| by Adam Gross, Partner Gross & Polowy, LLC |
| The Hardship Declaration requirements of the New York COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020, scheduled to expire on August 31, 2021, were extended by the legislature until at least January 15, 2022. Click HERE for a complete copy of the legislation. Additional language was added to the foreclosure Hardship Declaration as of September 2, 2021. Hardship Declarations included with the 90 day notice sent in after September 2, 2021 must include the additional language. Click HERE for copy of the new Hardship Declaration for foreclosure and HERE for a copy of the Hardship Declaration for Eviction. The additional language is highlighted in yellow. The legislation adds three new provisions that allow a Plaintiff to challenge the claimed hardship. These additions were added to meet the requirements of an August 12, 2021 U.S. Supreme Court Ruling that found that the eviction Hardship Declaration “scheme violates the court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case’ consistent with the Due Process Clause.” The Hardship Declaration includes notice that the Plaintiff can challenge the declaration of hardship. New foreclosures and residential evictions can be filed even if a Hardship Declaration was returned by the mortgagor if an affidavit is provided that states that “… the foreclosing party believes in good faith that the hardship certified in the hardship declaration does not exist.” In pending cases the Plaintiff can challenge the Hardship Declaration by making a motion asking the court to hold a hearing to determine whether the defendant’s hardship claim is invalid. The Plaintiff must have a good faith belief that the defendant has not experienced a hardship to make this motion. The remainder of the foreclosure related requirements of the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 were not changed. Click HERE to read the NY Senate Press Release. More information on the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 and the foreign language translations of the Hardship Declaration, when updated by the Office of Court Administration, are located on the NY Court’s website at: https://www.nycourts.gov/covid-eefpa.shtml https://www.nycourts.gov/eefpa/ |