Bill H.4087 187th (2011 - 2012)

Amendment # 1

Mr. Madden of Nantucket moves to amend House Bill 4087 by adding a definition to subsection 2 after Line 83 of the term “Foreclosure Process” defined as follows: “Foreclosure Process”, the commencement of the foreclosure process in Massachusetts which shall be deemed to commence with the sending to a borrower a default/right to cure notice in strict compliance with the requirements of section 35A of this Chapter and/or any other default notice requirement under a mortgage.”

Amendment # 2

Mr. Madden of Nantucket moves to amend House Bill 4087 in Lines139, 159, 247 and 272 by striking out the phrase “publish or publishing notice of a foreclosure sale, as required by section 14” and inserting in its place “commence or commencing the foreclosure process”.

Amendment # 3

Mr. Madden of Nantucket moves to amend House Bill 4087 in Lines 184, 241-242, 294 and 296 by striking the phrase; “division of banks” and inserting in its place; “Attorney General”.

Amendment # 4

Mr. Madden of Nantucket moves to amend House Bill 4087 after subsection 3(f) at Line 294-295 by inserting the following language; “(g) a violation of this Section shall be considered a violation of G.L. c. 93A”.

Amendment # 5

Mr. Madden of Nantucket moves to amend House Bill 4087 in Line 275 and 280 by adding the word “loan” after the word “mortgage”.

Amendment #6

Mr. Madden of Nantucket moves to amend House Bill 4087 in Line 281 by inserting the following language;  “including its reasonable attorney’s fees” after the word “costs”.

Amendment # 7

Ms. Linda Dean Campbell of Methuen moves to amend House Bill 4087 by adding the following section:
“Section XX. Under this section a financial institution that owns a foreclosed property that has been abandoned for more than 90 days, will be required to remit to the city or town where the property is located a fee equal to that of the property tax.
Cities and towns in receipt of said fee shall address public safety concerned created by the abandoned property.”

Amendment # 8

Mr. Fallon of Malden moves to amend H. 4087 in

Subsection (g) of section 35B of c. 244, as appearing in section 2, is hereby amended, at the end of line 251, by adding the following two sentences:

The affidavit shall be conclusive evidence in favor of an arm’s-length third party purchaser for value, at or subsequent to the resulting foreclosure sale, that the foreclosing party identified or referred to as the holder of the foreclosed mortgage in the affidavit has fully complied with this section and is entitled to proceed with foreclosure of the subject mortgage pursuant to the power of sale contained in the mortgage and any one or more of the foreclosure procedures authorized in this chapter.  For purposes of this subsection, the term “arm’s-length, third party purchaser” shall include such purchaser’s heirs, successors and assigns.

Amendment # 9

Mr. Winslow of Norfolk moves to amend  House Bill 4087 by adding the following section:-
XX. Chapter 186 of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by inserting after section 13A the following section:-
Section 13B. Upon a foreclosure of residential real property pursuant to chapter 244, the mortgagor of the property at the time of the foreclosure by sale, if the dwelling is not occupied by a tenant, shall be deemed a tenant at will on a month to month basis, subject to determination by this chapter. The rent due shall be payable to the owner in advance at 1 month intervals following foreclosure.  The rent due shall be the fair market rent rates established by the U.S. Department of Housing and Urban Development for the area in which the dwelling unit is located and the number of bedrooms contained in the dwelling unit, unless the parties agree to a different monthly rental amount, inclusive of heat and utilities. Notwithstanding any general or special law to the contrary, no tenant at will of such dwelling may withhold rent for noncompliance with any state or local code requirements unless the tenant has (1) notified the mortgagee in writing of the defective condition of the property and (2) established a separate bank escrow savings account for deposit of rent that otherwise would be due to the mortgagee and sent proof thereof to the mortgagee each month, or paid for the repair or replacement of any defective condition from rent that otherwise would be due to the mortgagee and sent receipts for same to the mortgagee, or both.

Amendment # 10

Mr. Sciortino of Medford moves to amend the bill by the following:--

On line 195, strike “30 days” and replace it with “60 days”

On line 203, strike “30 days” and replace it with “60 days”

On line 120, after “federal loan modification plan.” insert “If a particular federal or state loan modification program applies to the loan, the creditor must, at a minimum, perform the net present value evaluation for the loan under the applicable federal or state modification program.”

On line 136, after “shall not include a property subject to condemnation, receivership”, strike “or proceedings in United States bankruptcy court”

On line 158, after “creditor shall be”, strike “presumed to have acted in good faith and”

On line 175, after “federal loan modification plan.” insert “If a particular federal or state loan modification program applies to the loan, the creditor must, at a minimum, perform the net present value evaluation for the loan under the applicable federal or state modification program.”

On line 179, after “net recovery of the foreclosure,” strike “or does not meet the borrower’s affordable monthly payment,” and on line 181, after “net present value analysis” strike “and the borrower’s current ability to make monthly payments”

On line 190, after “modified mortgage loan.” insert “Said notice shall include a declaration in the five most common languages other than English, appearing on the first page and stating: ‘This is an important notice regarding a possible foreclosure of your home.  Have it translated immediately.’ Said notice shall also include the following language:

‘You are being sent this loan modification offer because your loan has been identified as having certain predatory characteristics. This is because of a new Massachusetts Law. It requires lenders holding loans with these characteristics to compare their losses from a loan modification you can afford with how much they lose if they foreclosure your mortgage. They must provide you an alternative to foreclosure if they would lose more by foreclosing your mortgage.

You must reply within 60 days of receipt of this notice to participate in this program; you must provide financial information as required. Your lender must respond in thirty days to your response. If you do not reply in time to meet this 60 day deadline or future deadlines specified in this process, your Right to Cure period may be shortened by as much as 60 days although you may still be eligible to apply for a loan modification not under this new law.

Keep proof of sending all materials in this process. If your lender claims not to have received them, your receipts of mailings is proof of compliance and may be used in legal action pre- or post foreclosure.’ ”

On line 205, after “90 days” add “except for good cause or a good faith effort on the part of the borrower to have complied.”

On line 222, remove “waive the borrower’s rights” and replace it with “end the loan modification process”

On line 233, remove “waive the borrower’s rights” and replace it with “end the loan modification process”

On line 224, after “shall include” add the words “reasonable and applicable”

On line 239, insert after “regardless of the mortgage holder.” the words “Nothing in this section shall be construed to limit future offers of or applications for a loan modification prior to the foreclosure auction.”

On line 301, delete the sentence “Said section 2 shall not apply to such mortgages accelerated or whose 302 statutory condition has been violated under the terms of the mortgage to secure the note prior to 303 the effective date of this act.”

Amendment # 11

Representative Walsh of Boston moves to amend the bill (House Bill 4087) by the following:--

On line 128, replace “division of banks” with “Attorney General”

On line 184, replace “division of banks” with “Attorney General”

On line 241, replace “division of banks” with “Attorney General”

On line 251, insert after “this affidavit”, “concurrent with the filing in the Land Court under the Servicemembers Civil Relief Act”

On line 294, replace “division of banks” with “Attorney General”

On line 296, replace “division of banks” with “Attorney General” and remove “in consultation with the office of the attorney general”

Amendment # 12

Messrs. Bastien of Gardner and Madden of Nantucket moves to amend the bill by adding the following sections:-
SECTION AA: Chapter 244 §35A of the Massachusetts General Laws is hereby amended in subsection (b) by striking the words “provided, however, that if a creditor certifies that: (i) it has engaged in a good faith effort to negotiate a commercially reasonable alternative to foreclosure as described in subsection (c); (ii) its good faith effort has involved at least 1 meeting, either in person or by telephone, between a creditor’s representative and the borrower, the borrower’s attorney or the borrower’s representative; and (iii) after such meeting the borrower and the creditor were not successful in resolving their dispute, then the creditor may begin foreclosure proceedings after a right to cure period lasting 90 days. A borrower who fails to respond within 30 days to any mailed communications offering to negotiate a commercially reasonable alternative to foreclosure sent via certified and first class mail or similar service by a private carrier from the lender shall be deemed to have forfeited the right to a 150-day right to cure period and shall be subject to a right to cure period lasting 90 days. The right to cure a default of a required payment shall be granted once during any 3 year period, regardless of mortgage holder.”  In subsection (c) inserting after the word “section”,  “and §35D”; and striking the words “provided, further, that the creditor shall provide by first class and certified mail or similar service by a private carrier to a borrower documentation of good faith effort 10 days prior to meeting, telephone conversation or a meeting pursuant to subsection (b).” by replacing in (h)(10) “The division of banks shall adopt regulations in accordance with the subsection.” with “The Attorney General shall adopt regulations in accordance with this subsection..”  and by striking subsections (c), (d), (f) and (g) and adding the words “and §35D” after the words “this section” to subsection (k)
SECTION BB
Section 35D: Massachusetts Foreclosure Mediation Program and Judicial Review
           
1) Establishment of the Massachusetts Foreclosure Mediation Program.  Not later than ninety (90) days after the enactment of this legislation, the Attorney General shall establish the Massachusetts Foreclosure Mediation Program (MFMP) and promulgate regulations as necessary and appropriate to implementing such a mediation program.  The Attorney General shall also set standards for training mediators in foreclosure mediation, loss mitigation and alternatives to foreclosure.
 
2) Notice of Right to Mediation.  When a mortgagee of residential real property sends a notice of right to cure pursuant to §35A to the mortgagor, it shall also send a copy to the Massachusetts Foreclosure Mediation Program (MFMP).  The MFMP shall then send to the mortgagor the notice of right to mediation, offering the mortgagor the opportunity to participate in mediation.  If a notice of right to cure is not required, the mortgagee shall send a notice of intent to foreclose to the MFMP and the mortgagor at least one hundred and fifty (150) days before initiating foreclosure; the MFMP shall then send the mortgagor the notice of right to mediation.  The MFMP will also telephone mortgagors to inform them of their right to participate in mediation.  If the mortgagor elects to participate in mediation, he/she will have the opportunity to negotiate a commercially reasonable alternative to foreclosure with the mortgagee with the assistance of a neutral third-party mediator.  A commercially reasonable alternative may include but shall not be limited to a modification of the loan, principal, interest rate or term of the mortgage.  If an agreement is not reached in mediation, the mortgagee must seek court permission to proceed with foreclosure under power of sale or entry as set forth in this chapter of the Massachusetts General Laws.  If the mortgagor does not elect to participate in mediation, foreclosure may proceed in accordance with the provisions of this chapter of the Massachusetts General Laws.
3) Duty to Engage in Good Faith Mediation.  If a mortgagor elects to participate in the Massachusetts Foreclosure Mediation Program (MFMP), a mortgagee shall not accelerate the note or otherwise initiate foreclosure proceedings unless the mediator has certified that the mortgagee participated in the MFMP and engaged in mediation in good faith; made all reasonable efforts to find an alternative to foreclosure; and that any agreement is in full compliance with all state and federal guidelines.  Engaging in good faith mediation shall include a review of the borrower’s financial situation including but not limited to evaluating the mortgagor’s eligibility for all loan modification programs, including providing a written net present value (NPV) analysis.  Failure to comply with this section shall constitute a defense to the foreclosure. 
4)  Administration of the Massachusetts Foreclosure Mediation Program.     
            a.  The notice of right to mediation shall be promulgated by the Attorney General, and shall include a declaration in the five most common languages other than English, appearing on the first page and stating: “This is an important notice regarding a possible foreclosure of your home.  Have it translated immediately.”  The mortgagor will also be provided with a self-addressed, stamped envelope in which to return a form electing to participate in mediation.  The mortgagor or his/her representative may also indicate his/her intention to participate in mediation via telephone, online, or in-person at designated non-profit agencies. 
b.  An in-person mediation session shall be conducted between the mortgagor and his/her representative and/or housing counselor, and the mortgagee's representative, who must have authority to negotiate alternatives to foreclosure, including but not limited to a modification of the loan, principal, interest rate or term of the mortgage.  As early as possible but no later than five (5) days before the scheduled mediation, the mortgagee shall provide proof of ownership and a written net present value analysis to the mortgagor and the MFMP.  Where required, the mortgagee shall bring additional documents supporting the net present value analysis to the mediation session.
            c.   Borrowers will be referred to and encouraged to work with a non-profit housing counseling agency.  If the initial mediation session does not result in an agreement, the parties may agree to a second mediation session. 
d.   The mediation period shall conclude not more than one hundred and twenty (120) days after the mortgagor elects to participate in mediation.  During this time the mortgagee shall not accelerate the note or otherwise initiate foreclosure proceedings. 

e.  If mediation results in an agreement, the mortgagor shall have not fewer than seven (7) days to review and sign the mediation agreement and return it to the MFMP and the mortgagee.  The mortgagor shall not be required to waive any legal rights or defenses by entering into a mediation agreement.  All mortgage modifications shall be recorded in the appropriate registry of deeds.
f.  Any costs necessary to establish and operate the Massachusetts Foreclosure Mediation Program shall be borne by the parties to the mediation as set forth in the regulations; and by the filing fee for foreclosure complaints pursuant to paragraph 5 below.  A mortgagor’s portion of the fee shall not exceed 15% of the total cost of the mediation.  A mortgagor’s inability to pay for mediation shall not be a bar to participation in the MFMP.  
5.  Judicial Requirement for Mediation Without Agreement.  If the mediation process does not result in an agreement, the mortgagee must file in Superior Court a Complaint to Proceed with Foreclosure under power of sale or entry.  The mortgagor can file an answer to such action and can raise all legal and equitable defenses.  If judgment for the mortgagee enters, the mortgagee may complete foreclosure by power of sale or entry pursuant to this chapter of the Massachusetts General Laws. 

Amendment # 13

Representative Costello of Newburyport and Representative Honan of Boston move to amend H4087 by the following:-

In section 2 by inserting at the end of the definition of “certain mortgage loan” in line 105 “For the purposes of this section, loans financed by the Massachusetts Housing Finance Agency, established by Chapter 708 of the Acts of 1966, as amended, and loans originated through programs administered by the Massachusetts Housing Partnership Fund Board established in Section 35 of Chapter 405 of the Acts of 1985, as amended, shall not be certain mortgage loans;”

In section 2 by inserting at the end of the definition of “creditor” in line 111 “Notwithstanding the forgoing, the bodies politic and corporate and public instrumentalities of the Commonwealth established by Chapter 708 of the Acts of 1966, as amended, and established in section 35 of Chapter 405 of the Acts of 1985, as amended, shall not be a Creditor for purposes of this section.”

Amendment # 14

Messrs. James O’Day of West Boylston and Madded of Nantucket moves to amend the bill (House No. 4087) by inserting the following text:--

In Section 2, in line 120, after “federal loan modification plan.” Insert:  “If a particular federal or state loan modification program applies to the loan, the creditor must, at a minimum, perform the net present value evaluation for the loan under the applicable federal or state modification program.”
In Section 2, in line 136, after “collateral for a commercial loan”, strike  “; and provided further, that residential property shall not include a property subject to condemnation, receivership, or proceedings in United States bankruptcy court”
In Section 2, in line 188, by striking out the following section:
“c) In accordance with this section, for certain mortgage loans, the creditor shall send notice, concurrently with the notice required by subsection (g) of section 35A, of the borrower’s rights to pursue a modified mortgage loan. Said notice shall be deemed to be delivered to the mortgagor when sent by first class mail and certified mail or similar service by a private carrier to the mortgagor at the mortgagor’s address last known to the mortgagee or anyone holding thereunder. A copy of said notice shall be filed with the commissioner of the division of banks and the office of the attorney general. The timeframe for determining whether a modified mortgage loan is offered shall occur within 150 days. No more than 30 days following delivery of the notice as provided for in this section, a borrower who holds a certain mortgage loan shall notify a creditor of (i) the borrower’s intent to pursue a modified mortgage loan which shall include a statement of the borrower’s income and a complete list of total debts and obligations  at the time of receipt of the notice; (ii) the borrower’s intent to pursue an alternative to foreclosure, including a short sale or deed in lieu of foreclosure; (iii) the borrower’s intent not to pursue a modified mortgage loan and pursue the 150 day right to cure period described in section 35A; or (iv) the borrower’s intent to waive the 150 day right to cure period and proceed to foreclosure. A borrower who holds a certain mortgage loan and fails to respond to the creditor within 30 days of delivery of the notice provided for in this section shall be deemed to have forfeited the 150 day right-to-cure period and shall be subject to a right-to-cure period of 90 days. A borrower shall be presumed to have notified the creditor if the borrower provides proof of delivery through the United States postal service or similar carrier. No more than 30 days following receipt of the borrower’s notification that the borrower intends to pursue a modified mortgage loan, a creditor shall provide the borrower with its assessment in writing pursuant to subsection (b). The assessment shall include, but not be limited to (i) a written statement of the borrower’s income, debts and obligations as determined by the creditor; (ii) the creditor’s net present value analysis of the mortgage loan, (iii) the creditor’s anticipated net recovery at foreclosure; (iv) a statement of the interests of the creditor; and (v) a modified mortgage loan offer pursuant to the requirements of this section or notice that no modified mortgage loan will be offered. Where a modified mortgage loan is offered, the offer shall include the first and last name(s) and contact phone number(s) of the creditor’s representative. The assessment shall be provided by first class and certified mail. A creditor shall be presumed to have provided the assessment to the borrower if the creditor provides proof of delivery through the United States postal service or similar carrier. A borrower who receives a modified mortgage loan offer from a creditor shall respond within 30 days of receipt of the assessment and offer of a modified mortgage loan. The borrower may (i) accept the offer of a loan modification as provided by the creditor; (ii) make a reasonable counteroffer; or (iii) state that the borrower wishes to waive the borrower’s rights as provided by this section and proceed to foreclosure. The borrower’s response shall be in writing and, where a counteroffer is proposed, shall include substantiating documentation in support of the counteroffer.  The response shall be provided by first class and certified mail. A borrower shall be presumed to have responded if the borrower provides proof of delivery through the United States postal service or similar carrier.  A borrower who fails to respond to the creditor within 30 days of receipt of a modified mortgage loan offer shall be deemed to have forfeited the 150 day right-to-cure period and shall be subject to a right-to-cure period of 90 days. Where a counteroffer is proposed, the creditor shall accept, reject or propose a counteroffer to the borrower within 30 days of receipt.  Pursuant to this section, additional offers by both parties shall be considered during the 150 right-to-cure period provided, however, that a borrower may at any time state, in writing,  that the borrower wishes to waive the borrower’s rights as provided by this section and proceed to foreclosure. Nothing in this section shall be construed as preventing a creditor and a borrower from negotiating the terms of a modified mortgage loan by telephone or in person following the initial offer of a modified mortgage loan by a creditor; provided, however, that all offers, whether by a creditor or a borrower, shall be in writing and signed by the offeror. The right to a modified mortgage loan, as described in this section, shall be granted once during any 3 year period, regardless of the mortgage holder.”
 And inserting in place thereof the following:
“(c) Establishment of the Massachusetts Foreclosure Mediation Program.  Not later than ninety (90) days after the enactment of this legislation, there shall be established the Massachusetts Foreclosure Mediation Program (MFMP) under the Massachusetts Office of Public Collaboration. 
When a mortgagee of residential real property sends a notice of right to cure pursuant to §35A to the mortgagor, it shall also send a copy to the Massachusetts Foreclosure Mediation Program (MFMP).  The MFMP shall then send to the mortgagor a notice offering the mortgagor the opportunity to participate in mediation. Said notice shall include a declaration in the five most common languages other than English, appearing on the first page and stating: “This is an important notice regarding a possible foreclosure of your home.  Have it translated immediately.”
An in-person mediation session shall be conducted by a neutral third-party mediator between the mortgagor and his/her representative and/or housing counselor, and the mortgagee's representative, who must have authority to negotiate alternatives to foreclosure, including but not limited to a modification of the loan, principal, interest rate or term of the mortgage.  The mediation conference shall be scheduled at a time and place determined by the Massachusetts Foreclosure Mediation Program but not later than 45 days following the mortgagor's receipt of his/her statutory notice of right to cure under MGL Chapter 244 Section 35-A.  As early as possible but no later than five (5) days before the scheduled mediation, the mortgagee shall provide proof of ownership, a written net present value analysis and the creditor’s anticipated net recovery at foreclosure to the mortgagor and the MFMP.  Where required, the mortgagee shall bring additional documents supporting the net present value analysis to the mediation session. If the initial mediation session does not result in an agreement, the parties may agree to a second mediation session. If mediation results in an agreement, the mortgagor shall have not fewer than seven (7) days to review and sign the mediation agreement and return it to the MFMP and the mortgagee. The mediation period shall conclude not more than one hundred and twenty (120) days after the mortgagor elects to participate in mediation.
If the mortgagor does not elect to participate in mediation, foreclosure may proceed in accordance with the provisions of this chapter of the Massachusetts General Laws. If a mortgagor elects to participate in the MFMP, a mortgagee shall not accelerate the note or otherwise initiate foreclosure proceedings unless the mediator has certified that the mortgagee participated in the MFMP and engaged in mediation in good faith; made all reasonable efforts to find an alternative to foreclosure; and that any agreement is in full compliance with all state and federal guidelines.
Any costs necessary to establish and operate the Massachusetts Foreclosure Mediation Program shall be borne by the parties to the mediation as set forth in the regulations; and by a $50 surcharge on the filing fee for foreclosure complaints pursuant to the Civil Service Members Relief Act. A mortgagor’s portion of the fee shall not exceed 15% of the total cost of the mediation.  A mortgagor’s inability to pay for mediation shall not be a bar to participation in the MFMP.  The Massachusetts Office of Public Collaboration shall promulgate mediation regulations, subject to approval by the Office of the Attorney General.”
In Section 2, in line 251, after “this affidavit” insert “concurrent with the filing in the land court under the servicemembers Civil Relief Act.”
In Section 5, in line 301, after “effective date of this act”, strike “Said section 2 shall not apply to such mortgages accelerated or whose statutory condition has been violated under the terms of the mortgage to secure the note prior to the effective date of this act.”
The mediation conference shall be scheduled at a time and place determined by the Massachusetts Foreclosure Mediation Program but not later than 45 days following the mortgagor's receipt of his/her statutory notice of right to cure under MGL Chapter 244 Section 35-A."

Amendment # 15

Representative Sánchez of Boston moves to amend the bill by inserting after Section 5 line 303 Section XXX: Chapter 244 of the Massachusetts General Laws is hereby amended by inserting after Section 14A the following new section:- Section 14B: Occupant Remaining in Possession after Sale If at the time of a sale of residential real property conducted in accordance with a power in a mortgage and with Section 14 of this chapter the mortgagor continues to occupy such property in whole or in part, and if the purchaser at such sale is the mortgagee or other person exercising the power of sale or a subsidiary, parent, trustee, or agent of such mortgagee or person or if the purchaser at such sale is any other entity that engages in mortgage lending or servicing or if the purchaser at such sale is the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation or the Federal Deposit Insurance Corporation, the mortgagor, and any household members, shall be permitted to remain until binding purchase and sale agreement has been executed for a bona fide with a purchaser who intends to occupy the housing accommodation as such purchaser’s primary residence and who is not a foreclosing owner, where such agreement requires the housing accommodation or some portion thereof to be conveyed vacant, the foreclosure sale purchaser may initiate eviction proceedings against the mortgagor pursuant to the provisions of Chapter 239 of the General Laws in possession of the property during the time the property is owned by the purchaser, provided the mortgagor (1) makes monthly rent payments to the purchaser in an amount agreed to by the mortgagor and purchaser or, in the absence of such agreement, an amount equal to the Fair Market Rent as established by the United States Department of Housing and Urban Development pursuant to 42 U.S.C. c § 1437f(o), as it exists or may be amended, for a unit of comparable size in the area in which the property is located; (2) does not commit a nuisance in the property or cause substantial damage to the property or create a substantial interference with the quiet enjoyment of other occupants of the property; (3) does not use or permit the property to be used for any illegal purpose; and (4) does not refuse the purchaser reasonable access to the property for the purpose of making necessary repairs or improvement required by the laws of the United States, the commonwealth or any subdivision thereof, or for the purpose of inspection as permitted or required by agreement or by law or for the purpose of showing the unit to a prospective purchaser or mortgagee provided. If the mortgagor remaining in possession after sale fails to comply with the conditions set forth in this section or if a binding purchase and sale agreement has been executed for a bona fide third party to purchase the property from the foreclosure sale purchaser, the foreclosure sale purchaser may initiate eviction proceedings against the mortgagor pursuant to the provisions of Chapter 239 of the General Laws.

Amendment # 16

Miss Reinstein of Revere moves to amend House 4087 in section 3, in line 295, by adding the following subsection: (g) In all circumstances in which an offer to purchase either a mortgage loan or residential property is made by an entity with a tax-exempt filing status under Section 501 (c )(3) of the Internal Revenue Code, or an entity controlled by an entity with such tax exempt filing status, no Creditor shall require as a condition of sale or transfer to any such entity any affidavit, statement, agreement or addendum limiting ownership or occupancy of the residential property by the Borrower and, if obtained, such affidavit, statement, agreement or addendum shall not provide a basis to avoid a sale or transfer nor shall it be enforceable against such acquiring entity or any real estate broker, Borrower, or settlement agent named in such affidavit, statement or addendum.

Amendment # 17

Mr. Winslow of Norfolk moves to amend House Bill 4087 by adding the following section:- XX. Chapter 186 of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by inserting after section 13A the following section:- Section 13B. Upon a foreclosure of residential real property pursuant to chapter 244, the mortgagor of the property at the time of the foreclosure, if the dwelling is not occupied by a tenant, shall be deemed a tenant at will on a month to month basis, subject to determination by this chapter. The rent due shall be payable to the owner in advance at 1 month intervals following foreclosure. The rent due shall be the fair market rent rates established by the U.S. Department of Housing and Urban Development for the area in which the dwelling unit is located and the number of bedrooms contained in the dwelling unit, unless the parties agree to a different monthly rental amount, inclusive of heat and utilities. Notwithstanding any general or special law to the contrary, no tenant at will of such dwelling may withhold rent for noncompliance with any state or local code requirements unless the tenant has (1) notified the mortgagee in writing of the defective condition of the property and (2) established a separate bank escrow savings account for deposit of rent that otherwise would be due to the mortgagee and sent proof thereof to the mortgagee each month, or paid for the repair or replacement of any defective condition from rent that otherwise would be due to the mortgagee and sent receipts for same to the mortgagee, or both.

Amendment # 18

Representatives Brady of Brockton, Canavan of Brockton, Creedon of Brockton, Cantwell of Marshfield and Ayers of Quincy move to amend House, No. 4087 by adding the following section; Section XX: Section 6 D of chapter 183 is hereby amended by adding the following, Each assignment of mortgage secured by residential property, as defined in said section 1 of chapter 255E, Shall be forwarded within thirty days of the date of the execution of said assignment to the appropriate registry district for recording.”

Amendment # 19

Representative Costello of Newburyport moves to amend H. 4087 by deleting the words “not later than December 31” in line 298 and inserting in place thereof the words:-- “within 90 days of the end of each calendar year through December 31, 2017.”

Amendment # 20

Mr. Costello of Newburyport moves to amend H 4087 by the following:- In line 96 of section 2 by striking the words “interest-only payments for any period of time;” and inserting the words “interest-only payments for any period of time, except in the case where the mortgage loan is an open-end home equity line of credit.” In line 197-199 of section 2 by striking the words “the borrower’s intent to pursue a modified mortgage loan which shall include a statement of the borrower’s income and a complete list of total debts and obligations at the time of receipt of the notice;” and inserting the words “the borrower’s intent to pursue a modified mortgage loan which shall include a verifiable statement of the borrower’s income and a complete list of total debts and obligations at the time of the receipt of the notice;” By striking out section 5 in its entirety and inserting the following section:- SECTION 5. Sections 1 and 2 shall take effect on October 1, 2012. Section 2 shall apply to certain mortgage loans of residential property, as defined by this chapter, located in the commonwealth which secures a loan before, on or after the effective date of this act. Said section 2 shall not apply to such mortgages where the notice pursuant to section 35A of chapter 244 has been sent and the mortgage is not eligible for a subsequent right-to-cure under subsection (b) of section 35A of chapter 244.

Amendment # 21

Ms. Story of Amherst moves to amend the bill (House No. 4087) by adding the following new section:- SECTION X. Section 5 of Chapter 188 of the General Laws is hereby amended by inserting at the end thereof the following new subsection:- (e) The declaration of homestead shall record whether the owner to be benefitted is a servicemember who may be subject to protection under the Servicemembers Civil Relief Act, 50 U.S.C. App. § 533 should the owner be called to active duty.

Amendment # 22

Representative Walsh of Boston moves to amend the bill (House No. 4087) by the following:-- On Line 77 remove “The notice shall not be defective if any holder within the chain of assignments either changed its name or merged into another entity during the time it was the mortgage holder, provided it is recited within the body of the notice the fact of any merger, consolidation, amendment, conversion or acquisition of assets causing the change in name or identity, the recital of which shall be conclusive in favor of any bona fide purchaser, mortgagee, lienholder or encumbrancer of value relying in good faith thereon.” On line 139, replace “publish notice of a foreclosure sale, as required by section 14” with “commence foreclosure” On line 159 replace “publishing a notice of a foreclosure sale, as required by section 14” with “commencing foreclosure” On line 247 replace “publishing a notice of a foreclosure sale, as required by section 14,” with “commencing foreclosure,” On line 272 replace “publish notice of foreclosure, pursuant to section 14” with “commence foreclosure”

Amendment # 23

Representative Forry of Boston moves to amend the bill (House, No. 4087) in SECTION 1, from lines 77 to 82, by striking out “The notice shall not be defective if any holder within the chain of assignments either changed its name or merged into another entity during the time it was the mortgage holder, provided it is recited within the body of the notice the fact of any merger, consolidation, amendment, conversion or acquisition of assets causing the change in name or identity, the recital of which shall be conclusive in favor of any bona fide purchaser, mortgagee, lienholder or encumbrancer of value relying in good faith thereon.”; in SECTION 2, line 139, by striking out the words “publish notice of a foreclosure sale, as required by section 14,” and inserting in place thereof the following words “commence foreclosure”; in SECTION 2, line 159, by striking out the words “publishing a notice of a foreclosure sale, as required be section 14” and inserting in place thereof the following words “commencing foreclosure”; in SECTION 3, line 247, by striking out the words “publishing a notice of a foreclosure sale, as required by section 14,” and inserting in place thereof the following words “commence foreclosure”; and In SECTION 3, line 272, by striking out the words “publish notice of foreclosure, pursuant to section 14,” and inserting in place thereof the following words “commence foreclosure”.

Amendment # 24

Mr. Winslow of Norfolk moves to amend House Bill 4087 by adding the following section:- Section 1. (a) Notwithstanding any general or special law to the contrary, the Massachusetts Housing Finance Agency, herein referred to as the agency, shall establish an enhanced mortgage refinance program for real property located in the commonwealth to provide mortgage refinance products to all eligible participants. For the purpose of this section, eligible participants shall be all persons who reside in the Commonwealth who meet the following eligibility criteria: (1) has been assigned a credit rating greater than six hundred and eighty by each of the three major credit bureaus; (2) holds no history of default; (3) holds no history of bankruptcy; and (4) is not currently in default of mortgage payments due. (b) Notwithstanding any general or special law to the contrary, $100 million shall be encumbered from the Commonwealth Stabilization fund, established under section 2 of chapter 29, to be pledged to the agency as a mortgage refinance guarantee. (c) Notwithstanding any general or special law to the contrary, the agency may charge a reasonable fee, as determined by the agency, to cover the expenses of administering the program and any liability that may arise given an anticipated rate of default; provided, however, that the fee charged to each borrower for mortgage refinance product shall not exceed 10% of the difference between the annual payment on the original mortgage and that of the refinanced mortgage. (d) Notwithstanding any general or special law to the contrary, said guarantee on a refinanced mortgage sold to a borrower by the agency shall expire upon the sale of the property, at the time the borrower has refinanced with another lender, or at such time as the amount outstanding on the mortgage falls below 80% of the real property’s assessed value.

Amendment # 25

Mr. Fernandes of Milford moves to amend H. 4087, in Section 5, by inserting after the deleting the following: “Said section 2 shall not apply to such mortgages accelerated or whose statutory condition has been violated under the terms of the mortgage to secure the note prior to the effective date of this act.”

Amendment # 26

Representative Atsalis of Barnstable moves to amend the bill (House, No. 4087) 1 SECTION 1. Chapter 244 of the General Laws, as appearing in the 2010 Official Edition, is 2 hereby amended by adding the following new section: 3 Section 35B. Prerequisite to Commencing Foreclosure Proceedings For Certain Mortgage Loans; 4 Reasonable Steps and Good Faith Efforts; Safe Harbor; Regulatory Authority. 5 (a) As used in this section, the following words shall, unless the context clearly requires 6 otherwise, have the following meanings: 7 “Borrower”, a mortgagor of a mortgage loan. 8 “Certain mortgage loan,” shall mean a loan to a natural person made primarily for personal, 9 family or household purposes secured wholly or partially by a mortgage on an owner-occupied 10 residential property that bears one or more of the following loan features: 11 (i) an introductory interest rate granted for a period of 3 years or less and such introductory 12 rate is at least 2 percent lower than the fully indexed rate; 13 (ii) interest-only payments for any period of time; 14 (iii) a payment option feature, where any one of the payment options is less than principal 15 and interest fully amortized over the life of the loan; 16 (iv) did not require full documentation of income or assets; 17 (v) prepayment penalties that exceed section 56 of chapter 183 of the General Laws or 18 applicable federal law; 19 (vi) the loan was underwritten with a Loan-to-Value ratio at or above 90 percent and the ratio 20 of the borrower’s debt, including all housing-related and recurring monthly debt, to the 21 borrower’s income exceeded 38 percent; or 22 (vii) the loan was underwritten as a component of a loan transaction wherein the combined 23 Loan-to-Value ratio was above 95 percent. 24 “Creditor”, a person or entity that holds or controls, partially, wholly, indirectly, directly, or in a 25 nominee capacity, a mortgage loan securing an owner-occupied residential property, including, 26 without limitation, an originator, holder, investor, assignee, successor, trust, trustee, nominee 27 holder, Mortgage Electronic Registration System or mortgage servicer, including the Federal 28 National Mortgage Association or the Federal Home Loan Mortgage Corporation. “Creditor” 29 shall also include any servant, employee or agent of a creditor. 30 “Creditor’s representative”, a person who has the authority to negotiate and approve the terms of 31 and modify a mortgage loan. “Foreclosure Process”, the commencement of the foreclosure process in Massachusetts which shall be deemed to commence with the sending to a borrower a default/right to cure notice in strict compliance with the requirements of section 35A of this Chapter and/or any other default notice requirement under a mortgage. 32 “Modified mortgage loan”, a mortgage modified from its original terms including, but not 33 limited to, a loan modified pursuant to 1 of the following: (i) the Home Affordable Modification 34 Program; (ii) the Federal Deposit Insurance Corporation’s Loan Modification Program; (iii) any 35 modification program that a lender uses which is based on accepted principles and the safety and 36 soundness of the institution and authorized by the National Credit Union Administration, the 37 division of banks or any other instrumentality of the commonwealth; (iv) the Federal Housing 38 Administration; or (v) a similar federal loan modification plan. 39 “Mortgage loan”, a loan, including the beneficial interest(s) therein as evidenced by the promissory note executed in conjunction with any mortgage, to a natural person made primarily for personal, family or household 40 purposes secured wholly or partially by a mortgage on residential property. 41 “Net present value”, the present net value of a residential property based on a calculation using 1 42 of the following: (i) the federal Home Affordable Modification Program Base Net Present Value 43 Model, (ii) the Federal Deposit Insurance Corporation’s Loan Modification Program, (iii) the 44 Massachusetts Housing Finance Agency’s loan program used solely by the agency to compare 45 the expected economic outcome of a loan with or without a modified mortgage loan, or (iv) any 46 model approved by the division of banks to consider the total present value of a series of future 47 cash flows relative to a mortgage loan. 48 “Residential property”, real property located in the commonwealth having thereon a dwelling 49 house with accommodations for 4 or less separate households and occupied, or to be occupied, in 50 whole or in part by the obligor on the mortgage debt; provided, however, that residential 51 property shall be limited to the principal residence of a person; provided further, that residential 52 property shall not include an investment property or residence other than a primary residence; 53 and provided further, that residential property shall not include residential property taken in 54 whole or in part as collateral for a commercial loan; and provided further that residential 55 property shall not include a property subject to condemnation, receivership, or proceedings in 56 United States Bankruptcy Court. 57 (b) A creditor shall not commence the foreclosure process shall not publish notice of a foreclosure sale, as required by section 14 of this 58 chapter, upon certain mortgage loans unless it has first taken reasonable steps and made a good 59 faith effort to avoid foreclosure. The determination of whether a creditor has taken reasonable 60 steps and made a good faith effort to avoid foreclosure shall mean that the creditor has 61 considered: (i) an assessment of the borrower’s current circumstances including, without 62 limitation, the borrower’s current income, total debts and obligations; (ii) the net present value of 63 receiving payments pursuant to a modified mortgage loan as compared to the anticipated net 64 recovery following foreclosure; and (iii) the interests of the creditor, including, without 65 limitation, investors. 66 (1) In interpreting this subsection (b), except as otherwise specified in a contract, a servicer of 67 pooled residential mortgages may determine whether the net present value of the payments on 68 the modified mortgage loan is likely to be greater than the anticipated net recovery that would 69 result from foreclosure to all investors and holders of beneficial interests in such investment, but 70 not to any individual or groups of investors or beneficial interest holders, and shall be deemed to 71 act in the best interests of all such investors or holders of beneficial interests if the servicer 72 agrees to or implements a modified mortgage loan or takes reasonable loss mitigation actions 73 that comply with this section. Further, any modified mortgage loan offered to the borrower must 74 comply with current federal and state law, including, without limitation, 940 C.M.R. 8.00 et seq., 75 and the borrower must be able to reasonably afford to repay the modified mortgage loan 76 according to its scheduled payments. 77 (2) Safe Harbor. A creditor shall be presumed to have acted in good faith and deemed to comply 78 with subsection (b), if, prior to commencing the foreclosure process prior to publishing a notice of a foreclosure sale, as required by section 14 79 of this chapter, the creditor: 80 (i) determines a borrower’s current ability to make monthly payments (the “affordable monthly 81 payment”), reasonably taking into account the borrower’s current circumstances including 82 income, debts and obligations; 83 (ii) identifies a modified mortgage loan that achieves the borrower’s affordable monthly 84 payment, which may include one or more of the following: reduction in principal; reduction in 85 interest rate; or an increase in amortization period but not more than a 15 year increase not to 86 exceed a 45 year period; 87 (iii) conducts an analysis comparing the net present value of the modified mortgage loan and the 88 creditor’s anticipated net recovery that would result from foreclosure; and 89 (iv) either (a) in all circumstances where the net present value of the modified mortgage loan 90 exceeds the anticipated net recovery at foreclosure, agrees to modify the loan in a manner that 91 provides the affordable monthly payment, or (b) in circumstances where the net present value of 92 the modified mortgage loan is less than the anticipated net recovery of the foreclosure, or does 93 not meet the borrower’s affordable monthly payment, notifies the borrower that no modified 94 mortgage loan will be offered and provides a written summary of the creditor’s net present value 95 analysis and the borrower’s current ability to make monthly payments, after which the creditor 96 may proceed with the foreclosure process in conformity with this chapter. 97 (3) The Attorney General division of banks may adopt, amend or repeal rules and regulations to aid in the 98 administration and enforcement of this section, including regulations that determine further 99 requirements for reasonable steps and good faith efforts to avoid foreclosures as required by 100 subsection (b) and that provide safe harbors for compliance in addition to that set forth in this 101 section. 102 (c) In accordance with this section, for certain mortgage loans, the creditor shall send notice, 103 concurrently with the notice required by subsection (g) of section 35A of this chapter, of the 104 borrower’s rights to pursue a modified mortgage loan. Said notice shall be deemed to be 105 delivered to the mortgagor when sent by first class mail and certified mail or similar service by a 106 private carrier to the mortgagor at the mortgagor’s address last known to the mortgagee or 107 anyone holding thereunder. A copy of said notice shall also be filed with the commissioner of the 108 division of banks and the office of the attorney general. The timeframe for determining whether a 109 modified mortgage loan is offered shall occur within 150 days as follows. No more than 30 days 110 following delivery of the notice as provided for in this section, a borrower who holds a certain 111 mortgage loan shall notify a creditor of (i) the borrower’s intent to pursue a modified mortgage 112 loan which shall include a statement of the borrower’s income and a complete list of total debts 113 and obligations at the time of receipt of the notice; (ii) the borrower’s intent to pursue an 114 alternative to foreclosure, including a short sale or deed in lieu; (iii) the borrower’s intent not to 115 pursue a modified mortgage loan and pursue the 150 day right to cure period described in section 116 35A of this chapter ; or (iv) the borrower’s intent to waive the 150 day right to cure period and 117 proceed to foreclosure. A borrower who holds a certain mortgage loan and fails to respond to the 118 creditor within 30 days of delivery of the notice provided for in this section shall be deemed to 119 have forfeited the 150 day right-to-cure period and shall be subject to a right-to-cure period 120 lasting 90 days. A borrower shall be presumed to have notified the creditor if the borrower 121 provides proof of delivery through the United States Postal Service or similar carrier. No more 122 than 30 days following receipt of the borrower’s notification that the borrower intends to pursue 123 a modified mortgage loan, a creditor shall provide the borrower with its assessment in writing 124 pursuant to subsection (b). The assessment shall include, but not be limited to (i) a written 125 statement of the borrower’s income, debts and obligations as determined by the creditor; (ii) the 126 creditor’s net present value analysis of the mortgage loan; (iii) the creditor’s anticipated net 127 recovery at foreclosure; (iv) a statement of the interests of the creditor; (v) a modified 128 mortgage loan offer pursuant to the requirements of this section or notice that no modified 129 mortgage loan will be offered and (vi) a statement executed under the pains and penalties of perjury as to who owns the borrower’s mortgage loan and that the creditor, if a loan servicer, has notified its principal of its offer and/or decision and has complied in all respects with its principal’s requirements for modifying loans . Where a modified mortgage loan is offered, the offer shall include 130 the first and last name(s) and contact phone number(s) of the creditor’s representative. The 131 assessment shall be provided by first class and certified mail. A creditor shall be presumed to 132 have provided the assessment to the borrower if the creditor provides proof of delivery through 133 the United States Postal Service or similar carrier. A borrower who receives a modified mortgage 134 loan offer from a creditor shall respond within 30 days of receipt of the assessment and offer of a 135 modified mortgage loan. The borrower may (i) accept the offer of a loan modification as 136 provided by the creditor; (ii) make a reasonable counteroffer; or (iii) state that the borrower 137 wishes to waive the borrower’s rights as provided by this section and proceed to foreclosure. The 138 borrower’s response shall be in writing and, where a counteroffer is proposed, shall include 139 reasonable substantiating documentation in support of the counteroffer. The response shall be provided by 140 first class and certified mail. A borrower shall be presumed to have responded if the borrower 141 provides proof of delivery through the United States Postal Service or similar carrier. A 142 borrower who fails to respond to the creditor within 30 days of receipt of a modified mortgage 143 loan offer shall be deemed to have forfeited the 150 day right-to-cure period and shall be subject 144 to a right-to-cure period lasting 90 days. Where a counteroffer is proposed, the creditor shall 145 accept, reject or propose a counteroffer to the borrower within 30 days of receipt. Pursuant to 146 this section, additional offers by both parties shall be considered during the 150 right-to-cure 147 period provided, however, that a borrower may at any time state, in writing, that the borrower 148 wishes to waive the borrower’s rights as provided by this section and proceed to foreclosure. A borrower’s waiver of rights under this section shall not preclude a borrower from challenging any aspect of the foreclosure process in a court of competent jurisdiction. 149 Nothing in this section shall be construed as preventing a creditor and a borrower from 150 negotiating the terms of a modified mortgage loan by telephone or in person following the initial 151 offer of a modified mortgage loan by a creditor provided, however, that all offers, whether by a 152 creditor or a borrower, shall be in writing and signed by the offeror. The right to a modified 153 mortgage loan, as described in this section, is only required to be granted once during any 3 year period, but shall be renewed where the mortgage loan is assigned. 154 regardless of the mortgage holder. 155 (d) The notice required in subsection (c) shall, at a minimum, include all of the information required under Section 35A of this chapter. The Attorney General shall adopt regulations in accordance with this subsection. 158 (e) Nothing in this section shall prevent a creditor from offering or accepting alternatives to 159 foreclosure, such as a short sale or deed-in-lieu of foreclosure, if the borrower requests such 160 alternatives, rejects a modified mortgage loan offer or does not qualify for a modified mortgage 161 loan pursuant to this section. 162 (f) The Attorney General shall, in consultation with Division of Banks, track the 163 resolution of certain mortgage loans and provide a report of said results to the joint committee on 164 financial services on December 31, 2013, and each subsequent year on December 31, through the 165 year 2017. 166 (g) Prior publishing a notice of a foreclosure sale, as required by section 14 of this chapter, the 167 creditor, or where the creditor is not a natural person, an officer or duly authorized agent of the 168 creditor, must certify compliance with this section in an affidavit executed under the pains and penalties of perjury based upon a review of the 169 creditor’s business records. The creditor, or an officer or duly authorized agent of the creditor, 170 shall record this affidavit with the appropriate registry of deeds, or for registered land, with the 171 land court and shall mail a copy to the borrower by first class mail and certified mail or similar service by a private carrier to the mortgagor at the mortgagor’s address last known to the mortgagee or anyone holding thereunder. 172 SECTION 2. Section 35 of chapter 244 of the General Laws, as appearing in the 2010 Official 173 Edition, is hereby amended by adding the following new Section:- 174 Section 35C. Prohibited Conduct In Connection with Foreclosure 175 For purposes of this section, the following words shall have the following meanings: 176 "Creditor'', a person or entity that holds or controls, partially, wholly, indirectly, directly, or in a 177 nominee capacity, a mortgage loan securing a residential property, including, without limitation, 178 an originator, holder, investor, assignee, successor, trust, trustee, nominee holder, Mortgage 179 Electronic Registration System or mortgage servicer, including the Federal National Mortgage 180 Association or the Federal Home Loan Mortgage Corporation. "Creditor'' shall also include any 181 servant, employee or agent of a creditor. 182 “Borrower” shall mean a mortgagor of a mortgage loan. 183 “Mortgage loan”, a loan, including the beneficial interest(s) therein as evidenced by the promissory note executed in conjunction with any mortgage, to a natural person made primarily for personal, family or household purposes secured wholly or partially by a mortgage on residential property. 185 “Residential property”, real property located in the commonwealth having thereon a dwelling 186 house with accommodations for 4 or less separate households and occupied, or to be occupied, in 187 whole or in part by the obligor on the mortgage debt; provided, however, that residential 188 property under this Section shall be limited to the principal residence of a person; provided further, that residential 189 property shall not include an investment property or residence other than a primary residence; 190 and provided further, that residential property shall not include residential property taken in 191 whole or in part as collateral for a commercial loan. 192 (a) Proper documentation prior to foreclosure. A creditor shall not commence the foreclosure process publish notice of foreclosure, 193 pursuant to section 14 of this chapter, when it knows or should know that it is not the present 194 holder of the mortgage loan, including, without limitation, if the creditor is not the original 195 mortgagee and commences the foreclosure process without possessing a valid written, signed, notarized and dated 196 assignment evidencing the assignment of the mortgage loan in accordance with section 14 of chapter 197 244. 198 (b) No imposition of unfair costs. A creditor violates this chapter if it imposes upon the borrower or a third party 199 the cost of correcting, curing, or confirming documentation relating to the sale, transfer, or 200 assignment of a mortgage loan, including, without limitation, a creditor must bear the costs 201 related to curative actions taken because a foreclosure was commenced without the creditor’s 202 possession of a valid, written, signed, notarized and dated assignment evidencing the assignment of the 203 mortgage loan, in violation of section 14 of chapter 244 Further, the borrower or a third 204 party may recover all of its costs for having to correct, cure, or confirm documentation. 205 (c) No misrepresentations. A creditor violates this chapter if it makes statements to a state or 206 federal court related to foreclosure or compliance with this chapter, orally or in writing, that it 207 knows or should know are false, including, without limitation, statements about the offering of a 208 loan modification, the borrower’s history of payments, the validity of the assignment of the 209 mortgage loan, that the creditor is the record holder of the mortgage loan, or the creditor’s 210 compliance with any other requirements of this chapter. 211 (d) No imposition of fees for services not performed. A creditor violates this chapter if the 212 creditor imposes a fee upon a borrower for goods not rendered or services not performed in 213 connection with a foreclosure. 214 (e) Splitting charges: No person shall give and no person shall accept any portion, split, or 215 percentage of any charge made or received for the rendering of a service in connection with a 216 transaction involving a foreclosure upon a mortgage loan other than for services actually 217 performed. 218 (f) The Attorney General Division of Banks may adopt, amend or repeal rules and regulations to aid in the 219 administration and enforcement of this Section. (g) a violation of this Section shall be considered a violation of G.L. c. 93A. 220 SECTION 3. Section 14 of chapter 244 of the General Laws, as appearing in the 2010 Official 221 Edition, is hereby amended by replacing the existing section 14 with the following new Section: 222 Section 14. The mortgagee or person having his estate in the land mortgaged, or a person 223 authorized by the power of sale, or the attorney duly authorized by a writing under seal, or the 224 legal guardian or conservator of such mortgagee or person acting in the name of such mortgagee 225 or person, may, upon breach of condition and without action, do all the acts authorized or 226 required by the power; but no sale under such power shall be effectual to foreclose a mortgage, 227 unless, previous to such sale, notice thereof has been published once in each of 3 successive 228 weeks, the first publication to be not less than 21 days before the day of sale, in a newspaper, if 229 any, published in the town where the land lies or in a newspaper with general circulation in the 230 town where the land lies and notice thereof has been sent by registered mail to the owner or 231 owners of record of the equity of redemption as of 30 days prior to the date of sale, said notice to 232 be mailed by first class and certified mail at least 14 days prior to the date of sale to said owner 233 or owners to the address set forth in section 61 of chapter 185, if the land is then registered or, in 234 the case of unregistered land, to the last address of the owner or owners of the equity of 235 redemption appearing on the records of the holder of the mortgage, if any, or if none, to the 236 address of the owner or owners as given on his deed or on the petition for probate by which he 237 acquired title, if any, or if in either case no owner appears, then mailed by registered mail to the 238 address to which the tax collector last sent the tax bill for the mortgaged premises to be sold, or if 239 no tax bill has been sent for the last preceding three years, then mailed by registered mail to the 240 address of any of the parcels of property in the name of said owner of record which are to be sold 241 under the power of sale and unless a copy of said notice of sale has been sent by registered mail 242 to all persons of record as of 30 days prior to the date of sale holding an interest in the property 243 junior to the mortgage being foreclosed, said notice to be mailed at least 14 days prior to the date 244 of sale to each such person at the address of such person set forth in any document evidencing 245 the interest or to the last address of such person known to the mortgagee. Any person of record 246 as of thirty days prior to the date of sale holding an interest in the property junior to the mortgage 247 being foreclosed may waive at any time, whether prior or subsequent to the date of sale, the right 248 to receive notice by mail to such person under this section and such waiver shall be deemed to 249 constitute compliance with such notice requirement for all purposes. If no newspaper is 250 published in such town, or if there is no newspaper with general circulation in the town where 251 the land lies, notice may be published in a newspaper published in the county where the land lies, 252 and this provision shall be implied in every power of sale mortgage in which it is not expressly 253 set forth. A newspaper which by its title page purports to be printed or published in such town, 254 city or county, and having a circulation therein, shall be sufficient for the purpose. 255 The following form of foreclosure notice may be used and may be altered as circumstances 256 require; but nothing herein shall be construed to prevent the use of other forms which strictly comply with all the requirements of this chapter. 257 (Form.) 258 MORTGAGEE’S SALE OF REAL ESTATE. 259 By virtue and in execution of the Power of Sale contained in a certain mortgage given by............ 260 to............ dated............ and recorded with 261 ..... 262 Deeds, Book............, page............, of which mortgage the undersigned is the present 263 holder,............ 264 (If by assignment, or in any fiduciary capacity, give reference to the assignment(s) recorded with 265 .....Deeds, Book............, page............, of which mortgage the undersigned is the present 266 holder,.............) 267 for breach of the conditions of said mortgage and for the purpose of foreclosing the same will be 268 sold at Public Auction at............o’clock,............ M. on the............ day of............ A.D. (insert 269 year),............ (place)............ all and singular the premises described in said mortgage, 270 (In case of partial releases, state exceptions.) 271 To wit: “(Description as in the mortgage, including all references to title, restrictions, 272 encumbrances, etc., as made in the mortgage.)” 273 Terms of sale: (State here the amount, if any, to be paid in cash by the purchaser at the time and 274 place of the sale, and the time or times for payment of the balance or the whole as the case may 275 be.) 276 Other terms to be announced at the sale. 277 (Signed) 278 Present holder of said mortgage. 279 A notice of sale in the above form, published in accordance with the power in the mortgage and 280 with this chapter, together with such other or further notice, if any, as is required by the 281 mortgage, shall be a sufficient notice of the sale; and the premises shall be deemed to have been 282 sold, and the deed thereunder shall convey the premises, subject to and with the benefit of all 283 restrictions, easements, improvements, outstanding tax titles, municipal or other public taxes, 284 assessments, liens or claims in the nature of liens, and existing encumbrances of record created 285 prior to the mortgage, whether or not reference to such restrictions, easements, improvements, 286 liens or encumbrances is made in the deed; but no purchaser at the sale shall be bound to 287 complete the purchase if there are encumbrances, other than those named in the mortgage and 288 included in the notice of sale, which are not stated at the sale and included in the auctioneer’s 289 contract with the purchaser. 290 In the event a mortgagee holds a mortgage loan pursuant to an assignment, for purposes of this 291 section and section 21 of chapter 183, no notice pursuant to this section shall be valid unless (i) 292 at the time such notice is mailed, a valid assignment (or a valid chain of assignments) evidencing the 293 assignment of the mortgage loan from its origination to the foreclosing mortgagee has been duly recorded in the 294 appropriate registry of deeds or, for registered land, with the land court, and (ii) the recording 295 information for all recorded assignments is referenced in the notice of sale required in this 296 section. The notice shall not be defective if any holder within the chain of assignments either 297 changed its name or merged into another entity during the time it was the mortgage holder, 298 provided it is recited within the body of the notice the fact of any merger, consolidation, 299 amendment, conversion or acquisition of assets causing the change in name or identity, the 300 recital of which shall be conclusive in favor of any bona fide purchaser, mortgagee, lienholder or 301 encumbrancer of value relying in good faith thereon. 302 SECTION 4. Section 1 shall take effect on October 1, 2012 and apply to all mortgages of 303 residential property located in the commonwealth which secure a mortgage loan before, on or after the 304 effective date of this act. Said section 1 shall not apply to such mortgages accelerated or whose 305 statutory condition has been violated under the terms of the mortgage to secure the note prior to 306 the effective date of this act.