BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                  SB 1275|
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                                 THIRD READING


          Bill No:  SB 1275
          Author:   Leno (D), et al
          Amended:  5/27/10
          Vote:     21

           
           SENATE BANKING, FINANCE, AND INS. COMMITTEE  :  7-2, 4/7/10
          AYES:  Calderon, Florez, Kehoe, Liu, Lowenthal, Padilla,  
            Price
          NOES:  Cogdill, Runner
          NO VOTE RECORDED:  Correa, Cox, Vacancy

           SENATE JUDICIARY COMMITTEE  :  3-1, 4/20/10
          AYES:  Corbett, Hancock, Leno
          NOES:  Harman
          NO VOTE RECORDED:  Walters

           SENATE APPROPRIATIONS COMMITTEE  :  6-4, 5/24/10
          AYES:  Kehoe, Alquist, Corbett, Leno, Wolk, Yee
          NOES:  Cox, Denham, Walters, Wyland
          NO VOTE RECORDED:  Price


           SUBJECT :    Mortgage foreclosure relief

           SOURCE  :     Author


           DIGEST  :    This bill requires a mortgagee, trustee,  
          beneficiary, or authorized agent, before recording a Notice  
          of Default on a loan covered by the bill, to comply with  
          the bills provisions, as specified, which require (1)  
          written communication and statutory notice, (2) contact and  
                                                           CONTINUED





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          borrower outreach, (3) a declaration of compliance, and (4)  
          a denial explanation letter.  This bill sunsets on January  
          1, 2013.

           Senate Floor Amendments  of 5/27/10 describe procedures that  
          must be followed by mortgage loan servicers before  
          proceeding to foreclosure.

           ANALYSIS  :    Existing law regulates the nonjudicial  
          foreclosure of properties pursuant to the power of sale  
          contained within a mortgage contract.  To commence the  
          process, existing law requires the trustee, mortgagee, or  
          beneficiary to record a Notice of Default (NOD) and allow  
          three months to lapse before setting a date for sale of the  
          property.  Existing law requires a notice of nonjudicial  
          foreclosure sale to be officially noticed in a newspaper of  
          general circulation, posted on the property, and recorded  
          at least 20 days before the sale date.  

          Existing law, pursuant to SB 1137 (Perata, Corbett,  
          Machado), Chapter 69, Statutes of 2008, provides the  
          following: 

          1. A mortgagee, trustee, beneficiary, or authorized agent  
             may not file a NOD until 30 days after the mortgagee,  
             beneficiary, or authorized agent contacts the borrower  
             in person or by telephone to assess the borrower's  
             financial situation and explore options for the borrower  
             to avoid foreclosure or 30 days after the mortgagee,  
             beneficiary, or authorized agent has tried with due  
             diligence, as defined, to contact the borrower.  

          2. A NOD must include a declaration that the mortgagee,  
             beneficiary, or authorized agent has contacted the  
             borrower, has tried with due diligence to contact the  
             borrower, or that no contact was required because the  
             borrower has filed for bankruptcy, surrendered the  
             property, or contracted with an entity to extend the  
             foreclosure process.

          3. "Due diligence" is defined to require that the  
             mortgagee, beneficiary, or authorized agent send a  
             first-class letter to the borrower and then call the  
             borrower at least three times at different hours and on  







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             different days.  If the borrower does not respond within  
             two weeks after the phone calls have been made, the  
             mortgagee, beneficiary, or authorized agent must send a  
             certified letter, return receipt requested. 

          4. The above-described provisions sunset on January 1,  
             2013, and apply only to loans originated between January  
             1, 2003 and December 31, 2007, which are secured by  
             owner-occupied residential real property containing no  
             more than four dwelling units. 

          This bill, until January 1, 2013, extends the requirements  
          of SB 1137 for owner-occupied residential real property  
          containing no more than four dwelling units to mortgages or  
          deeds of trust recorded prior to January 1, 2009, if the  
          loans are required to be reviewed under federal Home  
          Affordable Modification Program (HAMP) guidelines, or  
          between 
          January 1, 2003, and January 1, 2009, if the loans are not  
          required to be reviewed under HAMP guidelines. 

          This bill:

          1. Applies different sets of provisions to different types  
             of mortgage loan servicers, as follows:  

             A.    Mortgage loan servicers who are required to review  
                loans pursuant to HAMP ("HAMP servicers" for purposes  
                of this analysis) would be subject to one set of  
                requirements, with respect to mortgages and deeds of  
                trust recorded prior to January 1, 2009, which are  
                secured by single-family, owner-occupied, residential  
                real property.

             B.    Mortgage loan servicers who are not required to  
                review loans pursuant to HAMP ("non-HAMP servicers"  
                for purposes of this analysis) would be subject to a  
                different set of requirements, with respect to  
                mortgages and deeds of trust recorded from January 1,  
                2003 through December 31, 2008.

          2. Requires HAMP servicers to do the following four things,  
             in addition to what they are required to do pursuant to  
             HAMP guidelines and directives:







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             A.    Before recording a NOD on a loan covered by the  
                bill, provide a specified notice to borrowers,  
                describing the nonjudicial foreclosure process,  
                informing them of their foreclosure-related rights,  
                and explaining potential foreclosure avoidance  
                options.  This notice would have to be made available  
                by an unnamed state government entity, in English and  
                each of the five foreign languages listed in Section  
                1632 of the Civil Code (Spanish, Tagalog, Korean,  
                Vietnamese, and Chinese).

             B.    Within 10 business days following a decision to  
                deny a borrower's application for a mortgage loan  
                modification, mail a denial explanation letter to the  
                borrower.  Although HAMP guidelines and directives  
                require servicers to mail a denial explanation letter  
                to borrowers who have not been approved for a HAMP  
                mortgage loan modification, this bill's requirements  
                related to the denial explanation letter go beyond  
                HAMP in three ways:

                (1)      Several of the inputs used by the servicer  
                   to calculate the net present value of modification  
                   versus foreclosure must be automatically provided  
                   to the borrower in the denial explanation letter,  
                   rather than provided only upon request by the  
                   borrower.

                (2)      Three additional items must be provided to  
                   the borrower in the letter of denial:  the name  
                   and contact information for the holder of the  
                   mortgage note, the date a completed application  
                   was received from the borrower, and the date the  
                   borrower's application for a loan modification was  
                   denied.

                (3)      If the servicer's communications with the  
                   borrower have been primarily in one of the five  
                   foreign languages specified in Section 1632 of the  
                   Civil Code, the denial explanation letter must be  
                   translated into that foreign language.

             C.    Concurrent with recording a NOD on any type of  







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                loan (whether single-family residential, multi-family  
                residential, or commercial), record a Declaration of  
                Compliance.  The Declaration of Compliance is a  
                "check the box" document, which asks the servicer or  
                its agent to identify which of several specific  
                provisions of law apply to the loan, which of several  
                specific provisions of law were followed in  
                connection with the loan, and which of several  
                specific options the borrower elected, with respect  
                to requesting a loan modification.  The Declaration  
                of Compliance must be signed by an individual having  
                personal knowledge of the information it contains, or  
                by an individual with authority to bind the mortgage  
                servicer, who certifies that the declaration is based  
                on records made in the regular course of the  
                servicer's business.

             D.    For purposes of completing the declaration of  
                compliance, compile a record of the dates and times  
                of, and addresses and telephone numbers used for  
                attempts to contact the borrower.  Servicers are  
                required to make this record available to a borrower  
                within ten business days, if requested by the  
                borrower in writing after a NOD has been recorded.

          3. Requires Non-HAMP servicers to do each of the things  
             described in #2A, 2B, 2C, and 2D above, and additionally  
             requires compliance with a series of requirements  
             related to borrower outreach, contact, and  
             communication.  These requirements reflect a combination  
             of enhancements to the contact requirements contained in  
             SB 1137, plus some actions required under HAMP, plus  
             some changes to HAMP requirements, which the bill's key  
             proponents believe to be improvements over HAMP rules  
             and procedures.  The timing of some of the requirements  
             on non-HAMP servicers is different than the timing  
             required of HAMP servicers.

          4. Provides the following remedies to borrowers whose  
             servicer fails to record a completed Declaration of  
             Compliance, submits a false Declaration of Compliance,  
             or fails to send a denial explanation letter that  
             materially complies with specified provisions of the  
             bill.  The remedies would only become available after  







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             the borrower's property has been foreclosed upon  
             nonjudicially:  

             A.    If the property is sold to a bona fide purchaser  
                at the trustee sale (i.e., sold to a third party that  
                is not the foreclosing financial institution), the  
                borrower may recover the greater of treble actual  
                damages or statutory damages of $10,000.

             B.    If the property is taken back by the foreclosing  
                financial institution at the trustee sale but is  
                later sold by that institution to a bona fide  
                purchaser, the borrower may recover the greater of  
                treble actual damages or statutory damages of  
                $10,000.  However, if the borrower establishes that  
                the servicer had notice of the borrower's claim under  
                the provisions of the bill before selling the  
                property to that bona fide purchaser, the borrower is  
                additionally entitled to recover statutory damages of  
                $15,000.

             C.    If the property is taken back by the foreclosing  
                financial institution at the trustee sale and not  
                subsequently sold to a bona fide purchaser, the  
                borrower may bring an action to void the foreclosure  
                sale.

             D.    In addition to the remedies available under #4A,  
                4B, or 4C above, the borrower would be entitled to  
                recover between $1,500 and $10,000 in statutory  
                damages, if the servicer failed to mail the  
                translated notice informing borrowers of their  
                foreclosure-related rights or failed to materially  
                comply with the loan modification review process  
                requirements of the bill.

             E.    Not authorize a cause of action for any failure or  
                error that is technical or de minimis in nature.

          5. Provides an express exemption from its requirements, in  
             cases where a borrower has already surrendered the  
             property, contracted with an organization or other  
             entity that advises borrowers on how to "game" the  
             foreclosure process, or filed for a bankruptcy that is  







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             still before a court.

          6. Sunsets on January 1, 2013.

           FISCAL EFFECT :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  No

          According to the Senate Appropriations Committee:

                          Fiscal Impact (in thousands)

             Major Provisions                2010-11     2011-12     
             2012-13               Fund  

            DFI auditing/reviews          $62       $121       
            $62Special*
            DOC                  
            ----------------unknown--------------                    Special**
            DRE                  
            ------------------minor----------------                  Special***

            *  Department of Financial Institutions Fund
            ** Department of Corporations Fund
              ***Department of Real Estate Fund

           SUPPORT  :   (Verified  5/25/10)

          Affordable Housing Services
          Alliance of Californians for Community Empowerment
          California Alliance for Retired Americans
          California Capital Financial Development Corporation
          California Coalition for Rural Housing
          California Conference Board of the Amalgamated Transit  
          Union
          California Conference of Machinists
          California Human Development Corporation
          California Labor Federation
          California Reinvestment Coalition
          Causa Justa: Just Cause
          Center for Responsible Lending
          City of Lakewood
          Coalition for Quality Credit Counseling
          Community Financial Resources
          Community Housing Works, San Diego







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          Consumer Federation of California
          Consumer Legal Services in East Palo Alto
          Consumers Union
          Contra Costa Interfaith Supporting Community Organization
          Council on Aging Silicon Valley
          East LA Community Corporation
          East Palo Alto Council of Tenants Education Fund
          Engineers and Scientists of California, IFPTE Local 20
          Housing and Economics Rights Advocates
          Inland Fair Housing and Mediation Board
          International Longshore and Warehouse Union
          JOLT, Coalition for Responsible Investing
          Law Foundation of Silicon Valley
          National Council of La Raza
          Neighborhood Housing Services of Orange County
          Novadebt
          Oakland Community Organizations
          Opportunity Fund
          Orange County Fair Housing Council, Inc.
          Professional and Technical Engineers, IFPTE Local 21
          Public Counsel
          Rural Community Assistance Corporation
          Sacramento Gray Panthers
          Sacramento Housing Alliance
          Sacramento Mutual Housing Association
          Southern California Housing Rights Center
          The Mission Economic Development Agency
          United Food & Commercial Workers Western States Council
          UNITE-HERE
          Vallejo Neighborhood Housing Services, Inc.
          Vermont Slauson Economic Development Corp.
          Yolo Mutual Housing Association

           OPPOSITION  :    (Verified  5/25/10)

          American Council of Engineering Companies of California
          California Bankers Association
          California Building Industry Association
          California Chamber of Commerce
          California Credit Union League
          California Financial Services Association
          California Independent Bankers
          California Land Title Association
          California Mortgage Association







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          California Mortgage Bankers Association
          Civil Justice Association of California
          Securities Industry and Financial Markets Association
          United Trustees Association

           ARGUMENTS IN SUPPORT  :    The author writes:

            "? delinquencies and foreclosures in California continue  
            to increase - and appear likely to increase into the  
            foreseeable future.  Meanwhile, data shows that the rate  
            of permanent loan modifications offered to borrowers has  
            lagged in comparison.  The California non-governmental  
            agencies providing housing counseling services have seen  
            many cases in which foreclosures are initiated and/or  
            homes sold in foreclosure while a borrower is still under  
            review for a loan modification - or even while a borrower  
            is making payments on a trial modification plan.  ? 

            "Borrowers and housing counselors throughout the State  
            report that they regularly face seemingly insurmountable  
            obstacles when they contact loan servicers for  
            assistance.  These include delays of many months to over  
            a year in processing applications; financial and other  
            documentation lost by the servicer; repeated requests  
            from the servicer for the borrower to send in additional  
            documentation or to send in the same documentation over  
            and over again; miscalculations or misreading of borrower  
            income leading to mistaken denials; misapplication and  
            misrepresentation of investor guidelines and restrictions  
            leading to mistaken denials; inconsistent, inaccurate and  
            contradictory information provided to borrowers about  
            their rights and obligations; foreclosures conducted  
            while a modification application is pending (or while a  
            trial plan is in effect) because the servicer failed to  
            instruct the foreclosure trustee to postpone the sale;  
            and unnecessary foreclosures conducted after an erroneous  
            denial.

            "In the vast majority of cases, borrowers and their  
            advocates are confronted with an overwhelming lack of  
            information and communication from the servicer - about  
            the status of their applications, the documentation they  
            need to provide, and, in the event a borrower is notified  
            that an application has been denied, about the reasons  







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            for the denial.  This lack of transparency makes it  
            nearly impossible for borrowers to figure out where they  
            are in the review process or to assess whether a denial  
            is erroneous and to seek reconsideration of a qualifying  
            application.  Because borrowers often arrive at their  
            foreclosure sale date without receiving a decision on a  
            pending modification application, this lack of  
            transparency also denies borrowers the opportunity to  
            explore alternatives to foreclosure if they do not in  
            fact qualify for a modification."

           ARGUMENTS IN OPPOSITION  :    Opponents of SB 1137 state:

            "While we believe that SB 1137 was a sound product,  
            certain provisions have resulted in class action  
            litigation.  Some of those provisions that are subject to  
            lawsuit are being amended by SB 1275, which we believe  
            would inappropriately intervene in pending litigation.   
            While we endeavor to understand the intricacies of this  
            measure and its impact, we argue that that the bill  
            exemplifies an overly complicated formula that will be  
            layered on to recently enacted borrower outreach efforts  
            to further frustrate and prolong existing foreclosure and  
            loss mitigation efforts.  We believe the measure will  
            result in adding to the complexity of navigating these  
            processes for loan servicers to create a series of  
            procedural traps that will lead to ever increasing  
            litigation.  How this measure interacts mechanically and  
            chronologically with recent state and federal regulatory  
            and statutory changes is unclear.  This will result in  
            compliance hurdles and a detrimental distraction from our  
            efforts to assist our customers.

            "Changes at the federal level are frequent and swift and  
            make this measure unnecessary.  To further illustrate  
            this point, President Obama's and the United States  
            Treasury Department's Home Affordable Modification  
            Program (HAMP) has continued to evolve.  In November  
            2009, Treasury released Supplemental Directive 09-08  
            requiring participating servicers to provide borrowers  
            with a non-approval notice if they are denied for a trial  
            period plan or official HAMP modification (effective on  
            January 1, 2010).  This disclosure provides detailed  
            information as to why the borrower was not eligible for a  







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            HAMP modification.  

            "On March 24, 2010, Treasury released Supplemental  
            Directive 10-02.  This directive precludes a servicer  
            from foreclosing on a borrower until the borrower has  
            been evaluated and eligibility has been determined under  
            HAMP.  The directive also includes a foreclosure process  
            explanation letter to be sent to borrowers detailing the  
            HAMP eligibility consideration process and advising  
            borrowers to pay attention to foreclosure notices.  This  
            directive is effective June 1, 2010. We understand that  
            additional changes to HAMP are forthcoming.  Given recent  
            changes to HAMP, we believe that this measure is  
            unnecessary and may conflict with federal programs.  At a  
            minimum, SB 1275 continues a trend of delaying or  
            stretching out the foreclosure process.  This will delay  
            economic recovery, further frustrate local governments  
            struggling with properties in disrepair while continuing  
            the trend of reduced property tax revenue for local  
            governments, and will artificially sustain depressed  
            property values."
           
           
          JJA:mw  6/2/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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