BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    SB 1150


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          Date of Hearing:   June 20, 2016


                      ASSEMBLY COMMITTEE ON BANKING AND FINANCE


                               Matthew Dababneh, Chair


          SB  
          1150 (Leno) - As Amended June 13, 2016


          SENATE VOTE:  21-14


          SUBJECT:  Mortgages and deeds of trust: mortgage servicers and  
          lenders: successors in interest


          SUMMARY:  Requires mortgage servicers and lenders to provide  
          successors in interest with key information about outstanding  
          mortgages previously held by a deceased borrower; requires  
          servicers and lenders to allow successors in interest to assume  
          those mortgages, as specified, and to apply and be considered  
          for foreclosure prevention alternatives in connection with those  
          mortgages, as specified; and provides judicial enforcement  
          mechanisms for use by successors in interest to compel lenders  
          and servicers to comply with the bill's provisions.   
          Specifically, this bill:  


          1)Provides that upon notification by someone claiming to be a  
            successor in interest that a borrower has died, and where the  
            person claiming to be a successor is not a party to the loan  
            or promissory note, the mortgage servicer shall not record a  
            notice of default (NOD) until the servicer does both of the  
            following:









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             a)   Request reasonable documentation of the death of the  
               borrower from the claimant, including but not limited to, a  
               death certificate or other written evidence of the death of  
               the borrower.  The servicer is required to provide the  
               claimant a minimum of 30 days to respond to the request for  
               information; and,

             b)   Request reasonable documentation from the claimant  
               regarding the status of the claimant as a successor in  
               interest.  The servicer is required to provide the claimant  
               at least 90 days from the date of the written request.



          2)Specifies that upon receipt by the mortgage servicer of the  
            reasonable documentation of the claimant as successor in  
            interest the claimant shall be deemed a "successor in  
            interest."

          3)Requires a servicer to apply the provisions specified to  
            multiple successors in interest.



          4)States that an affirmative duty is not on a servicer to  
            provide a loan modification to a successor in interest.



          5)Provides that a successor in interest that assumes the loan  
            may be required to otherwise qualify for available foreclosure  
            prevention alternatives offered by the mortgage servicer.



          6)Requires a mortgage servicer, with 10 days of a claimant being  
            deemed a successor in interest to provide the successor in  
            interest with information in writing about the loan, including  
            loan balance, interest rate, interest reset dates and amounts,  








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            balloon payments, if any, prepayment penalties if any, default  
            or delinquency status, the monthly payment amount, and payoff  
            amounts.



          7)Specifies that a mortgage servicer shall allow a successor in  
            interest to either:



             a)   Assume the deceased borrower's loan to the extent  
               permitted under state and federal law and terms of the  
               loan; and,

             b)   In the case where a successor in interest seeks a  
               foreclosure prevention alternative, simultaneously apply to  
               assume the loan and for a foreclosure prevention  
               alternative that is offered by the loan lender or  
               applicable loss mitigation rules.



          8)Requires the servicer to allow the successor in interest to  
            assume the loan if they qualify for a foreclosure prevention  
            alternative.

          9)Provides that a successor in interest shall have all the  
            rights and remedies available under the California Homeowner  
            Bill of Rights (HBOR).



          10)Specifies, that in order to receive the protections of HBOR  
            the successor in interest must meet the following criteria:



             a)   Be eligible to assume a deceased borrower's outstanding  








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               mortgage loan;

             b)   Wish to apply for a foreclosure prevention alternative  
               in connection with the deceased borrower's loan; and,



             c)   Be either of the following:



               i)     The spouse, child, or grandchild of the deceased  
                 borrower; or,

               ii)    A person who occupies the property as his or her  
                 principal residence at the time of the deceased  
                 borrower's death.



          11)Provides for the following enforcement mechanisms:

             a)   If a trustee's deed upon sale has not been recorded, a  
               successor in interest may bring an action for injunctive  
               relief.  Any injunction shall remain in place and any  
               trustee's sale shall be enjoined until the court determines  
               that the mortgage servicer has corrected and remedied the  
               violation.

             b)   After a trustee's deed upon sale has been recorded, a  
               mortgage servicer shall be liable to a successor in  
               interest for actual economic damages resulting from a  
               material violation.  If the material violation is found to  
               be intentional or reckless, or resulted from willful  
               misconduct the court may award the successor in interest  
               the greater of treble actual damages of statutory damages  
               of $50,000.










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             c)   A prevailing successor in interest may be awarded  
               reasonable attorney's fees and costs.  A successor in  
               interest is considered to be prevailing if they have  
               obtained injunctive relief or damages.



             d)   A servicer is not liable for a violation that it has  
               corrected and remedied prior to recordation of the  
               trustee's deed upon sale.



          12)Provides the Department of Business Oversight and the Bureau  
            of Real Estate with power to adopt regulations applicable to  
            any entity or person under their respective jurisdictions that  
            are necessary to carry out the provisions of this bill.

          13)Defines "reasonable documentation" as copies of the following  
            documents:



             a)   In the case of a personal representative, letters as  
               defined in Section 52 of the Probate Code;

             b)   In the case of devisee or an heir, a copy of the  
               relevant will or trust document;



             c)   In the case of a beneficiary of a revocable transfer on  
               death deed, a copy of that deed;



             d)   In the case of a surviving joint tenant, an affidavit of  
               death of the joint tenant or a grant deed showing joint  








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               tenancy;



             e)   In the case of a surviving spouse where the real  
               property was held as community property with right of  
               survivorship, an affidavit of death of the spouse or a deed  
               showing community property with right of survivorship;



             f)   In the case of a trustee of a trust, a certification of  
               trust pursuant to Section 18100.5 of the Probate Code; and,



             g)   In the case of a beneficiary of a trust, relevant trust  
               documents related to the beneficiary's interest.



          14)Specifies that if the documents in #13 a) through g) are not  
            available then "reasonable documentation" may include other  
            written evidence of the person's status as a successor in  
            interest.

          15)Defines "Successor in interest" as a natural person who  
            provides the mortgage servicer with notification of the death  
            of the mortgagor or trustor and reasonable documentation  
            showing that the person is any of the following:



             a)   The personal representative, as defined in Section 58 of  
               the Probate Code, of the mortgagor's or trustor's estate;

             b)   The devisee, as defined in Section 34 of the Probate  
               Code, or the heir, as defined in Section 44 of the Probate  
               Code, of the real property that secures the mortgage or  








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               deed of trust;



             c)   The beneficiary, as defined in Section 5608 of the  
               Probate Code, on a revocable transfer on death deed;



             d)   The surviving joint tenant of the mortgagor or trustor;  
               or,


             e)   The surviving spouse of the mortgagor or trustor if the  
               real property that secures the mortgage or deed of trust  
               was held as community property with right of survivorship  
               pursuant to Section 682.1.



          16)Exempts from its provisions a depository institution  
            chartered under state or federal law, a person licensed under  
            the California Finance Lenders Law, or the California  
            Residential Mortgage Lending Act or a person licensed under  
            the real estate law that during its immediate preceding annual  
            reporting period foreclosed on 175 or fewer residential real  
            properties, containing no more than four dwelling units that  
            are located in California.

          17)Makes the following findings and declarations:



             a)   Beginning in 2008, California faced a foreclosure  
               crisis, with rapidly dropping home values and skyrocketing  
               job losses. Indiscriminate foreclosure practices of major  
               mortgage servicers compounded the problem as they created a  
               labyrinth of red tape, lost documents, and erroneous  
               information, and then they started foreclosure proceedings  








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               while borrowers and their families were in the middle of  
               applying for a loan modification.

             b)   The California Legislature responded with a  
               first-in-the-nation HBOR, which requires mortgage servicers  
               to provide borrowers a fair and transparent process, a  
               single point of contact (SPOC), and the opportunity to  
               finish applying for a loan modification before foreclosure  
               proceedings can start. HBOR stabilized families,  
               neighborhoods, and local communities by slowing down  
               indiscriminate foreclosures.



             c)   Now, however, district attorneys and legal aid  
               organizations are reporting an increasing number of cases  
               in which mortgage servicers use a loophole in HBOR to  
               foreclose on certain homeowners-people who survive the  
               death of a borrower and have an ownership interest in the  
               home but are not named on the mortgage loan. Most often,  
               the "survivor" is the borrower's spouse and is over 65  
               years of age.



             d)   When the surviving widow or widower, domestic partner,  
               children, or other heirs attempt to obtain basic  
               information about the loan from the servicer, they face the  
               same kind of barriers and abuses-and, finally  
               foreclosure-that convinced the Legislature to pass HBOR.



             e)   Home ownership is the primary avenue for most Americans  
               to build generational wealth. Indiscriminate foreclosures  
               on surviving heirs destroy a family's ability to build for  
               its financial future. Foreclosures also exacerbate the  
               racial wealth gap-and overall wealth inequality-in society,  
               and force seniors who want to "age in place" into the  








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               overheated rental market instead, with devastating health  
               impacts.



             f)   Surviving heirs deserve the same transparency and  
               opportunity to save their home as HBOR gave the original  
               borrower. This act would stem a disturbing nationwide trend  
               and help keep widows and widowers, children, and other  
               survivors in their homes-without requiring mortgage  
               servicers to do anything more than they already do for  
               other homeowners.



             g)   It is the intent of the Legislature that this act work  
               in conjunction with federal Consumer Financial Protection  
               Bureau (CFPB) servicing guidelines.


          EXISTING FEDERAL LAW:


          1)Defines a due-on-sale clause, pursuant to the Garn-St. Germain  
            Depository Institutions Act of 1982 (Garn St. Germain; 12 USC  
            Section 1701j-3), as a contract provision which authorizes a  
            lender, at its option, to declare due and payable sums secured  
            by the lender's security instrument if all or any part of the  
            property, or an interest therein, securing the real property  
            loan is sold or transferred without the lender's prior written  
            consent, and authorizes lenders to enter into and enforce real  
            property loan contracts containing due-on-sale clauses.  The  
            existence of this federal act is the primary reason that  
            existing mortgages must usually be fully paid off when a house  
            is sold to a new owner. 
           
          2)Provides, pursuant to Garn-St. Germain, that a due-on-sale may  
            not be enforced on a loan secured by residential real property  
            containing fewer than five dwelling units, when that real  








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            property is transferred in any one of the following ways:  a  
            transfer by devise, descent, or operation of law on the death  
            of a joint tenant or tenant by the entirety; a transfer to a  
            relative resulting from the death of a borrower; a transfer  
            where the spouse or children of the borrower become an owner  
            of the property; a transfer resulting from a decreed of  
            dissolution of marriage, legal separation agreement, or from  
            an incidental property settlement agreement, by which the  
            spouse of the borrower becomes an owner of the property; or a  
            transfer into an inter vivos trust in which the borrower is  
            and remains a beneficiary and which does not relate to a  
            transfer of rights of occupancy in the property.  Because of  
            these exceptions, lenders commonly allow successors in  
            interest to assume an outstanding mortgage secured by property  
            they obtain through one of the transfer mechanisms listed  
            immediately above.  


          EXISTING STATE LAW:


          1)Provides for HBOR, which contains numerous provisions intended  
            to facilitate communication between mortgage servicers and  
            borrowers regarding options for borrowers to avoid  
            foreclosure.  The following provisions apply to servicers with  
            respect to first-lien mortgages secured by owner-occupied  
            principal residences containing one- to four-dwelling units:  



             a)   Servicers may not record a NOD until at least 30 days  
               after making initial contact with a borrower to discuss  
               options for that borrower to avoid foreclosure or, if  
               contact with the borrower cannot be made, until at least 30  
               days after the servicer satisfies specified due diligence  
               requirements to establish contact (Civil Code Section  
               2923.5 and Civil Code Section 2923.55; all further code  
               section references are to the Civil Code).









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             b)   Until January 1, 2018, servicers may not record a NOD  
               before sending specified documents to delinquent borrowers  
               informing them of certain rights and providing a toll-free  
               telephone number that can be used by borrowers to identify  
               nearby housing counseling agencies (Section 2923.55).



             c)   Until January 1, 2018, servicers that offer one or more  
               foreclosure prevention alternatives must send the following  
               to a borrower in writing, within five business days after  
               recording a NOD, unless that borrower has previously  
               exhausted the first lien loan modification process:  a  
               statement that the borrower may still be evaluated for one  
               or more alternatives to foreclosure; a statement informing  
               the borrower whether an application is required to be  
               considered for this alternative/these alternatives; and  
               information on the means and process by which a borrower  
               may obtain an application, if one is required (Section  
               2924.9).



             d)   Until January 1, 2018, servicers must acknowledge  
               receipt of any document received in connection with a first  
               lien loan modification application within five days of  
               receipt of that document (Section 2924.9).



             e)   Once a borrower submits a complete first lien loan  
               modification application, a servicer may not take the next  
               step in the nonjudicial foreclosure process while that  
               application is pending, as specified.  If a borrower's  
               first lien loan modification application is denied,  
               servicers must send written notice of denial to the  
               borrower, identifying the reasons for denial with  
               specificity and informing the borrower how to appeal the  
               denial, including the date by which the appeal must be  








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               submitted (Section 2923.6, 2924.10. and 2924.11).



             f)   Before recording any one of several different types of  
               documents that are required in the context of nonjudicial  
               foreclosure, servicers must ensure that they have reviewed  
               competent and reliable evidence to substantiate the  
               borrower's default and the servicer's right to foreclose.   
               Any of these documents that are recorded by or on behalf of  
               a mortgage servicer must be accurate and complete and must  
               be supported by competent and reliable evidence (Section  
               2923.17).



             g)   Servicers must assign a SPOC upon request by any  
               borrower who requests a foreclosure prevention alternative.  
                The SPOC is either an individual or a team of personnel,  
               each of whom has the ability and authority to undertake  
               several specified responsibilities, and each of whom is  
               knowledgeable about the borrower's situation and current  
               status in the loss mitigation process.  The requirement to  
               provide a SPOC concludes when the servicer determines that  
               all loss mitigation options offered by or through that  
               servicer have been exhausted, or when the borrower's  
               mortgage becomes current (Section 2923.7).  



             h)   Authorizes borrowers to bring judicial actions against  
               servicers to enforce the aforementioned provisions.  If a  
               trustee's deed upon sale has not been recorded (i.e., if a  
               foreclosure has not been completed), a borrower may bring  
               an action for injunctive relief to enjoin an uncorrected,  
               material violation of the aforementioned provisions; this  
               injunction remains in place, and any trustee's sale is  
               enjoined, until the court determines that the servicer has  
               corrected and remedied the violation or violations giving  








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               rise to the action for injunctive relief.  After a  
               foreclosure is completed, a former borrower may bring an  
               action for actual economic damages resulting from an  
               uncorrected, material violation of any of the  
               aforementioned provisions. Courts are authorized to award a  
               prevailing plaintiff reasonable attorney's fees and costs  
               for actions brought to enforce the aforementioned  
               provisions; a plaintiff is deemed to have prevailed for  
               purposes of HBOR if that plaintiff obtained injunctive  
               relief or was awarded damages (Sections 2924.12 and  
               2924.19).


          FISCAL EFFECT: The bill is keyed non-fiscal


          


          COMMENTS:  


           Need for the bill  .


          According to the author:


            California led the nation in 2012 with its Homeowners' Bill of  
            Rights (HBOR), requiring a single point of contact and  
            prohibiting dual-tracking of borrowers, a practice of driving  
            owners to foreclosure even while working on loan  
            modifications.  HBOR is credited with having slowed down  
            foreclosures in 2013 as servicers attended to the new  
            homeowner protections.  HBOR helps stabilize families,  
            neighborhoods, and local economies.  However, there's more to  
            be done. 










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            In California and across the country, legal aid organizations  
            have documented that the very abuses HBOR prohibits are being  
            endured by widows, widowers, and other survivors who are  
            losing their homes to foreclosure because the mortgage  
            servicer refuses to consider them for a loan assumption or  
            modification.  The servicers maintain that surviving  
            homeowners who aren't listed on the mortgage note have no  
            protections under HBOR, even though the intent of the bill was  
            to protect all homeowners.


            In the most common scenario, a surviving widow owns her home,  
            but is not listed on its mortgage loan.  She attempts to apply  
            for a loan assumption and to get information on loan  
            modification options, just as her spouse could have done under  
            HBOR.  At that point, she faces a mortgage servicer who  
            exhibits the same problematic behaviors that convinced the  
            legislature to pass HBOR: refusing to talk to the homeowner,  
            creating a confusing labyrinth of processes, losing documents  
            repeatedly, transferring responsibilities between multiple  
            employees, giving inaccurate information, and foreclosing on  
            the homeowner without ever considering her for a loan  
            modification.


            Unnecessary foreclosures devastate families' ability to build  
            for their financial future.  As homeownership remains the  
            primary way that Americans build wealth for themselves and  
            their offspring, our continued failure to protect surviving  
            spouses and children only exacerbates the racial wealth gap in  
            society.  Further, foreclosures on survivors thwart the intent  
            of property, and wills and estates laws. And, unnecessary  
                  foreclosures also are secret, silent killers.  Seniors forced  
            from their home are likely to suffer devastating health  
            impacts, and with dramatically high and still rising rents  
            across California, homelessness.


            Surviving homeowners deserve a fair chance to take  








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            responsibility for their mortgage loan attached to their  
            homes.  They deserve the respect of receiving clear  
            communication and accurate information, especially during the  
            stressful time following the death of a loved one.  SB 1150  
            clarifies the responsibilities of a lender when a borrower  
            dies leaving a surviving homeowner who wishes to assume the  
            loan.


          On June 27, 2012, the Conference Committee on the California  
          Foreclosure Crisis passed HBOR in order to protect homeowners in  
          the mortgage market, help keep families in their homes, and  
          revive the state's economy following historic foreclosure rates  
          and rampant abuse, fraud, and deception that caused more than  
          one million Californian's to lose their homes.  That bill  
          package sought to: (1) stop the practice of "dual-tracking;" (2)  
          establish a SPOC for homeowners with their lenders; and (3)  
          mandate a chain of title of the property.


          Generally speaking, HBOR creates requirements intended to  
          facilitate communication between mortgage servicers and  
          borrowers regarding options for borrowers to avoid foreclosure.   
          HBOR restricts servicers from recording a NOD under California's  
          non-judicial foreclosure process until at least 30 days after  
          contacting a borrower to discuss options for that borrower to  
          avoid foreclosure.  HBOR requires servicers to send specified  
          documents to delinquent borrowers informing them of their rights  
          and to provide a toll-free telephone number that can be used by  
          borrowers to identify nearby housing counseling agencies before  
          recording a NOD.  Importantly, once a borrower submits a loan  
          modification application, the servicer is prohibited from taking  
          any further steps in the non-judicial foreclosure process while  
          that application is pending.  If the loan modification  
          application is denied, the servicer must send a written notice  
          of denial to the borrower, identifying the reasons for the  
          denial and informing the borrower how the denial decision may be  
          appealed.









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          HBOR requires servicers to ensure that they have competent and  
          reliable evidence to substantiate a borrower's default and the  
          servicer's right to foreclose before recording documents in the  
          non-judicial foreclosure process.  HBOR also requires servicers  
          to assign SPOC to any borrower who requests a foreclosure  
          prevention alternative, and states that the contact must have  
          authority to act on behalf of the servicer, as specified, and be  
          knowledgeable about the borrower's situation and current status  
          in the servicer's loss mitigation process.  HBOR includes  
          various consumer remedies for violations of its provisions,  
          including treble and statutory damages.


          AB 1150 seeks to extend the protections of HBOR to successors in  
          interest as defined including a right to seek injunctive relief  
          and economic damages under certain scenarios.
           
          Existing Rules Concerning Successors in Interest.
           
          Under regulations implementing the federal Real Estate  
          Settlement Procedures Act (RESPA), effective January 10, 2014,  
          servicers are required to have policies and procedures in place  
          to, "upon notification of the death of a borrower, promptly  
          identify and facilitate communication with the successor in  
          interest of the deceased borrower with respect to the property  
          secured by the deceased borrower's mortgage loan" (12 CFR  
          1024.38).  Pursuant to the RESPA regulations, those policies and  
          procedures must be reasonably designed to ensure that a servicer  
          can do all of the following:  (1) provide accurate information  
          to a borrower regarding loss mitigation options available to  
          that borrower; (2) identify with specificity all loss mitigation  
          options for which a borrower may be eligible; (3) identify  
          documents and information that a borrower is required to submit  
          to complete a loss mitigation application; (4) provide prompt  
          access to all documents and information submitted by a borrower  
          in connection with a loss mitigation option to servicer  
          personnel that are assigned to assist the borrower; and (5)  
          properly evaluate a borrower who submits an application for a  








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          loss mitigation option for all loss mitigation options for which  
          the borrower may be eligible, as specified.  

          These regulations, and servicers' responsibilities under them,  
          were clarified in a bulletin issued by the federal CFPB prior to  
          the operative date of the regulations   
          (http://files.consumerfinance.gov/f/201310_cfpb_mortgage-servicin 
          g_bulletin.pdf).  The following year, the CFPB also clarified  
          that where a successor in interest obtains title to a dwelling  
          and agrees to be added onto a mortgage secured by that dwelling,  
          the lender is not required to evaluate that successor's ability  
          to repay that mortgage using CFPB's Ability-to-Repay Rule  
          (  http://files.consumerfinance.gov/f/201407_cfpb_bulletin_mortgage 
          -lending-rules_successors.pdf  ) as the ability to repay rule is  
          far more cumbersome and restrictive than simply evaluating basic  
          creditworthiness and affordability that is required by Fannie  
          Mae and Freddie Mac for loan assumptions.

          The RESPA rules are broadly applicable to all "federally-related  
          mortgage loans," which, generally speaking, include all  
          single-family residential mortgages (both purchase money and  
          refinanced mortgages, and both first and subordinate liens),  
          which are made by state- or federally-regulated lenders.  

          Fannie Mae has also issued guidance around the successor in  
          interest issue, which must be followed by entities that service  
          loans owned or guaranteed by that government-sponsored  
          enterprise.  In a Lender Letter issued in February 2013, Fannie  
          Mae requires servicers to "implement policies and procedures to  
          promptly identify and communicate with the new property owner in  
          connection with a property transfer that is an exempt  
          transaction. These policies and procedures must allow the new  
          owner to continue making mortgage payments and pursue an  
          assumption of the mortgage loan as well as a foreclosure  
          prevention alternative, if applicable. This includes a widow,  
          executor, or administrator of the borrower's estate, or other  
          authorized representative of the borrower upon notification of  
          the borrower's death." The Lender Letter's reference to "exempt  
          transaction" refers to transfers protected under Garn-St.  








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          Germain.  

          In its Lender Letter Fannie Mae goes on to say, "If the mortgage  
          loan is delinquent and the new property owner is unable to bring  
          the mortgage loan current but may be able to resolve the  
          delinquency with a foreclosure prevention alternative and assume  
          the mortgage loan, the servicer must collect a Borrower Response  
          Package from the new property owner and evaluate the request as  
          if they were a borrower. If the servicer determines that a  
          foreclosure prevention alternative is appropriate, it must  
          submit its recommendation to Fannie Mae for written approval.  
          Fannie Mae will determine the terms of the foreclosure  
          prevention alternative and any related assumption."

          Fannie Mae's most recently-issued servicing guide reflects the  
          guidance first issued in February 2013.  Freddie Mac has issued  
          similar guidance for entities that service mortgages which are  
          owned or guaranteed by it  
          (http://www.freddiemac.com/singlefamily/guide/bulletins/pdf/bll13 
          03.pdf).

          Finally, the Home Affordable Modification Program (HAMP),  
          designed by the U.S. Department of the Treasury and applicable  
          to many mortgages not owned or guaranteed by Fannie Mae or  
          Freddie Mac, instructs servicers subject to its rules to  
          consider non-borrower successors in interest for HAMP  
          modifications as if they were borrowers and to suspend any  
          ongoing foreclosure while doing so.   The HAMP servicer handbook  
          also states that "Non-borrowers who inherit or are awarded sole  
          title to a property may be considered for HAMP even if the  
          borrower who previously owned the property was not already in a  
          Trial Payment Plan.  Such titleholders may be considered for  
          HAMP if they meet all applicable eligibility criteria.  In this  
          case, servicers should collect an Initial Package from the  
          non-borrower who now owns the property and evaluate the request  
          as if he or she was the borrower.  The servicer should process  
          the assumption and loan modification contemporaneously if the  
          titleholder is eligible for HAMP and investor guidelines and  
          applicable law permit an assumption of the loan."   








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          (  https://www.hmpadmin.com/portal/programs/docs/hamp_servicer/mhah 
          andbook_5.pdf; see Section 8.8  ).

           

          Pending Action from CFPB: 

           On October 15, 2013 CFPB issued Bulletin 2013-12 to provide  
          guidance regarding the RESPA or Reg X and The Truth in Lending  
          Act (TILA or Reg Z).  This bulletin provided guidance for  
          mortgage services on policies and procedures servicers must  
          maintain regarding the identification of and communication with  
          any successor in interest of a deceased borrower.

          On December 15, 2014 CFPB announced changes to the Mortgage  
          Servicing Rules and Reg Z and Reg X addressing many of the  
          issues previously offered in Bulletin 2013-12.  Among these  
          proposed changes are three sets of rule changes with respect to  
          successors in interest - persons who inherit or receive property  
          when there is still an outstanding mortgage loan. First, the  
          CFPB is proposing that all of the existing Mortgage Servicing  
          Rules will apply to the successor once the servicer confirms  
          that they are, in fact, a successor in interest. Second, the  
          proposed amendments state how the determination of whether a  
          person is a successor is made. Third, the proposal ensures that  
          those confirmed as successors generally receive the same  
          protections under the CFPB's Mortgage Servicing Rules as the  
          original borrower. The proposed new definition of successor in  
          interest would include homeowners who receive property through  
          inheritance from a family member or upon the death of a joint  
          tenant, after a divorce or legal separation, through a family  
          trust, or through a transfer from a parent to a child.

          The background and justification for the proposed CFPB  
          regulations are contained in Federal Register, Vol. 79, No. 240.  
           In expanding the application of the mortgage servicing rules,  
          CFPB provides that it is "proposing to apply all of the Mortgage  
          Servicing Rules to successors in interest whose identify and  
          ownership interest in the property have been confirmed by the  








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          servicer."  Furthermore, the rules are designed to require  
          servicers to "maintain policies and procedures reasonable  
          designed to ensure that the servicer can, upon identification of  
          a potential successor interest, promptly provide to that person  
          a description of the documents the servicer reasonably requires  
          to confirm the person's identity and ownership interest in the  
          property?"


           Summary of arguments in support:
           
          SB 1150 is co-sponsored by the California Alliance for Retired  
          Americans, California Reinvestment Coalition, and Housing and  
          Economic Rights Advocates, and is supported by Attorney General  
          Harris and numerous consumer advocacy, legal services, and  
          housing rights organizations and unions, including the Consumer  
          Federation of California, California Rural Legal Assistance,  
          Nehemiah Corporation of America, CALPIRG, Western Center on Law  
          & Poverty, SEIU California, UNITE HERE, UDW/AFSCME Local 3930,  
          California Professional Firefighters, Public Law Center, Public  
          Counsel, Justice in Aging, Institute on Aging, Family Caregiver  
          Alliance, Capital Impact Partners, Renaissance Entrepreneurship  
          Center, Bay Area Legal Aid, Fair Housing of Marin, Neighborhood  
          Housing Services of Los Angeles County, Project Sentinel, Rural  
          Community Assistance Corporation, The Arc and United Cerebral  
          Palsy California Collaboration, and others.  

            Currently, widows, widowers, and certain heirs are being  
            denied a fair chance to remain in their homes, as mortgage  
            servicers deny them communication, information, and the  
            opportunity to be considered for a loan modification. This  
            issue presents itself when a family member who is the sole  
            borrower named on a home loan passes away. The surviving  
            family members who wish to continue paying the mortgage loan,  
            may have difficulty assuming the deceased borrower's loan  
            and/or affording the current mortgage payment with the loss of  
            the deceased's income. Surviving family members may then seek  
            a loan assumption and modification, only to be refused by the  
            mortgage servicer because their name is not on the loan, even  








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            when the surviving family member has a legal property interest  
            in the home. During this difficult and unfortunate period when  
            the loss of a loved one is still fresh, family members should  
            not have to deal with the added stress of losing their homes.


            In 2012, with the passage of the Homeowner Bill of Rights  
            (HBOR), the state of California provided strong due process  
            protections to similar vulnerable homeowners. But banks and  
            loan servicers argue that HBOR does not protect surviving  
            spouses and other successors in interest. The effect of all  
            this is that survivors and successors in interest have FEWER  
            rights and LESS ability to retain their homes than other  
            homeowners. This is a horrible outcome that the Legislature  
            did not foresee when HBOR was debated and passed. This is why  
            support SB 1150. The bill will provide surviving family  
            members with the opportunity to receive basic information  
            about the loan, request an assumption and loan modification,  
            and be given a fair consideration as to whether they will be  
            able keep their home.


            Despite federal Consumer Financial Protection Bureau guidance  
            regarding communications with successors-in-interest, mortgage  
            servicers continue to refuse to communicate with successors,  
            require onerous or nonexistent documentation from successors,  
            and refuse to suspend foreclosure proceedings to explore  
            alternatives, which can result in unnecessary loss of family  
            homes.


           Arguments in opposition:
           
          A coalition comprised of mortgage lenders, other financial  
          services providers involved in mortgage lending and  
          securitization, the California Chamber of Commerce, Civil  
          Justice Association of California, and California Citizens  
          Against Lawsuit Abuse submitted a group letter of opposition to  
          the bill, citing several concerns.








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             Senate Bill 1150 is not a modest bill. The measure creates  
            unknowable risk where third parties not known to the mortgage  
            servicer at some point in the future attempt to seek relief  
            under SB 1150's provisions. The measure imposes significant  
            new obligations and burdens on mortgage servicers. The measure  
            will cause a delay in collateral recovery which may leave  
            properties in disrepair. Significant legal liability will be  
            visited upon mortgage servicers attempting to comply with an  
            unclear mandate. 


            The ramifications of this measure are exacerbated by the  
            overlap and conflict that will result from the failure to wait  
            for the CFPB's regulations. If SB 1150 is enacted, mortgage  
            servicers will confront two standards, one state and one  
            federal and will be left to interpret which rule, or portion  
            thereof, to follow. Failure to choose correctly will lead to  
            alleged violations. Indicating that SB 1150 will "align" with  
            federal law is not feasible and begs the question of why a  
            state law is needed if the goal is to align with the federal  
            law.


            The measure forces a mortgage servicer to cause the successor  
            in interest to assume the loan without clarifying whether the  
            mortgage servicer can evaluate the successor in interest's  
            creditworthiness. This mandates a credit decision without the  
            opportunity to appropriately underwrite. This is expressly  
            prohibited by §341 of the federal Garn-St. Germain Act, which  
            explicitly provides that all delinquency remedies are governed  
            by the mortgage contract, and not by a state law. 


            It is also notable that the measure is not limited to widows  
            and orphans and instead applies to any natural person that is  
            a personal representative, beneficiary of a revocable transfer  
            on death deed, a joint tenant, or a trustee or beneficiary,  
            all of which may include individuals without any familial  








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            relation to the deceased borrower. 


            As drafted, this measure specifically contemplates that "there  
            may be more than one successor in interest." Yet, the measure  
            fails to adequately inform the mortgage servicer what is  
            necessary to comply with the law when there are multiple  
            successors in interest. Must a mortgage servicer communicate  
            with one or all of the successors in interest? May the  
            mortgage servicer communicate with the successors in interest  
            separately or collectively? Must the mortgage servicer furnish  
            all required information regarding the deceased borrower's  
            loan to one or all the successors in interest? Must the  
            mortgage servicer assign one single point of contact or must  
            each successor in interest have their own single point of  
            contact? How does the mortgage servicer evaluate multiple  
            successors in interest for consideration of a loan  
            modification and/or loan assumption? Must the mortgage  
            servicer underwrite them individually or collectively? These  
            are just a few questions for which answers have not been  
            provided.


           Discussion & Amendments:

           Supporters of this bill have provided case studies concerning  
          spouses or children residing in a home having monumental  
          difficulties communicating with their mortgage loan servicer  
          when the borrower on the loan has passed away.  These stories  
          are terrible to read as successors in interest have been refused  
          even basic information about the mortgage loan and next to no  
          possibility of receiving a loan modification if they qualified  
          for one.  However, while these cases are problematic, and no one  
          should make excuses for the poor treatment of surviving spouses  
          or children in relation to their mortgage loan servicer, SB 1150  
          goes further than simply ensuring that successors in interest  
          receive the proper information about the mortgage loan.  In some  
          cases the motivation of the bill and the actual implementation  
          of the language diverge.  








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          The bill contains several issues that need to be revision.   
          Where possible, staff has suggested potential fixes for the  
          identified issues.

          1)The CFPB is expected to release its final servicing rules that  
            will address successor in interest issues sometime in July of  
            this year.  The legislative findings and declarations of SB  
            1150 state, "It is the intent of the Legislature that this act  
            work in conjunction with federal CFPB servicing guidelines."   
            It is unclear how the CFPB servicing rules are to work with SB  
            1150 and the statement "in conjunction" provides no great  
            clarity as to the meaning of that phrase.  Staff recommends  
            including a clear statement that compliance with the CFPB  
            rules would be deemed compliance with the provisions proposed  
            by SB 1150.   This is not unlike provisions in HOBR,  
            specifically Civil Code Section 2924.12 that provides that a  
            signatory to a consent judgment entered in the case entitled  
            United States of America et al. v. Bank of America Corporation  
            et al. is liable for certain violations under HOBR.  
            Therefore staff recommends the following language be added to  
            the bill:


             Any mortgage servicer, mortgagee, or beneficiary of the deed  
            of trust or an authorized agent of such person who complies  
            with the relevant provisions of relating to successors in  
            interest of 12 C.F.R. Part 1024, known as Regulation X, and 12  
            C.F.R. Part 1026, known as Regulation Z, as those regulations  
            are amended by the Final Servicing Rules issued by the  
            Consumer Financial Protection Bureau in 78 Federal Register  
            10,696 on February 14th, 2013 and any amendments thereto, is  
            deemed to be in compliance with this section.


           2)The criteria specified on page 5 lines 22-31, is unclear as to  
            the application of successor in interest status as on page 7,  
            lines 27-40 and page 8, lines1-5 is a definition of "successor  
            in interest" that is broader than the "criteria" of a  








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            successor in interest that occurs back on page 5.  This  
            language is not limited to those residing in the home and  
            could include children or grandchildren that no longer live in  
            the home or that may have never lived in the home due to  
            various family circumstances.  This further exacerbates the  
            ability of competing to successors not even living in the home  
            to create confusion regarding the mortgage and the property.   
            Therefor the committee may wish to recommend using the  
            "criteria" for a successor interest as the definition of those  
                                                                             covered by this bill.  The revised definition below also  
            includes those parties that are currently considered for loan  
            assumption under mortgage servicer investor guidelines, as  
            discussed in more detail later in this analysis.  



            To create clarity on this issue the following amendments are  
            necessary:



             a)   Strike the successor in interest criteria on page 5,  
               lines 22-31.

             b)   Revise definition of "successor in interest" by striking  
               lines, 31-40 on page 7, and lines 1-5 on page 8 and then on  
               page 7, line 30, after "following" insert,  The spouse,  
               domestic partner, parent, grand-parent, adult child, or  
               adult grandchild, or adult sibling of the deceased  
               borrower, who occupied the property as his or her principal  
               residence within the last six continuous months prior to  
               the  deceased borrower's death


              
          3)Once a person is deemed a successor in interest, which happens  
            upon the claimant presenting "reasonable documentation" that  
            is not subject to review, the servicer must allow the  
            successor to assume the deceased borrower's loan.  The bill is  








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            drafted in such a way that this assumption is required without  
            a determination of whether the successor in interest can  
            afford the mortgage which could facilitate the transfer the  
            mortgage to someone with no ability to repay the mortgage or  
            ability to qualify for a mortgage loan modification.  Fannie  
            Mae and Freddie Mac are the investors for well over 60% of the  
            residential mortgage market.  Their servicing guidelines,  
            which must be followed by mortgage loan servicers servicing  
            Fannie Mae and Freddie Mac specify that if a transferee, in  
            this case a successor in interest, wishes to assume the  
            mortgage loan they must determine the credit worthiness of  
            transferee (Section 8406.4 of the Single Family  
            Seller/Servicing Guide).  Under these guidelines a protected  
            transferee as established in Garn-St. Germain may continue to  
            pay on the existing loan without assuming the loan which would  
            not trigger a requirement to determine credit worthiness as  
            the transferee is paying on the loan without assuming the  
            underlying debt.  However, the guidelines are clear that in  
            order to assume the loan credit qualification is necessary.   
            The committee is also in receipt of a letter dated May 30th,  
            2016 from the general counsel of the Federal Housing Finance  
            Agency, currently the conservator for Fannie Mae and Freddie  
            Mac that provides, "Servicers must not impose credit  
            qualifying criteria on the transferee unless the new owner  
            desires to assume the loan or seek loss mitigation?(emphasis  
            added)"



            Therefor the committee may wish to consider the following  
            changes to the language on page 5, lines 1-13:



             a)   Strike lines 1-13 on page 5 and insert the following:

             (1) Assume the deceased borrower's loan subject to an  
            evaluation of the creditworthiness of the successor in  
            interest consistent with the appropriate investor requirements  








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            and guidelines. 


            (2)  If the successor in interest qualifies for the  
            foreclosure prevention alternative, the servicer shall allow  
            the successor in interest to assume the loan subject to an  
            evaluation of the creditworthiness of the successor in  
            interest consistent with the appropriate investor requirements  
            and guidelines.


             (3) Where a successor in interest of an assumable loan also  
            seeks a foreclosure prevention alternative, the mortgage loan  
            servicer shall allow the successor in interest to  
            simultaneously apply to assume the loan and for a foreclosure  
            prevention alternative that is offered by the mortgage loan  
            servicer.


             This language provides additional points of clarification  
            necessary to ensure appropriate loan assumption.  In order for  
            a borrower, or in this case a successor in interest to be  
            considered for a loan modification they must present  
            documentation of some economic distress, whether temporary or  
            long-term and the ability to afford a modified mortgage loan  
            payment.  For example, HOBR, under Civil Code 2920.5 provides  
            that a "borrower" for consideration of the protections  
            provided under HOBR is considered someone "potentially  
            eligible" for a loan modification under certain circumstances.  
             The current version of SB 1150 is not clear that the  
            successor in interest seeking loss mitigation must be  
            potentially eligible.  The amendments in sub a) above clarify  
            this by including the language "If the successor in interest  
            qualifies?"  This will ensure that a mortgage loan servicer is  
            not required to provide a loan modification to someone who  
            does not qualify for a modification. 


           Prior and Related Legislation:   








                                                                    SB 1150


                                                                    Page  28






          AB 244 (Eggman), 2015:  Would have included successors in  
          interest, as defined, within the HBOR definition of borrower and  
          thus provided those successors with all of the rights that  
          borrowers possess under that law.  Never taken up by its author  
          in the Assembly Banking & Finance Committee.

          AB 278 (Eng et al., Chapter 86, Statutes of 2012) and SB 900  
          (Leno et al., Chapter 87, Statutes of 2012):  Enacted  
          comprehensive mortgage loan servicing reforms, established  
          mortgage loan borrower protections, and modified California's  
          nonjudicial foreclosure process.  Although certain provisions  
          sunset on January 1, 2018, the majority remain in force past  
          that sunset date.

          SB 7 (Corbett), Chapter 4, 2009-2010 Second Extraordinary  
          Session, and AB 7 (Lieu), Chapter 5, 2009-2010 Second  
          Extraordinary Session:  Required mortgage loan servicers that  
          lacked comprehensive mortgage loan modification programs, as  
          defined, to wait an additional 90 days before recording a notice  
          of sale on mortgages or deeds of trust, which were recorded from  
          January 1, 2003 to January 1, 2008, and were secured by  
          single-family, owner-occupied residential real property.
           
           SB 1137 (Perata), Chapter 69, Statutes of 2008:  Established the  
          contact requirements summarized in Existing Law 1a.  Sunset on  
          January 1, 2013 (though its provisions were extended  
          indefinitely through enactment of HBOR).





          REGISTERED SUPPORT / OPPOSITION:




          Support








                                                                    SB 1150


                                                                    Page  29







          California Alliance for Retired Americans (CARA) - Co-sponsor


          California Reinvestment Coalition (CRC) - Co-sponsor


          Housing and Economic Rights Advocates (HERA) - Co-sponsor


          AARP California


          AIDS Legal Referral Panel (ALRP)


          Alameda County Board of Supervisors


          Bay Area Legal Aid (BayLegal)


          Burbank Housing Development Corporation


          California Attorney General 


          California District Attorneys Association (CDAA)


          California Nurses Association


          California Professional Firefighters (CPF)


          California Rural Legal Assistance, Inc. 








                                                                    SB 1150


                                                                    Page  30







          California State Council of the Service Employees International  
          Union (SEIU)


          CALPIRG


          Capitol Impact Partners


          Center for California Homeowner Association Law (CCHAL)


          Center for Responsible Lending (CRL)


          Central Valley Realtist Board (CVRB)


          Community Legal Services in East Palo Alto


          Consumer Attorneys of California


          Consumer Federation of California (CFC)


          Consumers Union


          County of Alameda


          Courage Campaign










                                                                    SB 1150


                                                                    Page  31





          Fair Housing Council of San Fernando Valley Council


          Fair Housing of Marin


          Family Caregiver Alliance


          Housing California


          Inland Fair Housing and Mediation Board (IFHMB)


          Institute on Aging Elder Abuse Prevention Program


          Justice in Aging


          Law Foundation of Silicon Valley


          Legal Aid Foundation of Los Angeles (LAFLA)


          Legal Services of Northern California (LSNC)


          Los Angeles County Consumer & Business Affairs (DCBA)


          Los Angeles County Democratic Party (LACDP)


          Montebello Housing Development Corporation (MHDC)










                                                                    SB 1150


                                                                    Page  32





          National Center for Lesbian Rights (NCLR)


          National Council of La Raza (NCLR)


          National Housing Law Project


          Nehemiah Corporation of America


          Neighborhood Housing Services of Los Angeles County (nhs)


          NeighborWorks Homeownership Center Sacramento Region


          Non-Profit Housing Association of Northern California (NPH)


          Peoples' Self-Help Housing


          Project Sentinel


          Public Counsel


          Public Law Center (PLC)


          Renaissance Entrepreneurship Center


          Retired Public Employees Association (RPEA)










                                                                    SB 1150


                                                                    Page  33





          Rural Community Assistance Corporation (RCAC)


          Shalom Center for T.R.E.E. of Life


          Tenants Together


          The Arc


          Unite Here


          United Cerebral Palsy California Collaboration


          United Domestic Workers of America - AFSCME local 3930


          Valley Economic Development Center (VEDC)


          Valley Industry and Commerce Association (VICA)


          Western Center on Law & Poverty


          1 Individual




          Opposition


          American Securitization Forum








                                                                    SB 1150


                                                                    Page  34







          California Bankers Association


          California Building Industry Association


          California Business Roundtable


          California Chamber of Commerce


          California Citizens against Lawsuit Abuse


          California Community Banking Network 


          California Financial Services Association


          California Land Title Association


          California Mortgage Association


          California Mortgage Bankers Association


          Civil Justice Association of California 


          Consumer Mortgage Coalition


          Securities Industry and Financial Markets Association








                                                                    SB 1150


                                                                    Page  35







          United Trustees Association




          Analysis Prepared by:Mark Farouk / B. & F. / (916)  
          319-3081