SENATE, No. 1832

STATE OF NEW JERSEY

217th LEGISLATURE

 

INTRODUCED MARCH 7, 2016

 


 

Sponsored by:

Senator  RONALD L. RICE

District 28 (Essex)

Senator  BRIAN P. STACK

District 33 (Hudson)

 

 

 

 

SYNOPSIS

     Concerns expedited process for foreclosing vacant and abandoned residential properties in uncontested actions.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning foreclosure of residential properties, amending P.L.2012, c.70 and supplementing P.L.1995, c.244 (C.2A:50-53 et seq.).

 

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

 

     1.    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.2014, c.35 (C.40:48-2.12s).  Where a notice of violation has not been issued pursuant to subsection b. of section 1 of P.L.2014, c.35 (C.40:48-2.12s), 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 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)  certification from the board of a planned real estate development in which the residential property is located, as defined under section 1 of P.L.1990, c.55 (C.2A:42-103), stating with specificity that the property has been observed to be abandoned; or

     (16)  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.  The summary action permitted under this section shall only be available in uncontested actions, as defined pursuant to R.4:64-1(c) of the Rules Governing the Courts of the State of New Jersey.

     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.  Any such defense or objection shall be accompanied by an affidavit stating that the defense is not made solely for the purpose of delaying the relief requested pursuant to the summary action.  The defense or objection shall be presented within 30 days of the filing of the service of the application to proceed summarily for foreclosure of "vacant and abandoned" property pursuant to this section.  Any defense or objection that is presented without the affidavit, or that is not presented within the 30 day time period, shall not be considered by the court, except for good cause shown.

     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.

     k.    At the time of filing of the application to proceed summarily for foreclosure of "vacant and abandoned" property pursuant to this section, the Office of the Superior Court Clerk shall require a fee of $1,000 from the plaintiff for the costs associated with the use of the summary action for each vacant and abandoned property permitted under this section, which shall be retained by the Administrative Office of the Courts in a non-lapsing account for use by the Office of the Superior Court Clerk.

(cf: P.L.2014, c.35, s.3)

 

     2.    (New section)  a.  When a lender is entitled to pursue a summary action pursuant to subsection c. of section 1 of P.L.2012, c.70 (C.2A:50-73), but fails to file an application to proceed in a summary manner, and the mortgage lien of the lender is superior to all or part of the lien of a planned real estate development, as defined under section 1 of P.L.1990, c.55 (C.2A:42-103), then the board of the planned real estate development may file a motion to compel expedited judgment and sale, or in the alternative, payment of association fees outstanding since the foreclosure action was filed, along with ongoing fees, until occupied by a new resident. The motion shall be accompanied by an affidavit from a person having personal knowledge of the contents and shall contain the specific facts to establish that the action is uncontested.

     b.    If the motion and affidavit filed pursuant to subsection a. of this section are found to be in compliance with the provisions of that subsection, have been served on the lender, debtor and other appropriate parties in accordance with the Rules Governing the Courts of the State of New Jersey, and are otherwise satisfactory, the Superior Court shall:

     (1)   enter an order compelling the lender to file an application to proceed in a summary manner in accordance with subsection c. of section 1 of P.L.2012, c.70 (C.2A:50-73) within 30 days or, if the lender declines to file such a motion, to pay to the association the assessments for periodic payments due for regular and usual operating and common area expenses pursuant to the association’s annual budget coming due on or after the thirty-first day following entry of the order to pay; or

     (2)   approve an application for an Order Appointing a Fiscal Agent pursuant to section 3 of P.L.     , c.    (C.      ) (pending before the Legislature as this bill) and in accordance with the governing documents of the planned real estate development.

 

     3.    (New section)  a.  In accordance with N.J.S.2A:17-66 and R.4:53-1 of the Rules Governing the Courts of the State of New Jersey, and in addition to the powers granted to condominium associations pursuant to section 21 of the “Condominium Act,” P.L.1969, c.257 (C.46:8B-21), the board of a planned real estate development, as defined under section 1 of P.L.1990, c.55 (C.2A:42-103), may apply to the Superior Court of New Jersey for an Order Appointing a Fiscal Agent over an abandoned or unoccupied unit.

     b.    The fiscal agent shall be authorized to:

     (1)   manage the unit;

     (2)   license the use of the unit;

     (3)   keep the unit insured against loss, damage by fire, or public liability; and

     (4)   repair and otherwise do anything necessary for the care and management of the unit.

     c.     The fiscal agent shall be authorized to:

     (1)   demand, collect and receive from any licensee of the unit or any portion of the unit, or any person liable for the unit, any payment due from any licensee of the unit;

     (2)   institute all legal proceedings necessary for the protection of the unit, or to recover possession of the unit or any part of the unit, and to institute actions for the collection of payments due, and to institute summary proceedings for the removal of any licensee; and

     (3)   retain legal counsel to render legal advice and to provide legal services as may be necessary in the performance of its duties.

     d.    The anti-eviction provisions of P.L.1974, c.49 (C.2A:18-61.1 et seq.) shall not apply to any licensee of a unit that consists of one single dwelling. 

     e.     Any licensee placed by the fiscal agent in the unit or any other person that may be in possession of the unit shall pay to the fiscal agent any payment due pursuant to any license agreement issued by the fiscal agent.

     f.     Neither the title owner of a unit, nor its agent, employee, heir or devisee shall be entitled to receive or collect any payment due pursuant to any license agreement issued by the fiscal agent.

     g.    Upon receipt, the fiscal agent shall deposit payments in a banking institution in its name as the fiscal agent and shall pay the association the following charges:

     (1)   10 percent of the payment due pursuant to any license agreement issued by the fiscal agent to reimburse the association for the purposes of managing receivership;

     (2)   current maintenance fees on a monthly basis; and

     (3)   any prior past due maintenance fees, assessments, late charges, interest and reasonable counsel fees and cost, until paid in full.

     h.    Upon application of the rent or any other payments as set forth in subsection g. of this section, including, but not limited to, reimbursement to the receiver of any and all costs incurred to rehabilitate the unit to make it habitable, and once the rent or other payments satisfy in full the underlying debt due to the association for delinquent fees and charges assessed to the unit, further monthly payments shall be applied on a pro rata basis to:

     (1)   the association to satisfy monthly maintenance fees or assessments as may be applicable; and

     (2)   monthly mortgage debt payment amortization, except that the payment shall not include any acceleration of principal or interest due to a default under the terms of the loan.

     i.     As used in this section:

     “Fiscal agent” means a receiver, trustee, or other fiscal agent authorized pursuant to this section to manage a unit.

     “Unit” means a unit, home, or lot as defined in the applicable governing documents of a planned real estate development.

 

     4.    This act shall take effect on the 90th day next following enactment.

 

 

STATEMENT

 

     This bill provides an expedited process for residential mortgage lenders to foreclose vacant and abandoned residential properties and enhances the remedies available to common interest communities when lenders delay the foreclosure of vacant and abandoned properties.

     The bill provides that a residential mortgage lender may file a motion to proceed summarily to foreclose vacant and abandoned property if the foreclosure action is uncontested as defined pursuant to R.4:64-1(c) of the Rules Governing the Courts of the State of New Jersey.

     The bill requires any defense or objection to an application to proceed summarily to foreclose vacant and abandoned property to be accompanied by an affidavit stating that the defense is not made solely for the purpose of delaying the relief requested pursuant to the summary action.  The defense or objection must be presented within 30 days of the filing of the service of the application.  Any defense or objection that is presented without the affidavit, or that is not presented within the 30 day time period, shall not be considered by the court, except for good cause shown.

     The bill requires the Superior Court to order payment by a plaintiff of $1,000 as a fee for costs associated with the use of the summary process for vacant and abandoned properties, which shall be retained by the Administrative Office of the Courts in a non-lapsing account for use by the Office of the Superior Court Clerk.

     Under current law, a residential mortgage lender may commence a summary action to foreclose a mortgage debt in Superior Court if the court finds that at least two out of 15 conditions exist that indicate the property is abandoned.  This bill adds to this list a certification from the board of a planned real estate development stating with specificity that the property has been observed to be abandoned.

     This bill also provides that, when a lender is entitled to proceed through the foreclosure process in a summary manner, but has not done so, the board of a planned real estate development may file a motion to compel expedited judgment and sale, or in the alternative, payment of association fees.  The bill requires the motion to be accompanied by an affidavit from a person having personal knowledge of the contents and shall contain the facts necessary to establish that the action is uncontested.  The Superior Court shall subsequently enter an order compelling the lender to file an application to proceed in a summary manner within 30 days or, where the lender declines to file that motion, to pay to the planned real estate development the assessments for periodic payments due for regular and usual operating and common area expenses coming due on or after the thirty-first day following entry of the order to pay.

     Alternatively, the court may approve an application for an Order Appointing a Fiscal Agent.  The bill allows the board of a common interest ownership association to apply to the Superior Court for an Order Appointing a Fiscal Agent over an abandoned or unoccupied unit.  The fiscal agent will be responsible for maintaining the unit and paying, through a licensee or otherwise, maintenance fees and assessments for benefits such as utilities, common element expenses, amortization of common elements, administrative costs and maintenance of the physical structure in order to protect, preserve and maintain the unit for the benefit of the planned real estate development, the unit owners in the common interest community and any others with an interest in the unit, including, without limitation, mortgage holders.  The fiscal agent is also intended to prevent the impairment of the utility of the unit for the association, the other unit owners in the planned real estate development, and others with an interest in the unit such as a mortgage holder.