(No ) (Approved August 17, 2012) AN ACT

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1 (S. B. 1434) (No ) (Approved August 17, 2012) AN ACT To create an Act to incorporate a mandatory mediation process between mortgagors and mortgagees into foreclosure processes of residential properties in Puerto Rico, which shall be known as the Principal Residence Protection and Mandatory Mediation in Foreclosure Proceedings Act. STATEMENT OF MOTIVES The People of Puerto Rico have been greatly affected by the economic crisis that both the Island and the United States have been undergoing during the last years. The scarcity of economic resources in Puerto Rico has caused many homeowners to lose their homes to foreclosure initiated by the banking or financial institutions holding their property s mortgages. In the United States, it is estimated that over nine million Americans will lose their homes to foreclosure within the next four years. Goldman Sachs Group, one of the world s largest investment firms, estimates that, by 2014, foreclosure cases could exceed thirteen million nationwide, if the United States fails to take measures to solve the economic problems that foreclosure proceedings entail. Puerto Rico s economic crisis has greatly affected our citizenry, who have been deprived of their right to own a home.

2 2 Most mortgage loans include acceleration clauses and other processes that protect any unpaid balance owed to the mortgagee. The citizenry in general is not well aware of the technicalities and complex processes entailed by the legal obligations incurred under a mortgage loan; therefore, it requires further orientation with regard to such processes. In light of the foregoing, the Administration of President Barack Obama created the Making Home Affordable Program (MHAP) to help mortgagors to refinance or modify their loans through two (2) programs: (A) Home Affordable Refinance Program (HARP): Provides refinancing at lower interest rates to homeowners whose loans are guaranteed by Fannie Mae or Freddie Mac, including those who owe more than what their home is actually worth. (B) Home Affordable Modification Program (HAMP): Provides mortgagors with incentives to modify their loans by reducing their loan s interest rate, extending their loan s term, or lowering their mortgage payments up to 35% of their gross income. The United States Congress introduced Senate Bill 2912, entitled Foreclosure Mandatory Act of 2009, in order to require mortgagors of loans with Federal guarantees to submit to a mandatory mediation process, before the mortgagee initiates a foreclosure proceeding. Just as the Federal Government, the Commonwealth Government shall contribute and seek alternatives to reduce the number of foreclosure proceedings and prevent, to the extent possible, our citizens from losing their properties. The truth is that alternatives are available, but the people are not aware of them.

3 3 Nine states of the United States of America have approved this mandatory mediation process to be held before the courts of justice or other mandatory non judicial processes in order to seek alternatives and prevent banks or financial institutions from initiating foreclosure proceedings. For all of the above reasons the Legislative Assembly of Puerto Rico shall enact a law to establish a foreclosure mandatory mediation process to be held in the courts of justice or the appropriate administrative forums before a foreclosure proceeding against a principal residential property in Puerto Rico is initiated by any banking institution. Principal Residential Property shall be understood as the property used as principal home, not as a second home; and, for property tax purposes, it shall be understood as the main residence or that which would qualify for a tax exemption. BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF PUERTO RICO: Section 1.- Short Title.- This Act shall be known as the Principal Residence Protection and Mandatory Mediation in Foreclosure Proceedings Act. Section 2.- Definitions.- The following words or terms, wherever used or referred to in this Act, shall have the meaning stated below unless the context clearly states otherwise: (a) Mediation: An non-adjudicative intervention process whereby a neutral facilitator (mediator) helps or assists the parties to a dispute to achieve a mutually accepted settlement of the issues in dispute. (b) Mandatory Mediation: In the event that a mortgagee may initiate a foreclosure proceeding or a judicial sale of a residential property that serves as principal residence, a mandatory mediation conference shall be held in a Court part or room or at a place selected upon agreement by the parties and the mediator, but shall never be held in the office of the mortgagee or the attorneys or legal

4 4 representatives or advisors thereof, and presided by a mediator selected by the parties in the course of a summary and/or regular foreclosure proceeding. At such meeting, the mortgagee shall notify the mortgagor of all the alternatives available in the market to prevent the foreclosure or judicial sale of a residential property that serves as a principal residence. The purpose or goal is to reach an agreement or modification that may allow mortgagors to establish a repayment plan or other alternative satisfactory to the parties and prevent the loss of their principal residence. (c) Mortgagee: A natural or juridical person or a lending or financial institution or a bank, or a credit union duly authorized under the Laws of Puerto Rico and the United States of America to grant or that grants mortgage loans secured by a principal residence or home. (d) Mortgagor: A natural person who has obtained a loan for consumption, that is, for personal or family purposes secured by a mortgage on a principal residence or home. This definition shall include all natural persons who are liable or may become liable for the obligation whose enforcement is sought in a debt collection or foreclosure process. (e) Principal Residence or Home: That which is used as the main dwelling of the mortgagor or the mortgagor and his/her immediate family, and which would qualify, for property tax purposes, for the principal residence tax exemption. Section 3.- It shall be the Court s duty, in the cases it deems appropriate, within sixty (60) days after the defendant mortgagor s responsive pleading has been filed, and before the pretrial conference is scheduled, under penalty of contempt, to hold a hearing or mandatory mediation conference which shall be presided by a mediator selected by the parties to be held at any court part or room or at the place selected upon agreement by the parties and the mediator, whereby

5 5 all the alternatives available in the market to prevent the foreclosure or judicial sale of a residential property that serves as a principal residence shall be discussed. This shall be a jurisdictional requirement in proceedings held before the Courts of Puerto Rico involving the foreclosure of a residential property that serves as the principal residence of the mortgagor or mortgagors. If this requirement is not met, no judgment may be issued nor the judicial sale of the mortgaged property whose foreclosure is requested may be carried out. If the mortgagor fails to appear at the mediation conference or fails to comply with the agreement reached with the mortgagee as a result of the mediation conference, the financial institution shall act in accordance with the agreement or note executed on the original date of the mortgage. The mortgagor shall only be entitled to a one-time mediation in a civil action filed to begin the foreclosure of a residential property that constitutes the mortgagor s principal residence; provided, that the defendant mortgagor has not been held in contempt or, due to any reason or sanction, the defendant s allegations have been suppressed by the Court. Section 4.- As part of the granting process of a mortgage loan on a principal residence or home, any natural or juridical person or lending or financial institution or any bank or credit union shall be required to provide the mortgagor with information, including, but not limited to: a) information regarding the mandatory mediation process established under this Act, the requirements to participate in the same in the event that a civil action regarding a mortgage foreclosure is initiated; b) the convenience of seeking legal assistance once the mortgagor has been served with a copy of the complaint; c) the convenience of filing a responsive pleading or answer to the complaint once the mortgagor has been served with a copy thereof; d) a warning that if the mortgagor fails to answer the complaint he/she shall be at risk of losing the property; e) a warning that the mortgagor s failure to submit to the mandatory mediation process may result in the loss of his/her property;

6 6 f) the full name and telephone numbers of the persons or divisions that handle and process cases related to loss mitigation in a foreclosure process; and g) any remedies or benefits in effect available to mortgagors that may allow them to benefit from programs or services directed to protecting their principal residences or homes. This obligation shall be strictly met and mortgagees shall certify compliance therewith. Section 5.- The mediation process shall be governed, insofar as it is not incompatible with this Act, by the provisions of Act No. 19 of September 22, 1983, as amended, as well as by any regulations approved thereunder. Section 6.- Expenditures incurred during the mediation process shall be paid by the parties on equal parts, unless otherwise agreed. Section 7.- Before the effective date of this Act, the Office of Courts Administration shall draft and approve regulations or amend any applicable regulations to establish the appropriate process to be followed in the implementation of this Act. Section 8.- Separability.- If any clause, paragraph, article, section, subsection or part of this Act were held to be unconstitutional by a competent court, the holding to such effects shall not affect, impair, or invalidate the remaining provisions thereof. The effect of such holding shall be limited to the clause, paragraph, article, section, subsection or part thereof thus held to be unconstitutional. Section 9.- This Act shall take effect on July 1, 2013.