with respect to which the mortgagee proves, by clear and convincing evidence, that the mortgaged real estate is vacant and has been abandoned or where a notice of violation has been issued pursuant to subsection b. of section 1 of P.L.    , c.   (C.       ) (pending before the Legislature as this bill)[Real] Where a notice of violation has not been issued pursuant to subsection b. of section 1 of P.L.    , c.   (C.       ) (pending before the Legislature has this bill), real property shall be deemed "vacant and abandoned" if the court finds that the mortgaged property is not occupied by a mortgagor or tenant as evidenced by a lease agreement entered into prior to the service of a notice of intention to commence foreclosure according to section 4 of the "Fair Foreclosure Act," P.L.1995, c.244 (C.2A:50-56), and 2[either a notice of violation has been issued pursuant to subsection b. of section 1 of P.L.    , c.   (C.    ) (pending before the Legislature as this bill) or]2 at least two of the following conditions exist:

     (1)   overgrown or neglected vegetation;

     (2)   the accumulation of newspapers, circulars, flyers or mail on the property;

     (3)   disconnected gas, electric, or water utility services to the property;

     (4)   the accumulation of hazardous, noxious, or unhealthy substances or materials on the property;

     (5)   the accumulation of junk, litter, trash or debris on the property;

     (6)   the absence of window treatments such as blinds, curtains or shutters;

     (7)   the absence of furnishings and personal items;

     (8)   statements of neighbors, delivery persons, or government employees indicating that the residence is vacant and abandoned;

     (9)   windows or entrances to the property that are boarded up or closed off or multiple window panes that are damaged, broken and unrepaired;

     (10) doors to the property that are smashed through, broken off, unhinged, or continuously unlocked;

     (11) a risk to the health, safety or welfare of the public, or any adjoining or adjacent property owners, exists due to acts of vandalism, loitering, criminal conduct, or the physical destruction or deterioration of the property;

     (12) an uncorrected violation of a municipal building, housing, or similar code during the preceding year, or an order by municipal authorities declaring the property to be unfit for occupancy and to remain vacant and unoccupied;

     (13) the mortgagee or other authorized party has secured or winterized the property due to the property being deemed vacant and unprotected or in danger of freezing;

     (14) a written statement issued by any mortgagor expressing the clear intent of all mortgagors to abandon the property;

     (15) any other reasonable indicia of abandonment.

     b.    For the purposes of this section, a residential property shall not be considered "vacant and abandoned" if, on the property:

     (1)   there is an unoccupied building which is undergoing construction, renovation, or rehabilitation that is proceeding diligently to completion, and the building is in compliance with all applicable ordinances, codes, regulations, and statutes;

     (2)   there is a building occupied on a seasonal basis, but otherwise secure; or

     (3)   there is a building that is secure, but is the subject of a probate action, action to quiet title, or other ownership dispute.

     c.    In addition to the residential mortgage foreclosure procedures set out in the "Fair Foreclosure Act," P.L.1995, c.244 (C.2A:50-53 et seq.), a summary action to foreclose a mortgage debt secured by residential property that is vacant and abandoned may be brought by a lender in the Superior Court.  In addition, a lender may, at any time after filing a foreclosure action, file with the court, in accordance with the Rules Governing the Courts of the State of New Jersey, an application to proceed in a summary manner because the residential property that is the subject of the foreclosure action is believed to be "vacant and abandoned"; provided, however, that this section shall not apply to a foreclosure of a timeshare interest secured by a mortgage.

     d.    (1) In addition to the service of process required by the Rules of Court, a lender shall establish, for the entry of a residential foreclosure judgment under this section, that a process server has made two unsuccessful attempts to serve the mortgagor or occupant at the residential property, which attempts must be at least 72 hours apart, and during different times of the day, either before noon, between noon and 6 P.M., or between 6 P.M. and 10 P.M.

     (2)   In addition to any notices required to be served by law or the Rules of Court, a lender shall, with any order to show cause served as original service of process or a motion to proceed summarily, serve a notice that the lender is seeking, on the return date of the order to show cause, or on the date fixed by the court, to proceed summarily for entry of a residential foreclosure judgment because the property is vacant and abandoned.

     (3)   When a property is deemed vacant and abandoned as herein defined, a lender shall not be required to serve the debtor with the notice to cure required by section 6 of the "Fair Foreclosure Act," P.L.1995, c.244 (C.2A:50-58).

     e.    (1) The court may enter a final residential mortgage foreclosure judgment under this section upon a finding, (a) by clear and convincing evidence, that the residential property is vacant and abandoned as defined under subsection a. of this section, and (b) that a review of the pleadings and documents filed with the court, as required by the Rules of Court, supports the entry of a final residential mortgage foreclosure judgment.

     (2)   A final residential mortgage foreclosure judgment under this section shall not be entered if the court finds that:

     (a)   the property is not vacant or abandoned; or

     (b)   the mortgagor or any other defendant has filed an answer, appearance, or other written objection that is not withdrawn and the defenses or objection asserted provide cause to preclude the entry of a final residential mortgage foreclosure judgment.

     f.     If a final residential mortgage foreclosure judgment under this section is not entered on the original or adjourned return date of an order to show cause or the date fixed by the court to proceed summarily, the court may direct that the foreclosure action continue on the normal track for residential mortgage foreclosure actions for properties that are not vacant and abandoned and the notice to cure served with the order to show cause or the order fixing that date for the matter to proceed summarily shall be of no effect.

     g.    All actions brought to foreclose on real property pursuant to this section shall proceed in accordance with the Rules of Court.

     h.    Nothing in this section is intended to supersede or limit other procedures adopted by the Court to resolve residential mortgage foreclosure actions, including, but not limited to, foreclosure mediation.

     i.     Nothing in this section shall be construed to affect the rights of a tenant to possession of a leasehold interest under the Anti-Eviction Act, P.L.1974, c.49 (C.2A:18-61.1 et seq.), the "New Jersey Foreclosure Fairness Act," P.L.2009, c.296 (C.2A:50-69 et seq.), or any other applicable law.

     j.     Notwithstanding paragraph (3) of subsection a. of section 12 of P.L.1995, c.244 (C.2A:50-64) to the contrary, if the court makes a finding in the foreclosure judgment that the property is vacant and abandoned, the sheriff shall sell the property within 60 days of the sheriff's receipt of any writ of execution issued by the court.  If it becomes apparent that the sheriff cannot comply with the provisions of this subsection, the foreclosing plaintiff may apply to the court for an order appointing a Special Master or judicial agent to hold the foreclosure sale.1

(cf:  P.L.2012, c.70, s.1)

 

     1[3.] 4.1     This act shall take effect immediately.