Referee's Oath and Report of Amount Due
(Foreclosure of Real Property) (NY)

Summary

This template is a referee's oath and report of amount due and may be used in a foreclosure of real property in New York. This template contains practical guidance and drafting notes. N.Y. Real Prop. Acts. Law § 1321(1) authorizes appointment of a referee to compute the sum due to plaintiff in a foreclosure action and directs the referee (or the court in the rare instances where the power is retained) to also examine and report whether the mortgaged premises can be sold in parcels and, if the whole sum secured by the mortgage has not become due, to report such amount as is to become due. This authority to report as to the sum yet to become due is relevant in the instance of a partial foreclosure. A referee is appointed to compute and to report to the court, with the report to be confirmed by the court and then to become a part of the judgment. The referee's authority is limited to computation of the monies owed to the plaintiff—and there is no power to go beyond that and determine whether the mortgage had been paid—particularly when a defense of payment has been stricken upon a motion for summary judgment. This template is intended as a general drafting aid and will require modification according to the particular circumstances and the intentions of the parties. For a full listing of key content covering foreclosures in New York, see Foreclosure Resource Kit (NY). For additional information about foreclosure of real property in New York, see Commercial Mortgage Foreclosure (NY) and Residential Foreclosure Alternatives (NY); see also Bergman on New York Mortgage Foreclosures §§ 20.01 through 20.09.