BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 708 (Corbett)
As Amended January 4, 2012
Hearing Date: January 10, 2012
Fiscal: Yes
Urgency: No
BCP:rm
SUBJECT
Residential Mortgage Loans: Foreclosure Procedures
DESCRIPTION
Existing law, until January 1, 2013, provides that a Notice of
Default, the first step in the non-judicial foreclosure process,
may not be filed on covered residential loans until either: 30
days after contacting the delinquent homeowner to discuss his or
her financial situation and explore options to avoid
foreclosure, or 30 days after satisfying specified due diligence
requirements. Existing law, until January 1, 2013, further:
requires a trustee to mail and post a statutory notice
that informs tenants that the foreclosure process has begun
and of specified statutory rights that apply if the home is
sold at a foreclosure sale;
requires a legal owner to maintain vacant foreclosed
residential homes and authorizes government entities to
impose a civil fine of up to $1,000 per day for violations,
as specified; and
requires that tenants renting a foreclosed home be given
60 days' written notice before the tenant may be removed
from the property.
This bill would extend the sunset date of the above provisions
to January 1, 2018.
BACKGROUND
In California, mortgages typically contain a "power of sale"
(more)
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clause that pre-authorizes the sale of property to pay off the
loan balance in the event of default. Lenders exercising that
power of sale must first record a Notice of Default (NOD) with
the county recorder (typically after the loan is three or more
months delinquent). The lender or servicer must then wait
three months after filing the NOD before setting a sale date for
the property by filing a notice of sale. In continued response
to the present housing and economic crisis outlined below, this
bill would extend the sunset on SB 1137 (Perata, Corbett,
Machado, Chapter 69, Statutes of 2008), which enhanced
foreclosure protections for borrowers, tenants, and
neighborhoods.
California, as well as the nation, is facing an unprecedented
threat to the economy and housing market due to high numbers of
foreclosures caused by mortgage payment defaults. Over 300,000
California homeowners received NODs from their lenders in 2010
with more than 170,000 completed foreclosure sales. Across the
state, housing values have plummeted, and areas hardest hit by
foreclosure have become blighted with vacant, uncared-for homes.
For the month of November 2011, one in every 211 housing units
received a foreclosure filing, a number that reflects over
63,000 properties. Although the earliest mortgage defaults and
foreclosures were generally limited to risky sub-prime mortgages
originated during the boom years of 2005 and 2006, California's
high unemployment rate has caused defaults and foreclosures to
spread to all types of loans, and to all types of borrowers.
Over the past few years, the California Legislature has passed
legislation in an effort to respond to the ongoing foreclosure
crisis. In 2008, the Legislature passed and the Governor signed
SB 1137, an urgency measure intended to encourage loan
modifications in order to prevent avoidable foreclosures. SB
1137, which sunsets January 1, 2013, required the lender or loan
servicer, at least 30 days prior to filing an NOD, to contact
the borrower, or try with due diligence to contact the borrower
in order to assess the borrower's financial situation and
explore options for the borrower to avoid foreclosure. Those
requirements applied to loans recorded between January 1, 2003
and December 31, 2007 that were secured by owner-occupied
residential real property. In addition to those contact
requirements, SB 1137 included provisions to empower local
governments to protect residents from blight caused by
foreclosed properties and to enhance protections for tenants of
foreclosed properties.
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This bill, which is scheduled to be heard by the Banking and
Financial Institutions Committee on January 9, 2012, would
extend the sunset on the provisions of SB 1137 to January 1,
2018. This bill would make no substantive changes to those
provisions.
CHANGES TO EXISTING LAW
Existing law regulates the non-judicial 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 and allow three months to lapse before setting
a date for sale of the property. (Civ. Code Secs. 2924, 2924f.)
Existing law requires the Notice of Sale to be posted,
published, and filed with the county recorder at least 20 days
before the sale of the property. (Civ. Code Sec. 2924f.)
1. Existing law provides that a mortgagee, trustee,
beneficiary or authorized agent may not file a Notice of
Default until either: (1) 30 days after making initial
contact; or (2) 30 days after satisfying specified due
diligence requirements. To satisfy the initial contact
requirement, the borrower must be contacted in order to assess
his or her financial situation and explore options to avoid
foreclosure. The borrower has the right to request a
subsequent meeting that, if requested, must be scheduled
within 14 days. (Civ. Code Sec. 2923.5(a).)
Existing law requires that a Notice of Default shall include a
declaration that the mortgagee, beneficiary or authorized
agent has contacted the borrower, tried with due diligence to
contact the borrower, or that no contact was required. (Civ.
Code Sec. 2923.5(b).)
Existing law permits the borrower to designate a HUD-certified
housing counseling agency, attorney, or other advisor to work
with the mortgagee, beneficiary, or authorized agent on his or
her behalf to discuss the borrower's financial situation and
options for the borrower to avoid foreclosure. (Civ. Code
Sec. 2923.5(f).)
Existing law additionally defines "borrower" and "due
diligence," and provides for alternate procedures for
properties where a Notice of Default had already been filed
prior to the enactment of the section. (Civ. Code Sec.
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2923.5(e)(g).)
Existing law provides that the above contact requirements do
not apply if the borrower surrenders the property, contracted
with an entity whose primary business is advising people on
how to extend the foreclosure process and avoid contractual
obligations, or if the borrower has filed bankruptcy. (Civ.
Code Sec. 2923.5(h).)
Existing law further limits the above contact provisions to
mortgages or deeds of trust recorded from January 1, 2003 to
December 31, 2007 that are secured by owner-occupied
residential real property. (Civ. Code Sec. 2923.5(i).)
Existing law provides that the above provisions shall remain
in effect only until January 1, 2013, and as of that date is
repealed, unless a later enacted statute, that is enacted
before January 1, 2013 deletes or extends that date. (Civ.
Code Sec. 2923.5(j).)
This bill would extend that sunset date until January 1, 2018.
2. Existing law states that the Legislature finds and declares
that any duty servicers may have to maximize net present value
under their pooling and servicing agreements is owed to all
parties in a loan pool, or to all investors, and that a
servicer acts in the best interest of all parties if it agrees
to or implements a loan modification or workout plan for which
both of the following apply: (1) the loan is in default or
default is reasonably foreseeable; and (2) anticipated
recovery under the loan modification or workout plan exceeds
the anticipated recovery through foreclosure on a net present
value basis. (Civ. Code Sec. 2923.6.)
Existing law further states the intent of the Legislature that
the mortgagee, beneficiary, or authorized agent offer the
borrower a loan modification or workout plan if such a
modification or plan is consistent with its contractual or
other authority. (Civ. Code Sec. 2923.6.)
Existing law provides that the above provisions shall remain
in effect only until January 1, 2013, and as of that date is
repealed, unless a later enacted statute, that is enacted
before January 1, 2013 deletes or extends that date. (Civ.
Code Sec. 2923.5(j).)
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This bill would extend that sunset date until January 1, 2018.
3. Existing law requires the trustee or authorized agent to
post and mail a specified notice to the "Resident of property
subject to foreclosure sale" at the time a Notice of Sale is
posted on the property. That statutory notice informs the
resident that the foreclosure process has begun on the
property, that the property may be sold twenty days or more
from the date of the notice, and that if the person is renting
the property, the new owner may give them either a new lease
or provide a 60-day eviction notice. Existing law provides
that is an infraction to tear down the statutory notice within
72 hours of posting. (Civ. Code Sec. 2924.8.)
Existing law requires the above statutory notice to be
provided in English, Spanish, Chinese, Tagalog, Vietnamese,
and Korean (English plus the five languages described in Civil
Code Section 1632). A state government entity is required to
make those translations available for use by the trustee or
authorized agent. (Civ. Code Sec. 2924.8.)
Existing law provides that the above provisions shall remain
in effect only until January 1, 2013, and as of that date is
repealed, unless a later enacted statute, that is enacted
before January 1, 2013 deletes or extends that date. (Civ.
Code Sec. 2924.8.)
This bill would extend that sunset date until January 1, 2018.
4. Existing law requires a legal owner to maintain vacant
residential property purchased by that owner at a foreclosure
sale, or acquired by that owner through foreclosure under a
mortgage or deed of trust. (Civ. Code Sec. 2929.3.)
Existing law authorizes a governmental entity to impose a
civil fine of up to $1,000 per day for a violation, and
provides that if a governmental entity chooses to impose a
fine pursuant to this section, it shall give notice of the
violation and notice of intent to assess a civil fine if
corrective action is not commenced within 14 days and
completed within a period of not less than 30 days. (Civ. Code
Sec. 2929.3.)
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Existing law requires a governmental entity to provide a
period of not less than 30 days for the legal owner to remedy
the violation prior to imposing a civil fine, but permits less
than 30 days' notice to remedy a condition if a specific
condition of the property threatens public health or safety,
as specified. (Civ. Code Sec. 2929.3.)
Existing law states that these provisions shall not preempt
any local ordinance and applies those provisions only to
residential real property. (Civ. Code Sec. 2929.3.)
Existing law provides that the above provisions shall remain
in effect only until January 1, 2013, and as of that date is
repealed, unless a later enacted statute, that is enacted
before January 1, 2013 deletes or extends that date. (Civ.
Code Sec. 2924.8.)
This bill would extend that sunset date until January 1, 2018.
5. Existing law provides that a tenant or subtenant in
possession of a rental housing unit at the time the property
is sold in foreclosure shall be given 60 days' written notice
before the tenant or subtenant may be removed from the
property. (Code Civ. Proc. Sec. 1161b.)
Existing law provides that the above provision shall remain in
effect only until January 1, 2013, and as of that date is
repealed, unless a later enacted statute, that is enacted
before January 1, 2013 deletes or extends that date. (Civ.
Code Sec. 2924.8.)
This bill would extend that sunset date until January 1, 2018.
COMMENT
1. Stated need for the bill
The author notes that this bill would extend the sunset of SB
1137 (Perata, Corbett, Machado, 2008) in order to continue to
reduce the number of foreclosures in California, ensure that
foreclosed properties do not become a source of blight, and
continue to protect vulnerable tenants. According to the
author:
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The original problems that prompted SB 1137 in 2008 continue
to persist today. The committee noted the "severe housing
crisis" and the "significant negative ripple effects on
housing values, local economics, and the state economy" as
the problems that SB 1137 was introduced to solve. These
same problems continue to persist today. A recent report,
"Lost Ground, 2011" by the Center for Responsible Lending,
notes that the country is "not even halfway through the
foreclosure crisis." The report further notes that the
on-going crisis has had significant impact on low- and
moderate-income neighborhoods with high concentrations of
minorities. . . .
Without this law, come January 1, 2013, distressed
homeowners will wade through an incredibly difficult
situation alone-without initial contact from their lenders
and without the resources available to so many homeowners
since the passage of SB 1137. Without the extension of the
provisions in SB 1137, Californians can expect foreclosed
properties in their neighborhoods to threaten the safety of
families, decrease surrounding housing values, and undermine
the state's economic recovery.
2. Extension of sunset
The provisions of this bill would extend the provisions of SB
1137 without modifying any of the obligations imposed on the
affected parties. The policy question raised by the proposed
extension is whether the existing protections for homeowners,
tenants, and communities should be continued for another five
year period as a result of the continuing foreclosure crisis.
Absent that extension, provisions requiring contact before
foreclosure, maintenance of foreclosed properties, and
additional tenant protections will be automatically repealed.
Although the original sunset date of January 1, 2013 arguably
sought to apply these protections though the duration of the
foreclosure crisis, as noted by the author, the Center for
Responsible Lending's recent report concluded that the country
is not even halfway through the foreclosure crisis.
a. Contact requirements
SB 1137 prohibited the filing of a Notice of Default until at
least 30 days after the foreclosing entity has contacted the
borrower to discuss his or her financial situation and explore
options to avoid foreclosure, or, 30 days after complying with
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specified due diligence requirements. Regarding the impact of
those and other requirements, this Committee heard testimony
in a March 16, 2010 joint hearing from the then-Commissioner
of the Department of Corporations that although the average
duration of the foreclosure process has increased over time:
The very early statistic that we heard going into all of
this, before ŬSB] 1137 was passed and all of this, is
that more than half of the people who receive a Notice of
Default lose their home without ever making any contact
with their lender. So, what these bills have done-it's
not just the lenders having a change of heart. It really
has been driven by a better level of communication by the
borrower and by the lender in coming together to try to
talk about what deal can be done to structure a
modification to keep people in their homes.
So, that's been sort of the outcome that I think we can
point to as a positive outcome as a result not only the
lengthening of the time, but in the reducing the actual
number of people that get pulled through all the way to
the foreclosure process.
Western Center on Law & Poverty, in support of the proposed
sunset extension for SB 1137's contact requirements, similarly
asserts:
For those facing foreclosure, the borrower-contact
provisions of SB 1137 have helped form the framework for
loan modification efforts, and given those borrowers with
an opportunity to stay in their homes, a chance to find a
solution. As this foreclosure crisis continues, we think
it is critical not to retreat from ensuring that every
effort is made to keep homeowners in their homes.
It should be noted that SB 1137 imposed contact requirements
prior to the filing of a Notice of Default and did not
technically increase the duration of the foreclosure process
itself. To the extent that the contact leads to fruitful
discussions between distressed homeowners and servicers, the
extension of the SB 1137 contact requirements would appear to
continue to encourage those discussions. Moreover, as a
matter of public policy, if the SB 1137 contact requirements
were allowed to sunset, a lender could foreclose on covered
homes without even attempting to reach out to the delinquent
homeowner.
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b. Tenant provisions
SB 1137 contained two provisions that sought to address the
various problems faced by tenants of foreclosed properties.
First, SB 1137 required a notice to be posted and mailed to
tenants at the time the property was noticed for a foreclosure
sale. That notice (which is in English, Spanish, Chinese,
Tagalog, Vietnamese, and Korean) acts to provide notice to
tenants that the home they are renting may be sold in a
foreclosure sale in around three weeks, and, that they have a
statutory right to stay in the property for a specified amount
of time after that sale. Second, SB 1137 required that
purchasers of foreclosed homes at a foreclosure sale must give
at least 60 days' notice before evicting those tenants. From
a policy standpoint, those provisions originally sought to
give tenants notice of what was occurring in their rental home
and to provide time to locate alternate housing should the
home be sold in foreclosure.
It should be noted that after the enactment of SB 1137,
President Obama signed S. 896, P.L. 111-22, which included the
Protecting Tenants at Foreclosure Act of 2009 (Act). That
Act, which sunsets on December 31, 2014, generally requires
the purchaser of a home at a foreclosure sale to honor the
tenant's lease unless the purchaser intends to occupy the home
as their primary residence. If there is no lease, the lease
is terminable at will (a month-to-month tenancy), or if the
purchaser will occupy the home as their primary residence, the
tenant must be provided with a 90-day notice to vacate (unless
a longer period is required by state or local law). The Act
also made a conforming change to federal provisions relating
to Section 8 tenancies for which California law already
requires a 90 day notice. (See Civ. Code Sec. 1954.535.) As a
result, federal law generally provides greater protection to
tenants than state law by providing additional time (90 vs. 60
days) and imposes a requirement that the lease be honored
under certain circumstances.
Regarding the lack of conformity with federal law, the author
states that the intent of SB 708 is only to extend the sunset
of SB 1137 and not to substantively modify any of its
requirements. Although federal law will continue to apply
even if California's eviction statute is not updated, tenants
receiving the current statutory notice required by SB 1137 may
be misled by the statement that: "If you are renting this
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property, the new property owner may either give you a new
lease or rental agreement or provide you with a 60-day
eviction notice." Absent a change to the required notice,
tenants may mistakenly believe that they are not entitled to
either a 90-day notice, or the honoring of their lease, as
required by federal law.
To address the above confusion, the following amendment is
suggested to revise the current statutory notice in a manner
that references the potential for the continuation of the
lease and a 90 day eviction notice.
Suggested amendment:
On page 7, line 36, strike out: "Foreclosure process has begun
on this" and lines 37 through 40, inclusive, and on page 8,
strike out lines 1 through 5, inclusive, and insert:
You are not required to move at this time. However, the
foreclosure process has begun on this property, which may
affect your right to continue to live in this property in
the future. Twenty days or more after the date of this
notice, this property may be sold at foreclosure. If you
are renting this property, your tenancy may continue
after the foreclosure sale. In order for the new owner
to evict you, the new owner must provide you with at
least 60 days written eviction notice or 90 days if
required by any other provision of state or federal law.
However, some laws may prohibit an eviction. You should
contact a lawyer or housing counseling agency to discuss
any rights you may have. If you do not know an attorney,
you may want to call an attorney referral service. If
you cannot afford an attorney, you may be eligible for
free legal services from a nonprofit legal services
program."
Staff notes that the above amendment is substantially similar
to non-controversial language included in SB 483 (Corbett,
2009) to address this same issue. As the statutory notice
must be translated into additional languages by a state
government entity, the author should work with stakeholders to
determine whether a delayed enactment date would be
appropriate to allow time for the translation (SB 1137 had a
delayed operative date for this provision of 60 days).
c. Blight provisions
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Finally, SB 1137 required legal owners of foreclosed
properties to maintain vacant residential properties purchased
at foreclosure sales. That maintenance is essential to
protecting the surrounding homes (and community) from the
effect of neglected foreclosed homes. Regarding problems
posed by neglected foreclosed properties, the Los Angeles
Times' August 28, 2007 article "Blight moves in after
foreclosures" noted:
Houses abandoned to foreclosure are beginning to breed
trouble, adding neighbors to the growing ranks of
victims. Stagnant swimming pools spawn mosquitoes, which
can carry the potentially deadly West Nile virus. Empty
rooms lure squatters and vandals. And brown lawns and
dead vegetation are creating eyesores in well-tended
neighborhoods.
To additionally empower local governments to take action to
require maintenance of those properties, SB 1137 allowed those
governments to impose a fine of up to $1,000 per day for
failing to maintain a home, after providing notice of their
intent to fine, and ensured that local governments retained
discretion to fashion their own ordinances. Considering that
the foreclosure crisis is expected to continue for several
years, it appears appropriate to continue to provide local
governments that do not otherwise have applicable ordinances
with the ability to require maintenance of foreclosed homes.
The author further asserts that:
With Ŭa] looming threat of so many properties being
foreclosed, it's important to extend the maintenance of
property provisions. These empty properties have become a
breeding ground for methamphetamine labs, drug selling
activity, and other criminal activity threatening the
safety of children and their families in these
neighborhoods. Indeed, according to a report by the
RE-Fund California Campaign, costs to maintain these
properties can cost billions of dollars to local
governments. For every foreclosed property, the loss to
the surrounding community is nearly $340,000.
3. Key findings of Mabry v. Superior Court
In Mabry v. Superior Court (2010) 185 Cal.App.4th 208 (rev.
denied), California's Court of Appeal, Fourth Appellate District
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made several key findings regarding SB 1137, including that
borrowers have the ability to bring a private right of action,
and that SB 1137 is not preempted by federal law.
a. Private right of action
The Mabry court initially observed that a private right of
action may be inherent in a statute when such an action is
necessary to achieve the statute's policy objectives.
Regarding the lack of an express private right of action in SB
1137, the court observed:
. . . the bottom line was an outcome of silence, not a
clear statement that there should be no individual
enforcement. . . . Amicus curiae, the California Bankers
Association, asserts that if section 2923.5 had included
an express right to a private right of action, the
association would have vociferously opposed the
legislation. Let us accept that as true. But let us also
accept as a reasonable premise that the sponsors of the
bill (Sen. Bill No. 1137 (2007-2008 Reg. Sess.)) would
have vociferously opposed the legislation if it had an
express prohibition on individual enforcement. The point
is, the bankers did not insist on language expressly or
even impliedly precluding a private right of action, or,
if they did, they didn't get it. The silence is consonant
with the idea that section 2923.5 was the result of a
legislative compromise, with each side content to let the
courts struggle with the issue. Mabry v. Superior Court
(2010) 185 Cal.App.4th at 220.
In concluding that SB 1137 included an inherent private right
of action, the court held that "the very structure of section
2923.5 is inherently individual. That fact strongly suggests a
legislative intention to allow individual enforcement of the
statute. The statute would become a meaningless dead letter if
no individual enforcement were allowed: It would mean that the
Legislature created an inherently individual right and decided
there was no remedy at all. Second, when section 2923.5 was
enacted as an urgency measure, there already was an existing
enforcement mechanism at hand-section 2924g. There was no
need to write a provision into section 2923.5 allowing a
borrower to obtain a postponement of a foreclosure sale, since
such a remedy was already present in section 2924g. Reading
the two statutes together as allowing a remedy of postponement
of foreclosure produces a logical and natural whole." (Id. at
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225.) Thus, Mabry clarified that a borrower is able to bring
a private right of action to enforce compliance with SB 1137.
Given that this bill simply extends the sunset date and does
not modify the provisions construed by the Court of Appeal,
this bill would not modify or affect the ability for a
borrower to bring an action to enforce the provisions of SB
1137.
b. Preemption
Although federal laws, regulations, and rules govern the
lending practices of national banks and thrifts, authority to
regulate the right of those financial institutions to collect
on that debt through foreclosure is within the jurisdiction of
the individual states. The Mabry court initially noted that
"Ŭa] remarkable aspect of ŬSB 1137] is that it appears to have
been carefully drafted to avoid bumping into federal law,
precisely because it is limited to affording borrowers only
more time when lenders do not comply with the statute." (Id.
at 226.) The court further held that:
We agree with the Mabrys that the process of foreclosure
has traditionally been a matter of state real property
law, a point noted both by the United States Supreme
Court in BFP v. Resolution Trust Corporation (1994) 511
U.S. 531, 541-542 and academic commentators (e.g.,
Alexander, Federal Intervention in Real Estate Finance:
Preemption and Federal Common Law (1993) 71 N.C. L.Rev.
293.) . . . Given the traditional state control over
mortgage foreclosure laws, it is logical to conclude that
if the Office of Thrift Supervision wanted to include
foreclosure as within the preempted category of loan
servicing, it would have been explicit. Nothing prevented
the office from simply adding the words "foreclosure of"
to Regs. section 560.2(b)(10). . . .
We emphasize that we are able to come to our conclusion
that section 2923.5 is not preempted by federal banking
regulations because it is, or can be construed to be,
very narrow. As mentioned above, there is no right, for
example, under the statute, to a loan modification.
It should be noted that the Court of Appeal's ruling examined
preemption with regards to the Home Owners' Loan Act of 1933,
and that several federal district courts have held SB 1137 to
be preempted. Despite the conflict, the issue of preemption
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remains with the courts and, to the extent that the Mabry
decision continues to be upheld by California state courts,
the proposed sunset extension will continue to provide
borrowers an opportunity to compel compliance with the SB 1137
requirements.
Support : Center for Responsible Lending; Western Center on Law
& Poverty
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
SB 1137 (Perata, Corbett, Machado, Chapter 69, Statutes of
2008), See Background.
SBx2 7 (Corbett, Chapter 4, Statutes of 2009), and ABx2 7 (Lieu,
Chapter 5, Statutes of 2009), required, until January 1, 2011,
that mortgage servicers wait 90 days before recording an NOD in
an effort to provide borrowers with additional time to work out
a loan modification with their lender. Servicers could apply
for an exemption from the 90-day delay by demonstrating to their
relevant regulator that they have implemented a comprehensive
loan modification program.
SB 1149 (Corbett, Chapter 641, Statutes of 2010), prohibited the
release of court records in a foreclosure-related eviction
unless the landlord prevailed, as specified, and required that a
prescribed cover sheet, notifying a tenant of his or her rights
and responsibilities, be attached to any eviction notice that is
served within one year after a foreclosure.
SB 1275 (Leno, Steinberg, 2010), would have required a
foreclosing financial institution to process an application for
a loan modification prior to recording a Notice of Default, and,
among other things, have required a declaration of compliance to
be recorded to certify compliance with the bill's provisions.
This bill failed passage on the Assembly Floor.
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SB 729 (Leno, Steinberg, 2011), would have enacted substantially
similar requirements as SB 1275. This bill failed passage in
the Senate Banking & Financial Institutions Committee.
Prior Vote : Senate Banking & Financial Institutions Committee
(scheduled to be heard January 9, 2012)
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