Compliance & Foreclosure

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1 Compliance & Foreclosure June 19th, 2015 Hilton Hotel, Dedham, MA Erika J. Hoover, Esq. Compliance Counsel

2 Life of a foreclosure default to post sale Pre-foreclosure compliance issues Obsolete mortgages Lost Note Affidavits MA and CFPB requirements within the context of default and foreclosure process on Foreclosure, Communication, Loss Mitigation and Prohibition against Dual Tracking MA requirements (since 2012) 35A, 35B, 35C, Eaton CFPB requirements (since January, 2014) Post referral solicitation communication Dual tracking Loss mitigation communications Recent Cases

3 MGL C et seq. MGL C A, 35B, 35C 209 CMR 56 & 18.21

4 Default occurs on the mortgage 150-day right to cure & (concurrent) 30-day notice of default under the terms of the mortgage Referral to foreclosure following failure to cure during the statutory period Recordation of all assignments of mortgage, if applicable, prior to initiating foreclosure. MA SCRA complaint filing constitutes the initiation of foreclosure Entry of judgment in SCRA action (6-8 months from date of referral) Recordation of 35B & 35C affidavits Receipt of 209 CMR certification (applicable to GSE serviced loans) Sending notice of sale letters (30-days prior to sale) Sale occurs Recordation of foreclosure deed and Eaton affidavit

5 FNMA estimated timeline for foreclosure from default to sale is 440 Days (14.7 months) with no delays 5 month pre-foreclosure right to cure & (concurrent) 30-day notice of default under the terms of the mortgage 1-2 months for completion of title search and review, recordation of assignments prior to MA SCRA complaint SCRA filing constitutes the initiation of foreclosure in the GSE timeline calculation 6-8 months to obtain entry of SCRA Judgment 1-2 months to obtain and record 35B & 35C affidavits Concurrent receipt of 209 CMR certification (applicable to GSE serviced loans) 30-days prior to sale: sending notice of sale letters 1-2 months to obtain and record foreclosure deed and Eaton affidavit TOTAL: months (on average without delays)

6 MGL C & 34

7 Statute of Limitations Period 5 years from the stated Maturity Date in the mortgage; OR 35 years from the date of recording, if no maturity date stated Limitations period begins to run: At the Maturity Date; or The date of Recording Upon expiration, the mortgage shall be considered discharged for all purposes

8 What must be completed within the Limitations period? File First legal, SCRA Complaint; and Conduct Sale; and Make Entry; and, possibly Eviction / possession taken **; OR **There is no current case law or interpretation on the meaning of possession taken. Therefore until clarification is received, our office recommends a conservative interpretation that it could include a post-foreclosure eviction action, or recording of the foreclosure Deed Recordation of an Extension of Mortgage Affidavit

9 Recording an extension of the mortgage Extends the terms for an additional 5 years from the recording date of the extension. The Affidavit of Extension must be recorded prior to expiration of the original term of the mortgage. There is no limit to the number of extensions that can be recorded. Failure to extend under M.G.L. Ch. 260, 34, prior to expiration of the mortgage results in the mortgage discharged for all purposes.

10 Effect of Bankruptcy on Expiration There is no tolling of the statute for any reason, but: IF a mortgage expires under 33, during the pendency of a Bankruptcy Automatic Stay: An extension of mortgage can be recorded within 30- days following the release from stay.

11 Required information in Extension Affidavit: Executed by the holder of the mortgage Describes the mortgage sufficiently to identify the record thereof Names one or more of the person or persons then appearing of record to own the real estate then subject to the mortgage States that the mortgage remains unsatisfied States if the mortgage secures a promissory note or sum of money States the amount believed to remain unpaid, and Must be RECORDED prior to the mortgage expiration

12 An Assignment of Mortgage A loan modification agreement Recorded or unrecorded Loss Mitigation workout Proof of unpaid debt, when not in the specific recorded form set out by MGL ch. 260, 34. There has been no case law specifically addressing the affect of a loan modification. However, it is possible that IF the loan modification changes the maturity date of the mortgage itself; and The loan modification agreement is recorded, A court May find that it is sufficient to extend the mortgage Until clarified, best practice would be to have the loan modification AND an Affidavit for Extension of the Mortgage recorded

13 Loans with short terms: 7, 10 and 15 year terms Short term loans are not as common, which is why they can be overlooked There is an inaccurate presumption that all residential mortgages are for 30 years Expiration of mortgage while on hold for loss mitigation, or other reason not due to Bankruptcy

14 MGL c. 106, UCC 3-309

15 Massachusetts version of UCC The MA version of UCC (MGL c. 106, 3-309), the section governing lost promissory notes, states: A person not in possession of an instrument is entitled to enforce the instrument if the person was in possession of the instrument and entitled to enforce it when loss of possession occurred

16 Current national version of UCC The national version of the UCC was amended in 2002 to allow a subsequent purchaser of the debt and lost note affidavit to enforce the note, not all states have yet adopted it, including Massachusetts. It reads as follows: (a) A person not in possession of an instrument is entitled to enforce the instrument if: (1) the person seeking to enforce the instrument (A) was entitled to enforce it the instrument when loss of possession occurred, or (B) has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred

17 MGL C A, 35B, 35C 209 CMR 56 & 18.21

18 MGL C A 150-day right to Cure (sent within 15-days of default) pre-foreclosure Available for default once every three years (unless not cured) Required on any default for failure to make a payment (including taxes/insurance) Reverse mortgages typically exempt, unless default is the result of failure to pay taxes or insurance. MGL C B Notice of Right to Loan Modification Letter(sent simultaneously with 34A letter, anytime 35A is required)

19 209 CMR Mortgagee Affidavit filed with SCRA Complaint MGL C B Affidavit of compliance with provisions of 35B (recorded prior to notice of sale) MGL C C Affidavit of Lender pertaining to the holder of the Note for purposes of foreclosure (recorded prior to notice of sale) 209 CMR Certification on holder of note and mortgagee, sent with notice of sale letter. Eaton affidavit Affidavit of Lender pertaining to the holder of the Note for purposes of foreclosure (recorded with foreclosure deed ) must be the same as the 35C affidavit

20 Regulation X (12 CFR 1024)

21 Pre-Foreclosure 120 day Rule (MA 150-days) Dual Tracking Prohibition During Foreclosure Post Referral Solicitation Letter Dual Tracking Prohibitions Error Resolution or Information Request Defenses or Counterclaims Post-Foreclosure Error Resolution or Information Request Litigation & Sale Challenges

22 Dual Tracking Prohibition [12 CFR (f)] If complete loss mitigation application before 120 th day of delinquency, servicer cannot make first foreclosure notice or filing until: notice to borrower that ineligible and appeal period expires borrower rejects all offered loss mitigation borrower fails to perform under a loss mitigation agreement

23 Dual Tracking Prohibition [12 CFR (g)] If complete loss mitigation application more than 37 days before sale, servicer cannot proceed until: notice to borrower that ineligible and any appeal period expires or is not used borrower rejects all offered loss mitigation borrower fails to perform under a loss mitigation agreement

24 Dual Tracking Prohibition [12 CFR (g)] If complete loss mitigation application after filing first legal, but prior to entry of SCRA Judgment, servicer cannot proceed until: notice to borrower that ineligible and any appeal period expires or is not used borrower rejects all offered loss mitigation borrower fails to perform under a loss mitigation agreement Lender must promptly notify foreclosure firm to prevent entry of judgment. (In MA, this is not clear, since the judgment entered is not one authorizing foreclosure, but strictly for military status) best practice is to delay entry if possible.

25 Error Resolution Notice Response Provide written acknowledgement to borrower within 5 days [12 CFR (d)] Provide substantive response within 30 days (or additional 15-day extension period) [12 CFR (e)] If payoff balance error, respond in 7 days if 120-day Rule or Dual Tracking error, must respond by date of foreclosure sale or 30 days, whichever is earlier

26 Last-Minute Error Notice Re Foreclosure Issues If servicer receives notice 7 or fewer days before sale: [12 CFR (f)] NO written acknowledgement to borrower required Servicer must make good faith attempt to respond to the borrower, either orally or in writing, to correct or state determination of no error

27 Defenses and Counterclaims to Foreclosure Private right of action available for : violation of Early Intervention and SPOC procedures violation of loss mitigation evaluation processes and dual tracking prohibitions But no specific injunctive relief provisions

28 State vs. Federal Congress/CFPB did not intend to preempt Servicing Rules are intended to be a floor States can and did enact statutes that are more restrictive to servicers and more protective to borrowers relating to loss mitigation and foreclosure requirements. Most protective rule to borrower applies MA 150-day right to cure relative to MGL C A is more protective. MA rule that changes to 90-day right to cure (set to become effective January 1, 2016 is less protective, and thus the 120-day rule under CFPB will apply)

29 Best Practices When loss mitigation discussions are ongoing, notify the foreclosure law firm When a completed package is received, place foreclosure on hold, regardless of when complete loss mitigation package is received prior to the sale Keep your foreclosure attorney s office aware of all loss mitigation communication going on during the foreclosure. Failure to notify the attorney could lead to inadvertent invalidation of an SCRA judgment (6-8 month delay from when the attorney is notified of the dual tacking, if borrower is ultimately denied for a workout)

30

31 Concurrence Justice Gants - Methods to raise 35A issue: Pre-Sale equitable action: file an equitable action in Superior Court seeking to enjoin the foreclosure. (Slip Op. p. 7) Post-Sale counter-claim: counter-claim in equity in which borrower must prove that the violation of 35A rendered the foreclosure so fundamentally unfair that she is entitled to affirmative equitable relief, specifically the setting aside of the foreclosure sale [emphasis added] (Slip Op. p. 7)

32 Plaintiffs, former owners and borrowers file suit against the third party foreclosure sale buyer and foreclosing mortgagee, requesting injunction to halt eviction action and requesting a declaratory judgment that the foreclosure was improper. Plaintiffs Claims: Par. 22 pre-acceleration letter invalid it provided notice of the right to assert in any lawsuit for foreclosure. any defense, as opposed to Right to bring a court action to assert any defense as provided in Par. 22 of the mortgage. Par. 22 is part of mortgage which must be strictly complied with per MGL c. 183, sec. 21 Also raised Ibanez (unrecorded, undelivered asgt.) and Eaton claims (questioned note holder), though first pub date (6/16/12) was after Eaton decision (6/26/12).

33 Defendants Arguments Par. 22 NOT part of Power of Sale thus, same analysis as Schumacher Eaton cannot apply first pub pre-dates Eaton decision Ibanez does not apply because off record assignment not effective if neither delivered nor recorded SJC has requested amicus briefs on the issue Argument held, waiting for court ruling

34 Suit brought in US District Court by several local banks challenging the enactment of two ordinances by City of Springfield Ch Payment of $10,000 bond and duties to maintain property within 15 days of commencement of foreclosure process Ch Mandatory foreclosure mediation City s Motion for Summary Judgment allowed by Judge Ponsor on July 3, 2012

35 Two questions certified by US Court of Appeals to SJC in November 2013: Are Springfield's municipal ordinances Chapter 285, Article II, "Vacant or Foreclosing Residential Property" (the Foreclosure Ordinance) or Chapter 182, Article I, "Mediation of Foreclosures of Owner-Occupied Residential Properties (the Mediation Ordinance) preempted, in part or in whole, by those state laws and regulations identified by the plaintiffs? Fcl is already regulated statewide by statute and regulation Home Rule Amendment allows local regulation of local matters Does the Foreclosure Ordinance impose an unlawful tax in violation of the Constitution of the Commonwealth of Massachusetts? Bond charges do not necessarily benefit the payer. Funds can be used for other properties/purposes.

36 Held: Local Foreclosure Ordinance & Mediation program unlawful The Springfield Mediation Ordinance is preempted by Massachusetts foreclosure law on the basis that Mortgage foreclosure regulation traditionally has been a matter of State, not local, concern. Id. at page 12. The Court concluded that the mediation Ordinance alters State law and therefore frustrates the purpose of the foreclosure statute. Id. The Foreclosure Ordinance is inconsistent with the Massachusetts Oil and Hazardous Material Release Prevention Act because the Ordinance forcibly exposes mortgagees to liability under the Act, which defeats the safe harbor for secured lenders provided by state law. The Court also held that the Foreclosure Ordinance also conflicts with the State Sanitary Code because the Ordinance places a heavier burden on an owner than does the code to ensure enforcement of essentially the same mandate. Held: The Foreclosure Ordinance does NOT impose an unlawful tax in violation of the Constitution of the Commonwealth of Massachusetts?

37 June 19, 2015

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