BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2347
                                                                  Page  1

          Date of Hearing:   May 3, 2010

                      ASSEMBLY COMMITTEE ON BANKING AND FINANCE
                                   Mike Eng, Chair
                    AB 2347 (Feuer) - As Amended:  April 20, 2010
           
          SUBJECT  :   Mortgage defaults: secondary public financing

           SUMMARY  :  Provides that if a property contains two or more  
          dwelling units and a public entity holds a deed of trust or is a  
          party to a recorded rent regulatory agreement on the property,  
          the public entity may, by written notice to the trustee,  
          postpone the sale date by no more than 60 days.

           EXISTING LAW  

          1)Regulates the non-judicial foreclosure process pursuant to the  
            power of sale contained within a mortgage contract, and  
            provides that in order to commence the process, a trustee,  
            mortgagee, or beneficiary must record a notice of default  
            (NOD) and allow three months to lapse before setting a date  
            for sale of the property. [Civil Code Section 2924, all  
            further references are to the Civil Code].

          2)Provides that the mortgagee, trustee or other person  
            authorized to make the sale must give notice of sale, and  
            requires notice of sale to be made, as specified, at least 20  
            days prior to the date of sale. [Section 2924f].

           FISCAL EFFECT  :  Unknown

           COMMENTS  :   

          According to the author, this bill is intended to mitigate the  
          impacts of the foreclosure crisis on the availability of  
          affordable housing in California.  When public agencies provided  
          financial assistance to multifamily properties in exchange for  
          securing some percentage of affordable housing unites, the  
          author states, those agencies should have an opportunity to  
          intervene by either purchasing the property or finding a  
          purchaser for the property that will preserve the affordable  
          units before the trustee concludes foreclosure proceedings.

          The author states that AB 2347 would help local governments  
          protect their investments in affordable rental housing,  








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          threatened by foreclosure, by providing 60 additional days  
          before an agency-assisted affordable development can be sold  
          through foreclosure.

          Supporters note that public agencies, typically city or county  
          housing departments, frequently provide financial assistance to  
          multifamily properties.  Deeds of trust and/or regulatory  
          agreements secure the loans and ensure that the properties  
          remain affordable to eligible families.  These affordability  
          agreements are usually subordinated to mortgages or similar  
          interests held by private lenders.  If the owner defaults on the  
          private loan and a foreclosure ensues, the public agency's  
          investment and affordability conditions are wiped out.   
          According to supporters, in the last three years in the City of  
          Los Angeles alone, 22 separate loans for multifamily  
          developments in the City's portfolio were threatened with  
          foreclosure.  If all these loans were wiped out, the City of Los  
          Angeles would lose approximately $23 million, and the  
          affordability restrictions on many affordable rental units.

          The author observes that a receiver is typically appointed to  
          evaluate and report on the property's operations and financial  
          condition in a foreclosure on a multifamily residence.  A public  
          agency with a subordinated interest in the property uses the  
          receiver's report to conduct an economic analysis.  This  
          analysis is the basis for a locality's action plan for the  
          property.  The local legislative body must review and approve  
          the best fiduciary course of action regardless of its threatened  
          investment and loss of housing.  

          The problem, supporters state, is that too often the report  
          arrives too late for the local government to utilize it for this  
          analysis.  The foreclosure process requires that a foreclosed  
          multi-family property be sold at a public auction.  In the  
          current process, government agencies that are the secondary loan  
          holder are not given ample time to approve the funds, make a  
          bid, cure a default or buy a distressed property to ensure that  
          it remains affordable.   

          In order to allow public agencies an appropriate opportunity to  
          obtain a meaningful receiver's report, determine a course of  
          action, and take steps to protect public investments, this bill  
          would allow public agencies to send a written notice to the  
          trustee to temporarily postpone a foreclosure sale for up to 60  
          days.  The postponement could only be exercised if: (1) the  








                                                                  AB 2347
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          public agency holds a trust deed or rent regulatory agreement on  
          the property; and (2) the property contains two or more units.

          AB 2347 would, supporters contend, ensure that local governments  
          have a fair opportunity to obtain the receiver's reports and  
          other assessments of the property - not just days before the  
          sale is scheduled, but in time to evaluate the information, and  
          decide whether to commit scarce financial resources to salvage  
          the long-term affordability of these valuable, rent-restricted  
          apartments.

           ARGUMENTS IN OPPOSITION  :  While the committee did not receive  
          any opposition letters on this bill, the Assembly Judiciary  
          Committee analysis noted the following opposition from the  
          California Land Title Association, contending as follows:
           
                If a public entity has a trust deed or rent regulatory  
               agreement on property they do not have the legal authority  
               to instruct the holder of a trust deed to postpone a  
               foreclosure sale.  This is because they do not have privity  
               of contract with the trustee and also are not a party to  
               the trust deed being foreclosed.  If a "public entity" has  
               a junior lien they can protect their interest like any  
               other junior by paying off the senior or bidding at the  
               foreclosure sale and are already being notified by the  
               trustee through the process established under existing law.

               Under existing law, a "public entity" that has a regulatory  
               agreement in a second deed of trust (or subsequent deed of  
               trust) unfortunately gets wiped out when a senior lien  
               forecloses.  If they want to protect their agreement they  
               can pay off the senior being foreclosed.  It is our  
               understanding that foreclosures are typically taking  
               several months which would seem to provide AMPLE time for a  
               public entity to become aware of a foreclosure that is  
               pending and to make a calculated decision on whether or not  
               to intervene.  If notification from a receiver is not being  
               done, then that process needs to be improved at the local  
               level or addressed through additional obligations place  
               upon receivers.

               As currently drafted, several terms are undefined and  
               create huge potential problems for consumers, title  
               companies, lenders, real estate professionals, and other  
               interested parties.  Specifically, from this one section  








                                                                  AB 2347
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               alone, the following terms are undefined: What is a "public  
               entity" under this bill and how would that be ascertained  
               and by whom?  Could a "public entity" notify an escrow  
               holder or title company at any time and still postpone the  
               sale even if the sale is just hours away?  What happens to  
               a consumer/bona fide purchaser who happens to purchase a  
               multi-family unit and is unaware that notification to a  
               "public entity" has not taken place?  Can the sale be set  
               aside and the postponement subsequently granted?  In other  
               words, what is the effect if the notification does not take  
               place and the public entity has not asked for a  
               postponement?

               If a consumer/investor isn't using a title company to  
               conduct a title search or facilitate a transfer of this  
               type of property, they are even more at risk and may not  
               have an underlying title insurance policy to protect them  
               if their sale is set aside, postponed, or delayed.

               A 60-day delay outlined in this bill may put at risk other  
               contingent financing or other transactions hinging on such  
               a sale, and may result in a total failure of a transaction  
               because of the timing of related contingencies.  In short,  
               a consumer purchasing this type of property may suffer  
               unintended monetary losses because they did not anticipate  
               such a delay.  This is even if they exercise due diligence  
               and conduct a thorough title search of recorded county  
               records.

               As indicated above, these new requirements would increase  
               the risk for buyer/consumers who would be wary of investing  
               in multifamily housing if such an investment has a higher  
               risk associated with it.  If the goal is to increase  
               available affordable housing of this kind, does it make  
               sense to increase the risk associated with such an  
               investment?  Shouldn't the legislation target requiring  
               receivers to provide more timely notice to local agencies?

           Amendments  :

          Committee staff is aware that the author's office has conducted  
          several meetings with interested parties to further narrow and  
          clarify this bill.  In the mean-time the committee may wish to  
          consider the following amendments.









                                                                  AB 2347
                                                                  Page  5

          1)Provide a definition of "public entity."  Committee staff  
            recommends the following:

                "Public entity" includes a county, city, city and county,  
          redevelopment agency or any   other political subdivision thereof.

           2)Clarify that a foreclosure stay may be requested only once by  
            one and that that the application is further limited to  
            properties with five or more dwelling units.  On Page 6,  
            starting with line 8, make the following changes.

               (d) If a property contains  two or more dwelling   five or  
            more multifamily  units and a public entity holds a deed of  
            trust or is a party to a recorded rent regulatory agreement on  
            the property, the public entity may, by written notice to the  
            trustee, postpone the sale date by no more
               than 60 days.
                         (i) if multiple public entities hold deeds of  
          trust, or are parties to a recorded rent   regulatory agreement on  
          the property pursuant to this subsection, only one entity may  
            postpone the sale date.
                      (ii) The power under this subsection to postpone the  
          sale date may be exercised only   once.
           
           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          None on file.

           Opposition 
           
          None on file.
           
          Analysis Prepared by  :    Mark Farouk / B. & F. / (916) 319-3081