R 3408.Mandatory settlement conference in residential foreclosure actions.
Article 34. Calendar Practice; Trial Preferences · Last amended 2018 · Last verified July 21, 2026
Full Text of CPLR 3408
Plain-English Summary
CPLR 3408(a) applies to residential foreclosures of home loans where the defendant lives on the property being foreclosed. The plaintiff files proof of service within twenty days of service, and the court holds a mandatory conference within sixty days after that proof is filed, or on a later date the parties agree to, to discuss loan modification, short sale, deed in lieu of foreclosure, or any other resolution that might let the defendant keep the home. Reverse-mortgage foreclosures triggered by the last surviving borrower's death are carved out of this requirement, unless a resident spouse or a qualifying successor in interest is involved.
A defendant who shows up without a lawyer is deemed to have moved for permission to proceed as a poor person, and the court decides that application under the standards CPLR 1101 sets. If the court assigns counsel under CPLR 1102(a), it adjourns the conference so counsel can appear before settlement talks begin. Everyone at the conference, plaintiff and defendant alike, must appear in person or by counsel with full authority to resolve the case, and the court explains the case and the defendant's rights where the defendant has no lawyer; appearance by phone or video is available where the court permits it.
Once a request for judicial intervention is filed, the court sends the defendant's information to a local housing counseling agency, and the notice scheduling the conference spells out what documents each side needs to bring: for the plaintiff, payment history, a payoff figure, the note and mortgage, and information about any loss-mitigation review underway or denied; for the defendant, tax returns, income and expense information, benefits, and any earlier loss-mitigation applications.
Both sides owe a good-faith duty to negotiate, judged by the whole picture, compliance with the rule and any court order, compliance with servicing law and loss-mitigation standards, and conduct that avoids needless delay and comes to the table with real authority to settle. A completed settlement requires the plaintiff to discontinue the action and vacate the lis pendens within ninety days, and neither side can charge the other for taking part in the conference. A court, or a referee or judicial hearing officer handling the conference, can find either side failed to negotiate in good faith: a lender's bad faith brings, at minimum, a toll on interest, costs, and fees during the delay, plus possible document production orders, civil penalties up to twenty-five thousand dollars, damages and fees, or other relief; a borrower's bad faith results, at minimum, in removal from the conference calendar, with the court weighing equitable factors like whether the borrower had counsel. A defendant who appears at the conference without having answered gets a presumption of reasonable excuse and thirty days to answer without losing any defenses. Other motions in the case wait until the conference process concludes, except motions about compliance with this rule itself.
Frequently Asked Questions
What is a mandatory settlement conference in a New York foreclosure case?
It's a court-ordered conference under CPLR 3408 for residential home-loan foreclosures where the homeowner lives on the property, aimed at exploring loan modification, short sale, or other resolutions before the case proceeds.
How soon after service must a foreclosure settlement conference be held under CPLR 3408?
Within sixty days after proof of service on the resident defendant is filed with the county clerk, or on a later date the parties agree to.
What does "negotiating in good faith" mean in a New York foreclosure settlement conference?
CPLR 3408(f) measures it by the totality of the circumstances, including compliance with the rule and court orders, compliance with servicing laws and loss-mitigation standards, and avoiding unreasonable delay while coming to the conference with real settlement authority.
What happens if a lender fails to negotiate in good faith under CPLR 3408?
The court must, at minimum, toll interest, costs, and fees during the delay the lender caused, and may also order document production, impose a civil penalty of up to twenty-five thousand dollars, or award damages and attorney's fees.
Can I get a free attorney at a New York foreclosure settlement conference?
A pro se defendant is deemed to have moved to proceed as a poor person, and if the court grants that application and appoints counsel under CPLR 1102(a), the conference is adjourned until counsel appears.
What documents do I need to bring to a foreclosure settlement conference in New York?
Defendants typically bring tax returns, income and expense information, benefits information, and any past loss-mitigation applications, while plaintiffs bring payment history, a payoff figure, the note and mortgage, and information about any loan modification review.
Does CPLR 3408 apply to reverse mortgage foreclosures?
Generally not when the foreclosure was triggered by the last surviving borrower's death, unless a resident spouse or a qualifying successor in interest is involved.
Advisory Committee Notes
The Committee proposes a new CPLR 3012-b to create a procedure whereby the plaintiff lender’s attorney must take certain steps to ascertain that his or her client has standing to maintain the action. Specifically, before commencing such an action, he or she must be assured that the plaintiff he or she represents holds the instrument of indebtedness in the action. To evidence that the plaintiff’s attorney has received such assurance, the complaint he or she files in the action must be accompanied by a certificate, executed by the plaintiff’s attorney, declaring that the attorney has reviewed the merits of the action and that, based upon consultation with authorized representatives of the plaintiff or the attorney’s review of pertinent documents, the attorney has concluded on the basis of that consultation or review that there is reasonable basis for the commencement of the action. Also, the plaintiff’s attorney must attach to the complaint copies of the relevant instruments of indebtedness and any instruments of assignment. This measure would also amend CPLR 3408 to require a plaintiff to file proof of service within 20 days of service. This amendment will supply the necessary ingredient to ensure participation by the parties in the mandatory foreclosure conference with the court.
The Committee believes that, in addition to helping the bar by clarifying in statute the plaintiff’s attorney’s obligation to the court in a residential foreclosure action, this measure is an appropriate public policy response to the crisis in foreclosure cases. The Committee believes that statutory reform is needed to ensure the integrity of the mortgage foreclosure process and eliminate the cases brought without standing or merit. This proposal seeks to prevent completely the problem of “shadow dockets” in the residential foreclosure cases which was unforeseen at the time the recent affirmations rule was promulgated by administrative order. The trial court would have reasonable assurance that all of the instruments of indebtedness underpinning these actions, including any UCC Article 9 document evidencing a security interest in the note, and all instruments of assignment, if any, are in place at the commencement of the action.
Amendment History
Add, L 2008, ch 472, § 3, eff Aug 5, 2008; amd, L 2009, ch 507, § 9, eff Feb 13, 2010; L 2013, ch 306, § 2, eff Aug 30, 2013; L 2016, ch 73, §§ 2, 3 (Part Q), effective December 20, 2016; L 2017, ch 58, § 2 (Part FF), effective April 20, 2017; L 2018, ch 58, § 2 (Part HH), effective December 20, 2016.