Amendment S.2287 187th (2011 - 2012)

[Text of the Senate amendment (Ways and Means) to the House bill to prevent unlawful and unnecessary foreclosures (House, No. 4087)]

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REDRAFT Clerk #1

Foreclosure Mediation Program

Ms. Spilka moves to amend the bill (Senate Bill 2287) in SECTION 2 by striking out the words “2 sections”, in line 88, and inserting in place thereof the following:- “3 sections”.

And to amend said SECTION 2 by inserting at the end thereof the following new section:-  

Section 35D. (a) As used in this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:

“Borrower”, a mortgagor of a mortgage loan; provided that the term borrower shall also include any agent of a borrower.

"Creditor'', a person or entity that holds or controls, partially, wholly, indirectly, directly or in a nominee capacity, a mortgage loan securing a residential property, including, but not limited to, an originator, holder, investor, assignee, successor, trust, trustee, nominee holder, mortgage electronic registration system or mortgage servicer, including the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation. The term creditor shall also include any servant, employee or agent of a creditor.

“Mortgage loan”, a loan to a natural person made primarily for personal, family or
household purposes secured wholly or partially by a mortgage on residential property;

“Residential property”, real property located in the commonwealth on which there is a dwelling house with accommodations for 4 or fewer separate households and occupied, or to be occupied, in whole or in part by the obligor on the mortgage debt; provided, however, that residential property shall be limited to the principal residence of a person; provided, further, that residential property shall not include an investment property or residence other than a primary residence; and provided, further, that residential property shall not include residential property taken in whole or in part as collateral for a commercial loan.

(b) Any borrower of residential property located in the commonwealth shall have the option to enter into mediation proceedings with the creditor if the borrower defaults on a required mortgage loan payment as provided in such a mortgage loan or note secured by such residential property; provided however, that borrowers that have a certain mortgage loan, as defined in section 35B, shall not have the option to enter into mediation proceedings under this section. The borrower shall have the option to enter into a foreclosure mediation program prior to foreclosure proceedings only once during any 3 year period.

(c) A Foreclosure Mediation Program

(1) The the office of public collaboration at the University of Massachusetts at Boston under section 47 of chapter 75 shall administer a Foreclosure Mediation Program and shall, in consultation with the attorney general, establish policies and procedures to implement this section.  

(2) The office of public collaboration, subject to appropriation, shall ensure that all areas of the commonwealth have access to a foreclosure mediation program by expanding current approved community mediation programs in the commonwealth to provide mediation services or by training additional mediators.

(3) Subject to appropriation, the office of public collaboration shall, in consultation with the attorney general, create a program to train mediators in the Foreclosure Mediation Program in all necessary aspects of foreclosure law.

(d) Notice Provision and Requests for Mediation

When a borrower defaults on a mortgage loan payment and the creditor notifies the borrower of the right to cure a default of a required payment under Section 35A, the creditor shall give notice to the borrower of the Foreclosure Mediation Program by attaching to said right to cure a default notice: (1) A copy of the notice of the availability of foreclosure mediation, in such form as the office of public collaboration prescribes, and (2) a foreclosure mediation request form, in such form as the office of public collaboration prescribes.

A borrower may request foreclosure mediation by submitting the foreclosure mediation request form to the creditor not more than 15 days after receipt of the notice.  The creditor may grant a borrower permission to submit a foreclosure mediation request form after the 15 day period except that no foreclosure mediation request form may be submitted more than 30 days after receipt of the notice. 

(e) None of the borrower's or creditor's rights in the foreclosure action shall be waived by the borrower's submission of a foreclosure mediation request form to the creditor.

(f) Foreclosure Mediation Program Requirements

The office of public collaboration, subject to appropriation, shall ensure that each area of the commonwealth has the services of a foreclosure mediation program in actions to foreclose mortgages on residential property. Such foreclosure mediation shall (i) address all issues of foreclosure, including, but not limited to, reinstatement of the mortgage, assignment of sale date, restructure, change in terms of payment, reduction in principal or other modification of the mortgage debt, and (ii) be conducted by trained foreclosure mediators who (A) are approved by the office of public collaboration, including mediators for current approved community mediation programs in the commonwealth, (B) are trained in mediation and all relevant aspects of the foreclosure law, as determined by the office of public collaboration, (C) have knowledge of the community-based resources that are available in the area in which they serve, and (D) have knowledge of mortgage assistance programs. Such mediators may refer borrowers who participate in the foreclosure mediation program to community-based resources and to the mortgage assistance programs, when appropriate.

(g) The Mediation Period

(1) The mediation period shall commence when the creditor notifies that a foreclosure mediation request form has been submitted by the borrower, which notice shall be sent not later than 3 business days after the creditor receives a completed foreclosure mediation request form. The mediation period shall conclude not more than 50 days after receipt of notice from the creditor, except that the creditor and borrower may extend by not more than 10 days, or shorten, the mediation period on a written agreement.

(2) Upon receiving notice from the creditor that a foreclosure mediation request form was submitted, the Foreclosure Mediation Program shall refer the borrower and creditor to a trained foreclosure mediator not later than 3 business days after receiving said notification.   

(3) The first mediation session shall be held not later than 5 business days after the Foreclosure Mediation Program refers the borrower and creditor to a trained foreclosure mediator. The borrower and creditor shall appear in person at each mediation session and shall have authority to agree to a proposed settlement, except that if the creditor is represented by counsel, the creditor's counsel may appear in lieu of the creditor to represent the creditor's interests at the mediation, provided such counsel has the authority to agree to a proposed settlement and the creditor is available during the mediation session by telephone or electronic means.

(4) Not later than 5 days after the conclusion of the first mediation session, the mediator shall determine whether the borrower and creditor will benefit from further mediation. The mediator shall write a report setting forth such determination and mail a copy of such report to the borrower and creditor. If the mediator reports that the borrower and creditor will not benefit from further mediation, the mediation period shall terminate. If the mediator reports after the first mediation session that the parties may benefit from further mediation, the mediation period shall continue.

(5) If the mediator has submitted a report that the borrower and creditor may benefit from further mediation under this section, not more than 5 days after the conclusion of any additional mediation sessions, but no later than the termination of the mediation period set forth in clause (1) of this subsection, the mediator shall file a report with the borrower and creditor describing the proceedings and specifying the issues resolved, if any, and any issues not resolved pursuant to the mediation. The filing of the report shall terminate the mediation period. If issues have not been resolved pursuant to the mediation, the mediator may refer the borrower to any appropriate community-based services that are available, but any such referral shall not result in an extension of the mediation process.

(6) The office of public collaboration, in consultation with the attorney general, shall establish policies and procedures to implement this section. Such policies and procedures shall, at a minimum, provide that the mediator shall advise the borrower at the first mediation session that: (i) such mediation does not suspend the borrower's obligation to respond to the foreclosure action; and (ii) foreclosure by entry or action or foreclosure by sale may cause the borrower to lose the residential property to foreclosure.

(7) In no event shall any determination issued by a mediator under this program form the basis of an appeal of any foreclosure judgment.

(8) At any time during the mediation period, the mediator may refer the borrower to the mortgage assistance programs, except that any such referral shall not prevent a creditor from proceeding to judgment when the conditions specified in this section have been satisfied.

(h) Prior to publishing a notice of a foreclosure sale, as required by section 14, the creditor, or if the creditor is not a natural person, an officer or duly authorized agent of the creditor, shall certify compliance with this section in an affidavit based upon a review of the creditor’s business records and any mediation records. The creditor, or an officer or duly authorized agent of the creditor, shall record this affidavit with the registry of deeds for the county or district where the land lies.

(i) Nothing in this section shall require a creditor to modify a mortgage or change the terms of payment of a mortgage.

Clerk #2

Foreclosed Property Acquisition and Rehabilitation

Mr. Michael O. Moore and Ms. Chandler move to amend the bill (Senate, No. 2287) by inserting, after section ____, the following new section:-

"SECTION _____. Not later than 10 days after the start of fiscal year 2013, the comptroller shall transfer $9,000,000 from the General Fund to the Affordable Housing Trust Fund established by chapter 121D of the General Laws, and said funds shall be used by department of housing and community development as grants or loans for foreclosed property acquisition and rehabilitation, and related property inspection and improvements to local infrastructure that help promote neighborhood stabilization activities in areas that have high numbers of foreclosed and distressed properties, provided that loans and grants may be administered by the department through contracts with the Massachusetts Housing Partnership Fund established in section 35 of chapter 405 of the acts of 1985, as amended, and through the Neighborhood Stabilization Loan Fund, and provided further that notwithstanding section 3 of chapter 121D of the General Laws, the department may employ affordability restrictions consistent with federal Neighborhood Stabilization Program created pursuant to Division B, Title II of the Housing and Economic Recovery Act of 2008 and the American Recovery and Reinvestment Act of 2009."

Clerk #3

WITHDRAWN

Clerk #4

WITHDRAWN

Clerk #5

Providing for Clear Title

Ms. Creem moved that the bill (Senate Bill 2287) be amended, in section 2, by adding after the word “chapter”, in line 258, the following words:- and the arm’s-length third party purchaser for value relying on such affidavit shall not be liable for any failure of the foreclosing party to so comply and title to the real property thereby acquired shall not on account of such failure be set aside.

Clerk #6

Preventing Unnecessary Vacancies

Mr. Eldridge, Ms. Donoghue, Ms. Chang-Díaz and Mr. McGee move to amend the bill (Senate bill 2287) by inserting at the end thereof the following new section:-

SECTION X.  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.

Clerk #7

In-Person Counseling

Mr. Joyce moves to amend the bill (Senate, No. 2287) by inserting after section 4 the following section:-
“Section __. Section 13 of chapter 258 of the acts of 2010, as so appearing, is hereby amended by striking out the figure “2012” and inserting in place thereof the following figure: - 2014.”

Clerk #8

 WITHDRAWN

Clerk #9

Good Faith Requirements

Mr. Welch moves to amend the bill (Senate, No. 2287) in section 2 by striking out proposed clause (b)(2)(iv) of section 35B of chapter 244 of the General Laws and inserting in place thereof the following clause:-

(iv) either (A) in all circumstances where the net present value of the modified mortgage loan exceeds the anticipated net recovery at foreclosure, agrees to modify the loan in a manner that provides for the affordable monthly payment; (B) in circumstances where the net present value of the modified mortgage loan is less than the anticipated net recovery of the foreclosure but does meet the borrower’s affordable monthly payment, agrees to modify the loan in a manner that provides for the affordable monthly payment; or (C) in circumstances where the net present value of the modified mortgage loan is less than the anticipated net recovery of the foreclosure and does not meet the borrower’s affordable monthly payment, notifies the borrower that no modified mortgage loan will be offered and provides a written summary of the creditor’s net present value analysis and the borrower’s current ability to make monthly payments, after which the creditor may proceed with the foreclosure process in conformity with this chapter.

Clerk #10

Certain Mortgage Loan Defintion

Messrs. Tarr and Knapik move to amend the bill (Senate, No. 2287) in SECTION 2 by striking out, in line 125, clause (v), and inserting in place thereof the following:-

(v)“ or a similar loss mitigation program approved by a federal banking agency or the Consumer Financial Protection Bureau, or in accordance with the loss mitigation provisions contained in the national mortgage settlement filed with the District Court of the District of Columbia on April 4, 2012.”

Clerk #11

Definition of Modified Mortgage Loan

Mr. Timilty moves to amend the bill (S. 2287) in line 125 by inserting after the word “plan” the following:-
“(vi) a similar loss mitigation program approved by a federal banking agency or the Consumer Financial Protection Bureau, or in accordance with the loss mitigation provisions contained in the national mortgage settlement filed with the District Court of the District of Columbia on April 4, 2012.”

Clerk #12

Creditor’s Representative

Mr. Keenan moves to amend the bill, S 2287,  in Section 2, by striking out the definition of “creditor’s representative” and inserting in place thereof the following language:-
“Creditor’s Representative”, a person who has the authority to negotiate and approve the terms of and modify a mortgage loan, under a servicing agreement, provided further that the mortgage servicer shall assign no more than 2 people as representative relative to a specific mortgage.

Clerk #13

Online Tracking

Mr. Keenan moves that the bill, S2287, be amended in Section 2 by adding the following language:-

“(i) The division of banks shall adopt regulations requiring mortgage brokers or mortgage servicers to create, operate and maintain secure websites that allow mortgagees, borrowers, or those who have applied for mortgages or mortgage modifications to monitor the status of their mortgage or mortgage modification applications. The websites shall allow mortgagees, borrowers, or those who have applied for mortgages or mortgage modifications to securely submit any and all required documentation online. The websites shall provide unique confirmation tracking numbers for any documentation submitted online.

Clerk #14

Mediation Preference

Mr. Tarr moves to amend the bill (Senate, No. 2287) by inserting after the word “foreclosure” in line 203, the following words:- “(iv) the borrower’s preference of potentially entering into a mediation process with the creditor; provided, however, that the borrower acknowledges the borrower may be subject to some of the costs of mediation”.

Clerk #15

Mediation Study

Mr. Tarr moves to amend the bill (Senate, No. 2287) by inserting, after Section__, the following new Section:-

“The Attorney General, in consultation with the Division of Banks and the Trial Court, shall study the feasibility of requiring mediation as a means of foreclosure prevention.  The results of this study, along with any recommendations for legislative action, shall be filed with the clerk of the house of representatives and the clerk of the senate within 180 days of the passage of this act.”

Clerk #16

Right to Cure

Messrs. Tarr and Knapik move to amend the bill (Senate, Number 2287) by inserting, after SECTION 2, the following new section:-
SECTION 2A.  Chapter 244 of the General Laws is hereby amended by striking subsections (b), (d) and (e) of section 35A and inserting in place thereof the following new subsections:-
(b) A mortgagor of residential property shall have a 90-day right to cure a default of a required payment as provided in the residential mortgage or note secured by the residential property by full payment of all amounts that are due without acceleration of the maturity of the unpaid balance of the mortgage; provided, however, that if, no more than 30 days following receipt of the notice as provided for in subsection (e), a borrower notifies a creditor of the borrower’s intent to (i) cure the default, (ii) pursue a loan modification, (iii) pursue an alternative to foreclosure, including short sale or deed in lieu, the borrower’s right to cure shall be extended automatically to 150 days from the date the notice was delivered.  A borrower may also contact the creditor to waive the right to extend the right to cure period and voluntarily agree to vacate the property by agreement between the creditor and the borrower.  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.  A borrower who fails to respond within 30 days to the notice provided for under subsection (e) 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.
(d) The mortgagee, or anyone holding thereunder, shall not accelerate maturity of the unpaid balance of such mortgage obligation or otherwise enforce the mortgage because of a default consisting of the mortgagor’s failure to make any such payment in subsection (b) by any method authorized by this chapter or any other law until at least 90 days after the date a written notice is given by the mortgagee to the mortgagor; provided, however, that in the event a borrower notifies a creditor of the borrower’s intent to (i) cure the default, (ii) pursue a loan modification, (iii) pursue an alternative to foreclosure, including short sale or deed in lieu, or (iv) waive the right to extend the 90 day right to cure period and voluntarily agree to vacate the property by agreement between the creditor and the borrower, no mortgagee or anyone holding thereunder shall accelerate maturity of the unpaid balance of such mortgage obligation or otherwise enforce the mortgage because of a default consisting of the mortgagor’s failure to make any such payment in subsection (b) by any method authorized by this chapter or any other law until at least 151 days after the date a written notice is given by the creditor to the mortgagor. Said notice shall be deemed to be delivered to the mortgagor: (i) when delivered by hand to the mortgagor; or (ii) 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.
(e) The notice required in subsection (d) shall inform the mortgagor of the following:—
(1) the nature of the default claimed on such mortgage of residential real property and of the mortgagor’s right to cure the default by paying the sum of money required to cure the default;
(2) the date by which the mortgagor shall cure the default to avoid acceleration, a foreclosure or other action to seize the home, which date shall not be less than 90 days after service of the notice and the name, address and local or toll free telephone number of a person to whom the payment or tender shall be made;
(3) that the borrower has the right, within 30 days following receipt of the notice, to notify a creditor in writing of the borrower’s intent to pursue (i) a loan modification or (ii) an alternative to foreclosure, including short sale or deed in lieu, in which case the right to cure period shall be extended automatically to 150 days from the date the notice was delivered, or to waive the right to extend the 90 day cure period and voluntarily agree to vacate the property by agreement between the creditor and the borrower.  Failure to respond within 30 days to the notice subjects the borrower to a right-to-cure period lasting 90 days.  The creditor shall include in its notice an address to which the borrower’s response under this subsection must be sent;
(4) that, if the mortgagor does not cure the default by the date specified, the mortgagee, or anyone holding thereunder, may take steps to terminate the mortgagor’s ownership in the property by a foreclosure proceeding or other action to seize the home;
(5) the name and address of the mortgagee, or anyone holding thereunder, and the telephone number of a representative of the mortgagee whom the mortgagor may contact if the mortgagor disagrees with the mortgagee’s assertion that a default has occurred or the correctness of the mortgagee’s calculation of the amount required to cure the default;
(6) the mailing address of the mortgagee to which the borrower must send any written response as required under paragraph (3);
(7) the name of any current and former mortgage broker or mortgage loan originator for such mortgage or note securing the residential property;
(8) that the mortgagor may be eligible for assistance from the Homeownership Preservation Foundation or other foreclosure counseling agency, and the local or toll free telephone numbers the mortgagor may call to request this assistance;
(9) that the mortgagor may sell the property prior to the foreclosure sale and use the proceeds to pay off the mortgage;
(10) that the mortgagor may redeem the property by paying the total amount due, prior to the foreclosure sale;
(11) that the mortgagor may be evicted from the home after a foreclosure sale; and
(12) the mortgagor may have the following additional rights, depending on the terms of the residential mortgage: (i) to refinance the obligation by obtaining a loan which would fully repay the residential mortgage debtor; and (ii) to voluntarily grant a deed to the residential mortgage lender in lieu of foreclosure.
The notice shall also include a declaration, in the language the creditor has regularly used in its communication with the borrower, appearing on the first page of the notice stating: “This is an important notice concerning your right to live in your home. Have it translated at once.”
The division of banks shall adopt regulations in accordance with this subsection.

Clerk #17

Cost Transparency

Mr. Keenan moves that the bill, S 2287, be amended in Section 2 by inserting, after the words “exceeds 45 years” as found in line 171, the following language:- “ provided that the creditor shall have provided to the borrower during a good faith estimate detailing the actual costs of all principal and interest to be paid under said modification compared to the actual costs of all principal and interest to be paid under the existing mortgage;”

Clerk #18

Recording Interests in Foreclosed Mortgages

Mr. Keenan moves that Section 1 of the bill, S2287, be amended by inserting, after the words “on such recital” as found in line 86, the following language:- “For the purposes of this section, mortgagee shall be defined as the entity that holds the note or other obligation secured by the mortgage, in addition to the holder of record of the mortgage.”

Clerk #19

Foreclosure Technical Amendment

Ms. Clark moves to the amend the bill, Senate No. 2287, in Section 14, by inserting, in line 77, after the words “notice is mailed,” the following words:- “a valid affidavit,”;
and by striking out, in lines 80-86, the following:- “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, that recited within the body of the notice is 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 on such recital.”;
and by striking out, in lines 91-93, the following definition:- " 'Affordable monthly payment', a borrower's ability to make monthly payments on a mortgage loan, taking into account the borrower's current circumstances, including verifiable income, assets and obligations.";
and by striking out, in lines 123-124, the following words:- "the division of banks or any other instrumentality of the commonwealth,", and inserting in line 125, after the words "federal loan modification plan.", the following sentence:- “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.”;
and by striking out, in lines 142-143, after the word “receivership” the following words:- “or proceedings in United States bankruptcy court.”;
and by striking out, in lines 144 and 163, the words “publish notice of a foreclosure sale, as required by section 14”, and inserting in place thereof the following words:- “commence foreclosure”;
and by striking out, in lines 147-148, after the words “has considered:” the following:- “(i) an assessment of the borrower’s ability to make an affordable monthly payment,” , and inserting in place thereof the following:- “(i) an assessment of the borrower’s current circumstances including, without limitation, the borrower’s current income, total debts and obligations;” ;

and by striking out, in lines 165-166, the following:- “(i) determines a borrower’s current ability to make an affordable monthly payment;” , and inserting in place thereof the following:- “(i) determines a borrower’s current ability to make monthly payments, reasonably taking into account the borrower’s current circumstances including income, debts and obligations;” ;

and by inserting, in line 180, after the words “federal loan modification plan;” the following sentence:- “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.”;

and by striking out, in line 185, after the word “foreclosure” the following:- “or does not meet the borrower’s affordable monthly payment,” ; and by striking out, in line 187, after the word “analysis” the following:- “and the borrower’s current ability to make monthly payments,” ;

and by inserting, in line 191, after the word “loan” the following four paragraphs:-

“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 30 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 30 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.’ ” ;

and by striking out, in lines 202-203, the following:- “or (iv) the borrower’s intent to waive the right to cure period and proceed to foreclosure.” ;

and by striking out, in lines 204-205, the following:- “provided for in this section shall” ; and inserting in place thereof the following:- “except for good cause” ;

and by striking out, in lines 222-223 and 233-234, the following:- “waive the borrower’s rights as provided by this section and proceed to foreclosure.” ; and inserting in place thereof the following:- “end the loan modification process.” ;

and by inserting, in line 224, after the words “shall include” the following words:- “reasonable and applicable” ;

and by striking out, in lines 248, the following:- “publishing a notice of a foreclosure sale, as required by section 14," ; and inserting in place thereof the following:- “commencing foreclosure,” ;

and by inserting, in line 252, after the words “this affidavit” the following words:- “concurrent with the filing in the Land Court under the Servicemembers Civil Relief Act”;
and by striking out, in lines 253-262, the following paragraph from section (f):- “the affidavit certifying compliance” through “purchaser’s heirs, successors and assigns.” ;

and by striking out, in lines 270-273, after the words “under subsection (c)” the following:- “; provided, that, such regulations may include requirements for reasonable steps and good faith efforts of the creditor to avoid foreclosure and safe harbors for compliance in addition to those under this section. The division of banks shall make any available net present value models accessible to all creditors.” ;

and by striking, in line 292, after the word “not” the following words:- “publish notice of foreclosure, under section 14”; and inserting in place thereof the following words:- “commence foreclosure";

and by striking, in lines 334-337, after the words "said chapter 244" the following:- "provided, that, such regulations may include requirements for reasonable steps and good faith efforts of the creditor to avoid foreclosure and safe harbors for compliance in addition to those under said section 35B of said chapter 244.”

Clerk #20

Technical Improvements

Messrs. Tarr and Knapik move to amendment the bill (Senate, No.2287) by inserting, in line 93, after the word “and” the following words:- “monthly housing”; and

by striking out, in line 97, the word “with” and inserting in place thereof the following words:- “, the original terms of which had”; and

by striking out, in line 99, the following words:- “for any period of time”; and

by striking out, in line 102, in subsection (iv), the following word:- “full”; and

by striking out, in lines 107-110, the following: “provided, however that a loan shall be a certain mortgage loan if, after the performance of reasonable due diligence, a creditor is unable to determine whether the loan has 1 or more of the loan features in clause (i) through (vii), inclusive” and by inserting in place thereof the following: “; provided, however that loans refinanced under the federal Home Affordable Refinance Program shall not be certain mortgage loans.”; and

by striking out, in line 125, (v) a similar federal loan modification plan.”, and inserting in place thereof the following:- “(v) a similar loss mitigation program approved by a federal banking agency or the Consumer Financial Protection Bureau, or in accordance with the loss mitigation provisions contained in the national mortgage settlement filed with the District Court of the District of Columbia on April 4, 2012.”; and

by inserting, after line 125,  the following new definition:

“Modified mortgage loan offer”, an offer by a creditor to a borrower to permanently or, on a trial basis, modify a mortgage from its original terms pursuant to this section.”; and

by inserting, in line 134, after the word “loan”, the following words: “; provided, however, that the division of banks shall make any available net present value models accessible to all creditors.”; and

by inserting, in line 182, after the words “the loan”, the following words: “or offer a trial modification”; and

by striking out, in lines 258-261, the following sentence: “The filing of such affidavit shall not relieve the affiant, or other person on whose behalf the affidavit is executed, from liability for failure to comply with this section, including by reason of any statement in the affidavit.” and

by striking out subsection (g) of the proposed section 35B of chapter 244; and

by striking out SECTIONS 5, 6 and 7 and insert in place thereof the following section:

SECTION 5:  Section 2 shall take effect on October 1, 2012 and apply to all mortgages of residential real property located in the commonwealth consisting of a dwelling house with accommodations for 4 or less separate households and occupied in whole or in part by the mortgagor and which secures a loan before, on or after the effective date of this act.

Said Section 2 shall not apply to such mortgages accelerated or whose statutory condition has been voided under the terms of the mortgage to secure the note, prior to the effective date of this act; provided further, that Section 2 shall expire on December 31, 2015.”

Clerk #21

Modification Fees

Mr. Keenan moves that the bill, S 2287, be amended in Section 2 by striking subsection (h) in its entirety and inserting in place thereof the following:-

“(h) The division of banks shall adopt, amend or repeal regulations to aid in the administration and enforcement of this section, including the minimum requirements which constitute a good faith effort by the borrower to respond to the notice required under subsection (c), and limits fees that can be charged by creditors as part of the modification process; provided, that, such regulations may include requirements for reasonable steps and good faith efforts of the creditor to avoid foreclosure and safe harbors for compliance in addition to those under this section. The division of banks shall make any available net present value models accessible to all creditors.

Clerk #22

Recording Mortgage Assignments

            Mr. Keenan moves that the bill, S 2287, be amended by inserting a new section:-
            SECTION XX: Section 6D of Chapter 183 of the Massachusetts General Laws is hereby amended by adding the following paragraph:-
            Each assignment of mortgage secured by residential property, as defined in said Section 1 of Chapter 255E, shall be forwarded within 30 days of the date of execution of said assignment to the appropriate registry district for recording.

Clerk #23

Corrective Amendment

Mr. Brewer moves to amend the bill (Senate, No. 2287) by striking out, in lines 191 and 193, each time it appears, the word “mortgagor” and inserting in place thereof the following word:- “borrower”; and

by striking out, in line 193, the word “mortgagor’s” and inserting in place thereof the following word:- “borrower’s”.