R 3408.Mandatory settlement conference in residential foreclosure actions.
Article 34. Calendar Practice; Trial Preferences · Last amended 2018 · Last verified July 21, 2026
In one sentenceCPLR 3408 requires courts to hold a mandatory settlement conference in residential home-loan foreclosures where the homeowner still lives on the property, forcing lender and borrower to negotiate loss-mitigation options in good faith before the case moves forward.
(a)1. Except as provided in paragraph two of this subdivision, in any residential foreclosure action involving a home loan as such term is defined in section thirteen hundred four of the real property actions and proceedings law, in which the defendant is a resident of the property subject to foreclosure, plaintiff shall file proof of service within twenty days of such service, however service is made, and the court shall hold a mandatory conference within sixty days after the date when proof of service upon such defendant is filed with the county clerk, or on such adjourned date as has been agreed to by the parties, for the purpose of holding settlement discussions pertaining to the relative rights and obligations of the parties under the mortgage loan documents, including, but not limited to: (i) determining whether the parties can reach a mutually agreeable resolution to help the defendant avoid losing his or her home, and evaluating the potential for a resolution in which payment schedules or amounts may be modified or other workout options may be agreed to, including, but not limited to, a loan modification, short sale, deed in lieu of foreclosure, or any other loss mitigation option; or (ii) whatever other purposes the court deems appropriate.
2.
(i)Paragraph one of this subdivision shall not apply to a home loan secured by a reverse mortgage where the default was triggered by the death of the last surviving borrower unless:
(A)the last surviving borrower’s spouse, if any, is a resident of the property subject to foreclosure; or
(B)the last surviving borrower’s successor in interest, who, by bequest or through intestacy, owns, or has a claim to the ownership of the property subject to foreclosure, and who was a resident of such property at the time of the death of such last surviving borrower.
(ii)The superintendent of financial services may promulgate such rules and regulations as he or she shall deem necessary to implement the provisions of this paragraph.
(b)At the initial conference held pursuant to this section, any defendant currently appearing pro se, shall be deemed to have made a motion to proceed as a poor person under section eleven hundred one of this chapter. The court shall determine whether such permission shall be granted pursuant to standards set forth in section eleven hundred one of this chapter. If the court appoints defendant counsel pursuant to subdivision (a) of section eleven hundred two of this chapter, it shall adjourn the conference to a date certain for appearance of counsel and settlement discussions pursuant to subdivision (a) of this section, and otherwise shall proceed with the conference.
(c)At any conference held pursuant to this section, the plaintiff and the defendant shall appear in person or by counsel, and each party’s representative at the conference shall be fully authorized to dispose of the case. If the defendant is appearing pro se, the court shall advise the defendant of the nature of the action and his or her rights and responsibilities as a defendant. Where appropriate, the court may permit a representative of the plaintiff or the defendant to attend the settlement conference telephonically or by video-conference.
(d)Upon the filing of a request for judicial intervention in any action pursuant to this section, the court shall send either a copy of such request or the defendant’s name, address and telephone number (if available) to a housing counseling agency or agencies on a list designated by the division of housing and community renewal for the judicial district in which the defendant resides. Such information shall be used by the designated housing counseling agency or agencies exclusively for the purpose of making the homeowner aware of housing counseling and foreclosure prevention services and options available to them.
(e)The court shall promptly send a notice to parties advising them of the time and place of the settlement conference, the purpose of the conference and the requirements of this section. The notice shall be in a form prescribed by the office of court administration, or, at the discretion of the office of court administration, the administrative judge of the judicial district in which the action is pending, and shall advise the parties of the documents that they shall bring to the conference.
1. For the plaintiff, such documents shall include, but are not limited to, (i) the payment history; (ii) an itemization of the amounts needed to cure and pay off the loan; (iii) the mortgage and note or copies of the same; (iv) standard application forms and a description of loss mitigation options, if any, which may be available to the defendant; and (v) any other documentation required by the presiding judge. If the plaintiff is not the owner of the mortgage and note, the plaintiff shall provide the name, address and telephone number of the legal owner of the mortgage and note. For cases in which the lender or its servicing agent has evaluated or is evaluating eligibility for home loan modification programs or other loss mitigation options, in addition to the documents listed above, the plaintiff shall bring a summary of the status of the lender’s or servicing agent’s evaluation for such modifications or other loss mitigation options, including, where applicable, a list of outstanding items required for the borrower to complete any modification application, an expected date of completion of the lender’s or servicer agent’s evaluation, and, if the modification(s) was denied, a denial letter or any other document explaining the reason(s) for denial and the data input fields and values used in the net present value evaluation. If the modification was denied on the basis of an investor restriction, the plaintiff shall bring the documentary evidence which provides the basis for the denial, such as a pooling and servicing agreement.
2. For the defendant, such documents shall include, but are not limited to, if applicable, information on current income tax returns, expenses, property taxes and previously submitted applications for loss mitigation; benefits information; rental agreements or proof of rental income; and any other documentation relevant to the proceeding required by the presiding judge.
(f)Both the plaintiff and defendant shall negotiate in good faith to reach a mutually agreeable resolution, including but not limited to a loan modification, short sale, deed in lieu of foreclosure, or any other loss mitigation, if possible. Compliance with the obligation to negotiate in good faith pursuant to this section shall be measured by the totality of the circumstances, including but not limited to the following factors:
1. Compliance with the requirements of this rule and applicable court rules, court orders, and directives by the court or its designee pertaining to the settlement conference process;
2. Compliance with applicable mortgage servicing laws, rules, regulations, investor directives, and loss mitigation standards or options concerning loan modifications, short sales, and deeds in lieu of foreclosure; and 3. Conduct consistent with efforts to reach a mutually agreeable resolution, including but not limited to, avoiding unreasonable delay, appearing at the settlement conference with authority to fully dispose of the case, avoiding prosecution of foreclosure proceedings while loss mitigation applications are pending, and providing accurate information to the court and parties.
Neither of the parties’ failure to make the offer or accept the offer made by the other party is sufficient to establish a failure to negotiate in good faith.
(g)The plaintiff must file a notice of discontinuance and vacatur of the lis pendens within ninety days after any settlement agreement or loan modification is fully executed.
(h)A party to a foreclosure action may not charge, impose, or otherwise require payment from the other party for any cost, including but not limited to attorneys’ fees, for appearance at or participation in the settlement conference.
(i)The court may determine whether either party fails to comply with the duty to negotiate in good faith pursuant to subdivision (f) of this section, and order remedies pursuant to subdivisions (j) and (k) of this section, either on motion of any party or sua sponte on notice to the parties, in accordance with such procedures as may be established by the court or the office of court administration. A referee, judicial hearing officer, or other staff designated by the court to oversee the settlement conference process may hear and report findings of fact and conclusions of law, and may make reports and recommendations for relief to the court concerning any party’s failure to negotiate in good faith pursuant to subdivision (f) of this section.
(j)Upon a finding by the court that the plaintiff failed to negotiate in good faith pursuant to subdivision (f) of this section, and order remedies pursuant to this subdivision and subdivision (k) of this section the court shall, at a minimum, toll the accumulation and collection of interest, costs, and fees during any undue delay caused by the plaintiff, and where appropriate, the court may also impose one or more of the following:
1. Compel production of any documents requested by the court pursuant to subdivision (e) of this section or the court’s designee during the settlement conference;
2. Impose a civil penalty payable to the state that is sufficient to deter repetition of the conduct and in an amount not to exceed twenty-five thousand dollars;
3. The court may award actual damages, fees, including attorney fees and expenses to the defendant as a result of plaintiff’s failure to negotiate in good faith; or 4. Award any other relief that the court deems just and proper.
(k)Upon a finding by the court that the defendant failed to negotiate in good faith pursuant to subdivision (f) of this section, the court shall, at a minimum, remove the case from the conference calendar. In considering such a finding, the court shall take into account equitable factors including, but not limited to, whether the defendant was represented by counsel.
(l)At the first settlement conference held pursuant to this section, if the defendant has not filed an answer or made a pre-answer motion to dismiss, the court shall:
1. advise the defendant of the requirement to answer the complaint;
2. explain what is required to answer a complaint in court;
3. advise that if an answer is not interposed the ability to contest the foreclosure action and assert defenses may be lost; and 4. provide information about available resources for foreclosure prevention assistance.
At the first conference held pursuant to this section, the court shall also provide the defendant with a copy of the Consumer Bill of Rights provided for in section thirteen hundred three of the real property actions and proceedings law.
(m)A defendant who appears at the settlement conference but who failed to file a timely answer, pursuant to rule 320 of the civil practice law and rules, shall be presumed to have a reasonable excuse for the default and shall be permitted to serve and file an answer, without any substantive defenses deemed to have been waived within thirty days of initial appearance at the settlement conference. The default shall be deemed vacated upon service and filing of an answer.
(n)Any motions submitted by the plaintiff or defendant shall be held in abeyance while the settlement conference process is ongoing, except for motions concerning compliance with this rule and its implementing rules.
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.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
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