Practical Guidance on 35B Loan Modification Reviews - chapa.org
Practical Guidance on 35B Loan Modification Reviews Bill Allen, Deputy Director HomeCorps Loan Modification Initiative 2014 Office of Massachusetts Attorney General Martha Coakley Presentation Overview Overview of Chapter 244 s. 35B Certain Mortgages Protections for homeowners
Impact on the Application Process Returning the Notice of Election 35B Application Timeline SPOC Interactions & Document Chasing Evaluating a Servicers 35B Response Acceptance & Counter-Offers Denials Tracking Violations of Chapter 244 s. 35B 2014 Office of Massachusetts Attorney General Martha Coakley An Act Preventing Unlawful and Unnecessary Foreclosures Became law Aug. 3, 2012, with most homeowner protections effective Nov. 1, 2012. Amended M.G.L. c. 244 Foreclosure & Redemption of Mortgages: Added 35B establishing significant protections for homeowners with certain mortgages. Other changes included 35C prohibiting specific conduct by creditors
and 14 regarding foreclosure notices and proof of chain of title. Division of Banks was given authority to create regulations, published at 209 CMR 56.00 2014 Office of Massachusetts Attorney General Martha Coakley Certain Mortgage 35B(a) Owner occupied property where the loan has any one of these features: (1) Introductory rate for 3 years that is 2% lower than fully indexed rate; (2) Interest-only payments for any period of time; (3) Payment option, where any option results in negative amortization; (4) Loan did not require full documentation of income or assets; (5) Prepayment penalty exceeds those allowed by MGL c. 183 56 or federal law (e.g. penalty in excess of 3 months interest, prepayment penalty extends beyond 36 months); (6) At origination, LTV ratio of 90% and DTI > 38%; (7) At origination, one transaction where CLTV ratio exceeded 95%.
If a creditor is unable to determine whether the loan has one or more of these factors it is a certain mortgage. 2014 Office of Massachusetts Attorney General Martha Coakley Not a Certain Mortgage 35B(a) Loans financed by the Massachusetts Housing Finance Agency Loans originated though programs of Massachusetts Housing Partnership Fund A loan on a property that is not owner occupied Vacation Homes Rental Properties A loan which is not made primarily for personal, family or household purposes Business loans 2014 Office of Massachusetts Attorney General Martha Coakley
How do I tell if this applies to my clients? Either the client has to tell you they received a notice of Right to Request a Modified Mortgage Loan (35B Notice) or you need to ask for it! Asking if the borrower has received a 35B Notice should be a standard part of your intake. For some clients the notice may still be on the way, so its worth telling them DONT THROW IT OUT! The 35B Notice contains a Notice of Election which must be completed and returned within 30 days of the creditors notice being sent. 2014 Office of Massachusetts Attorney General Martha Coakley A Typical Foreclosure Timeline in Massachusetts* Borrower Defaults SCRA Notice & 30 Day Response Period 150 Day Right to Cure Period
Publications of Sale (minimum 3 weeks) Referral to Foreclosure F/C Sale 35B Election Period only 30 days *The timing of events leading to a foreclosure may vary significantly. This is particularly true where a borrower has reinstated or modified a loan and then re-defaulted. 2014 Office of Massachusetts Attorney General Martha Coakley Reasonable Steps & Good Faith 35B(b) Creditor required to take reasonable steps and make
a good faith effort to avoid foreclosure. Defined as where creditor has considered: An assessment of borrowers ability to make an affordable monthly payment NPV of receiving payments compared to net recovery following foreclosure Interests of creditor (including investors) considered Creditor is prohibited from publishing a notice of foreclosure sale until these steps are taken 2014 Office of Massachusetts Attorney General Martha Coakley Presumption of Good Faith & Compliance 35B(b)(2)(iv) A creditor is presumed to have acted in good faith and to have complied only if: A loan modification is offered in all circumstances where the [NPV] of the modified mortgage loan exceeds the anticipated net recovery at foreclosure
So finding an NPV positive modification may be the key to getting a modification under Ch. 244 s. 35B. 2014 Office of Massachusetts Attorney General Martha Coakley Borrower must return the Notice of Election with a complete RMA or all documents required by 209 CMR 56.06(2) within 30 calendar days from when the notice was sent Creditor 30 35B Notice is sent Send a missing items letter within 5 business days of receipt of the Notice of election
60 If approved: Borrower may submit a counter-offer within 30 calendar days 90 120 Issue an assessment within 30 calendar days from receipt of the Notice of Election, including: verified financials, NPV analysis, and either a modification offer or a denial 150 Process should be complete by day 150
Borrower 35B Loan Modification Timeline 35B(c) Tips for working with the 35B timeline Dont wait to submit the Notice of Election if youre missing a supporting documentthe 30 day deadline is essential The initial application may often be completed in a rushtry to anticipate what the creditor will ask for in the 5-day MIL If you return the Notice of Election and RMA through a provided FedEx envelope make sure you have the tracking number, if theres no tracking
number send it back via certified mailthe date received by the creditor determines the 30 day deadline for the assessment As soon as a SPOC is assigned request confirmation of receipt, confirm the homeowners 150 day right to cure has been preserved, and if the SPOC is not familiar with the accelerated 35B timelinemake them aware of it! 2014 Office of Massachusetts Attorney General Martha Coakley Other Issues you may encounter What if an application is already in process when the borrower receives the 35B notice? Youll need to consider the borrower's situation on a case-by-case basis, and let the borrower make the decision of whether or not to submit a new application. They should consider that if the Notice of Election is not returned with a statement of financials or RMA, the right to modify and the 150 day right to cure will be lost.
What if the 35B Notice is dated many days prior to the homeowner receiving it? Doesnt that cut unfairly into the borrowers 30 day time to complete the application and return the Notice of Election? Yes it does! Bring the issue to the attention of servicer and the Attorney Generals Office. Many servicers use document vendors that have been known to delay the release of their letters. This is an issue we are aware of and would like to be apprised of any examples you may encounter. Also, we dont recommend relying on a verbal extension of the deadlineget it in writing or get the application in within 30 days! 2014 Office of Massachusetts Attorney General Martha Coakley Tracking Violations of Ch. 244 s. 35B Did the Creditor 1. Send the 5 Day Letter? 2. Issue the assessment within 30 days of receiving the Notice of Election? 3. Offer an NPV positive modification where one was available or proposed via a counter-offer?
4. Investigate any alleged errors in the Creditors assessment? 5. Provide Access to the Creditors Represenative? 6. Respond to a counter offer within 30 days? 7. Complete the 35B review process before publishing a notice of sale? 2014 Office of Massachusetts Attorney General Martha Coakley
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