BILL ANALYSIS Ó SB 1150 Page 1 Date of Hearing: June 28, 2016 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair SB 1150 (Leno) - As Amended June 23, 2016 As Proposed to be Amended SENATE VOTE: 21-14 SUBJECT: MORTGAGES AND DEEDS OF TRUST: MORTGAGE SERVICERS AND LENDERS: SUCCESSORS IN INTEREST KEY ISSUE: IN ORDER TO HELP KEEP A FAMILY IN THEIR HOME AFTER THE DEATH OF THE HOMEOWNER, SHOULD THE IMPORTANT PROTECTIONS ENACTED BY the LEGISLATURE IN the HOMEOWNERS' BILL OF RIGHTS BE EXTENDED TO THE SURVIVING SPOUSE, A CHILD, OR OTHER INDIVIDUALS WHO RESIDE IN the HOME AND WHO may QUALIFY AS A SUCCESSOR IN INTEREST, AS SPECIFIED? SYNOPSIS In 2012, the Legislature enacted and the Governor signed the Homeowners' Bill of Rights (HBOR), landmark legislation that provided important due process protections to homeowners and established rules and procedures to facilitate communication between mortgage servicers and borrowers regarding options for SB 1150 Page 2 borrowers to avoid foreclosure. According to the author, however, the law is not working as well as it should because banks and loan servicers commonly refuse to extend the protections of HBOR to surviving spouses and other successors in interest. Proponents of the bill, representing a broad coalition of consumer advocates, housing advocates, labor unions, legal aid providers, and the Attorney General's office, report that the shortcomings of the HBOR typically arise when a family member who is the sole borrower named on a home loan passes away. A surviving family member, often a widow or widower, who wishes 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 when the surviving family member has a legal property interest in the home. To address this problem and prevent unnecessary foreclosures, the bill seeks to clarify the responsibilities of a lender when a borrower dies leaving a surviving homeowner who wishes to assume the loan. This bill would address the lack of remedies under HBOR for such individuals by authorizing a successor in interest, as defined, to receive information about a deceased borrower's mortgage loan, assume the loan in certain circumstances, and utilize HBOR's foreclosure prevention tools. The protections contained in this bill are enforceable by a private right of action to successors in interest modeled on the private right of action afforded to homeowners under HBOR. After extensive negotiations with opponents of the bill, led by mortgage servicers and bankers, the author has proposed several amendments to be taken in this Committee that do the following: (1) require the successor in interest to be a person currently living in the residence; (2) clarify conditions for assumption of the loan, including a creditworthiness check of the proposed SB 1150 Page 3 successor in interest; and (3) clarify the operative date of the bill's safe harbor provisions, pending the date that expected new federal regulations by the Consumer Financial Protection Bureau (CFPB) become effective. At the time of this analysis, there was not yet mutual agreement on proposed amendments to address the concern of servicers that the bill inadequately informs the servicer how to comply with the law when there are multiple successors in interest. After much discussion of the issue, both sides have committed to continue working together on potential amendments should the bill move forward. This bill previously was approved by the Assembly Banking Committee by an 8-2 vote after the author agreed to several amendments requested in that Committee. SUMMARY: Extends existing protections in the Homeowners Bill of Rights to successors in interest, as defined, when certain conditions are satisfied. 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: 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 SB 1150 Page 4 reasonable documentation of the claimant as successor in interest the claimant shall be deemed a "successor in interest." 3)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 the spouse, domestic partner, joint tenant as evidenced by grant deed, parent, grandparent, adult child, 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 and currently resides in the property. 4)Allows for more than one successor in interest and requires a servicer to apply the provisions of this bill to multiple successors in interest. 5)States that an affirmative duty is not on a servicer to provide a loan modification to a successor in interest, and 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, within 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, 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: SB 1150 Page 5 a) Apply to assume the deceased borrower's loan. The servicer may evaluate the creditworthiness of the successor in interest subject to applicable investor requirements and guidelines. b) If a successor in interest of an assumable loan also seeks a foreclosure prevention alternative, simultaneously apply to assume the loan and for a foreclosure prevention alternative that may be offered by, or available through, the mortgage loan servicer. c) If the successor in interest qualifies for the foreclosure prevention alternative, assume the loan. The servicer may evaluate the creditworthiness of the successor in interest subject to applicable investor requirements and guidelines. 8)Provides that a successor in interest shall have all the rights and remedies available under the California Homeowner Bill of Rights (HBOR). 9)Provides that 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. 10)Provides that 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. SB 1150 Page 6 11)Allows a prevailing successor in interest to be awarded reasonable attorney's fees and costs. Clarifies that a successor in interest is considered to be prevailing if they have obtained injunctive relief or damages. 12)Makes a servicer not liable for a violation that it has corrected and remedied prior to recordation of the trustee's deed upon sale. 13)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. 14)Identifies the specific documents that are sufficient to constitute "reasonable documentation" for different types of successors in interest, and allows that if they are not available then "reasonable documentation" may include other written evidence of the person's status as a successor in interest. 15)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. 16)Provides that any mortgage servicer, mortgagee, or beneficiary of the deed of trust, or an authorized agent thereof, who, with respect to the successor in interest or person claiming to be a successor in interest, complies with SB 1150 Page 7 the relevant provisions regarding successors in interest of Part 1024 of Title 12 of the Code of Federal Regulations (12 C.F.R. Part 1024), known as Regulation X, and Part 1026 of Title 12 of the Code of Federal Regulations (12 C.F.R. Part 1026), known as Regulation Z, including any revisions to those regulations, shall be deemed to be in compliance with this bill. 17)Clarifies that the safe harbor described above in Item 16) does not become operative until the effective date of any revisions to the relevant provisions regarding successors in interest of Regulation X and Regulation Z, issued by the Consumer Financial Protection Bureau that revise the Final Servicing Rules in 78 Federal Register 10,696, of February 14th, 2013. 18)Exempts from its provisions a successor in interest who is engaged in a legal dispute over the property that is security for the borrower's outstanding mortgage loan and has filed a claim raising this dispute in a legal proceeding. EXISTING LAW, the Homeowners' Bill of Rights (HBOR), generally provides guidelines to facilitate communication between mortgage servicers and borrowers regarding options for borrowers to avoid foreclosure. Pursuant to the HBOR, the following rules apply to servicers with respect to first-lien mortgages secured by owner-occupied principal residences containing one- to four-dwelling units: 1)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 Sections 2923.5 and 2923.55. SB 1150 Page 8 All further references are to this Code unless otherwise stated.) 2)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.) 3)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.) 4)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 2924.10.) 5)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 submitted. (Sections 2924.10. and 2924.11.) SB 1150 Page 9 6)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 2924.17.) 7)Servicers must assign a single point of contact (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.) 8)Creates a private right of action that authorizes borrowers to bring judicial actions against servicers to enforce the aforementioned provisions. Specifically: a) 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 rise to the action for injunctive relief. SB 1150 Page 10 b) 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: As currently in print this bill is keyed non-fiscal. COMMENTS: In 2012, the Legislature enacted and the Governor signed the Homeowners' Bill of Rights (HBOR), a landmark package of legislation that provided important due process protections to homeowners and established rules and procedures to facilitate communication between mortgage servicers and borrowers regarding options for borrowers to avoid foreclosure. According to the author, however, the law is not working as well as it should because banks and loan servicers commonly refuse to extend the protections of HBOR to surviving spouses and other so-called "successors in interest." As specified, this bill would extend existing protections in the Homeowners Bill of Rights to successors in interest, as defined, and clarify the responsibilities of a lender when a borrower dies leaving a surviving homeowner who wishes to assume the loan. 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 SB 1150 Page 11 attended to the new homeowner protections. HBOR helps stabilize families, neighborhoods, and local economies. However, there's more to be done. 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. 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. SB 1150 Page 12 SB 1150 clarifies the responsibilities of a lender when a borrower dies leaving a surviving homeowner who wishes to assume the loan. This bill would address the lack of remedies under HBOR for such individuals by authorizing a successor in interest, as defined, to receive information about a deceased borrower's mortgage loan, assume the loan in certain circumstances, and utilize HBOR's foreclosure prevention tools. In support of the bill, the California Alliance for Retired Americans (CARA) writes to explain the most common shortcoming under HBOR that arises, and that the bill is intended to address: 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. Without the right to basic information about the loan, and the right to be considered for a loan modification and a simultaneous loan assumption, family members are being unfairly foreclosed upon and forced from their homes during a difficult time in their lives. 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 SB 1150 Page 13 loan, even 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 bill would extend existing protections in HBOR to help protect unnecessary foreclosures against qualified successors in interest. 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 Notice of Default (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 SB 1150 Page 14 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. 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. Like the HBOR, this bill extends a similar private right of action to a successor in interest. In order to incentivize servicers to comply with the law, HBOR provides powerful consumer remedies, including a private right of action and statutory damages. This bill would extend these same protections to successors in interest, as defined and under certain conditions. Under this bill, successors will be able to obtain basic information about the status of a decedent's loan, assume the loan subject to applicable investor requirements and guidelines, and, if necessary, seek a loan modification using all the tools provided under HBOR. These protections are all enforceable by a private right of action to successors in interest modeled on the private right of action given to homeowners under HBOR. Opponents characterize the private right of action as "draconian" and contend that it "will lead to unnecessary litigation as parties pursue court action as a means to clarify the law." In response the author simply notes that the objective of this bill is to extend existing HBOR protections to successors in interest, including the existing private right of action, and to exclude the private right of action from this SB 1150 Page 15 bill would potentially create a perverse two-tiered system where original homeowners could avail themselves of HBOR, but their successors in interest could not for exactly the same protections. Proposed amendment to narrow definition of "successor in interest." The bill was recently amended to define a 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 the spouse, domestic partner, joint tenant as evidenced by grant deed, parent, grandparent, adult child, 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." Opponents of the bill, led by the California Bankers Association, contend that even this definition is too broad and unacceptably allows a person who does not reside at the home to become a successor in interest and seek a modification of the loan for the purposes of making the home a more attractive investment property. Although the successor would have to have lived at the home for the previous six months before the death of the homeowner, the opponents contend, there is no requirement that the person currently live at the residence while seeking better loan terms; he or she could move out and use the HBOR to his or her benefit with the intent of renting out the home. Opponents state, "Application to potential investment property for the successor in interest is a significant departure from the existing law and defeats a threshold principle of focusing on avoiding foreclosure on owner-occupied, principal residences." Accordingly, the author now proposes to amend the bill to further narrow the definition of "successor in interest" to SB 1150 Page 16 require the person to currently reside in the property. By doing so this amendment shrinks the pool of people who potentially qualify as a successor-in-interest to only relatives or joint tenants who lived in the house for at least six months before the death of the borrower and who continue to reside in the house currently. As this amendment was suggested by the opponents, it is believed sufficient to address their concerns on the definition of successor in interest. Proposed amendment to clarify the creditworthiness check for assumption of the loan. The bill was recently amended to provide that the mortgage servicer shall allow a successor in interest to assume the deceased borrower's loan subject to an evaluation of the creditworthiness of the successor in interest, consistent with the appropriate investor requirements and guidelines. These amendments were necessary to ensure that the bill complies with Section 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, such as SB 1150. As recently amended, the servicer may evaluate the creditworthiness of the successor in interest before making a credit decision to allow assumption of the loan. Proposed amendments to the bill make technical revisions to those recent amendments to further clarify that the servicer may evaluate the person's creditworthiness subject to the applicable investor requirements and guidelines (i.e. Fannie Mae and Freddie Mac guidelines); however, this evaluation is not intended to be performed at the discretion of the servicer, but rather when the investor requirements call for it to be done (which is assumed to be true in the vast majority of cases.) SB 1150 Page 17 Proponents of the bill are concerned that, unless clarified, the previous set of amendments may be interpreted to allow a creditworthiness check that would not otherwise be conducted. The proposed amendments are believed to address those concerns; in addition, they reorganize the paragraphs and acknowledge that the successor in interest can apply for foreclosure prevention alternatives that are not strictly "offered by" the servicer (e.g. offered by a government agency.) Such a program would, however, still be "available through" the servicer. Proposed amendments clarifying application of the safe harbor provisions. 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 SB 1150 Page 18 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 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." Opponents of the bill state that they believe this bill to be fundamentally premature given pending regulations being promulgated by the federal Consumer Financial Protection Bureau (CFPB) which, as described above, address similar underlying issues about successors in interest as this bill. This bill was recently amended to include a safe harbor provision intended to eliminate a situation where loan servicers may be caught between conflicting provisions of this bill and the prospective CFPB regulations that are reportedly going to be published later this summer. The opposition states: "If there are deficiencies in the published regulations, we welcome a legislative opportunity SB 1150 Page 19 to discuss further refinements, if necessary." Proponents of the bill wish to clarify that under the safe harbor language, as recently amended into the bill, a servicer is deemed to comply with this bill if it complies with the applicable regulations (known as Regulations X and Z) not generally over a period of time, but rather comply with the regulations specifically with respect to the individual successor in interest, or person claiming to be the successor in interest. Proposed amendments to the bill make this clarification. In addition, proponents note that the timing of the forthcoming CFPB regulations is still an uncertainty, and they may come out later than this summer or perhaps not at all under unforeseen circumstances. In such a case, the entirety of this bill would be mooted by the current safe harbor clause because compliance with the existing 2013 regulations (which are much less robust than the proposed new regulations) would be deemed compliance with this bill. Therefore, they seek an amendment to clarify that the safe harbor shall not become operative until the effective date of any revisions to the relevant provisions regarding successors in interest of Regulation X and Regulation Z. Unless and until new CFPB regulations go into effect, there is no potential conflict to resolve and therefore no need for a safe harbor provision until that point. Proposed author's amendments now clarify this rule regarding the operative date of the safe harbor provisions. SB 1150 Page 20 Efforts to develop rules for handling multiple successors in interest. As currently in print, the bill states that there may be more than one successor in interest and provides that "a mortgage servicer shall apply the provisions of this section to multiple successors in interest in accordance with the terms of the loan and federal and state laws and regulations." Opponents of the bill contend that the bill fails to adequately inform the servicer what is necessary to comply with the law when there are multiple successors in interest. They state: As drafted, the measure mandates that a mortgage servicer negotiate with more than one successor in interest. And while the measure contemplates multiple successors approaching a mortgage servicer, the measure offers no clarity on how to manage such scenarios. Accordingly, the measure may inappropriately circumvent a necessary judicial process by forcing a mortgage servicer into a situation normally left to a probate court when attempting to settle an estate. In order to comply, should the mortgage servicer work with the first successor in interest or a subsequent successor? 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? These are just a few of the questions for which answers have not been provided. SB 1150 Page 21 In response, the author states: Servicers already face these situations - when a homeowner leaves his or her home to two or more children/people - and should have policies in place to address them. Nothing in SB 1150 will change the frequency of these cases. Additionally, because Fannie Mae, Freddie Mac, and the Federal Housing Administration currently require the types of communication included in SB 1150, servicers should already know how to communicate with multiple successors and allow them to assume the loan. Put another way, any servicer that does not have a "multiple successors" policy in place is in violation of existing federal rules [such as] CFPB Bulletin 2013-12. Opponents counter that suggestions that the servicer should do what they may already be required to do under existing policies and procedures is an insufficient response, and the bill should be clearer on what constitutes compliance. The Committee notes that the bill was recently amended to provide that the bill does not apply when there is a successor in interest who is engaged in a legal dispute over the property that is security for the borrower's outstanding mortgage loan and has filed a claim raising this dispute in a legal SB 1150 Page 22 proceeding. In other words, there is no multiple successor in interest problem for the servicer to deal with when there is a legal dispute between the possible successors in interest. Only disputes that do not rise to the level of becoming a legal dispute are now at issue. Additionally, the author's proposed amendment to narrow the definition of "successor in interest" to require the person to currently reside in the property should help alleviate some of the opposition's concerns because it further reduces the likelihood of a multiple successor in interest problem. Under this proposed amendment, the pool of people who could possibly be considered a successor in interest includes only those people currently living in the home and who are most likely related-perhaps making a mutually acceptable resolution more likely. At the time of this analysis, there was not yet an agreement on proposed amendments to address the issue of multiple successors in interest. After much discussion of the issue, both sides have committed to continue working on potential amendments should the bill move forward. It is also possible that the CFPB regulations are published this summer before potential amendments to this bill would have to be finalized, so a mutual agreement to keep working on amendment language going forward is a reasonable course of action. SB 1150 Page 23 REGISTERED SUPPORT / OPPOSITION: Support 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 Kamala Harris California District Attorneys Association (CDAA) California Nurses Association SB 1150 Page 24 California Professional Firefighters (CPF) California Rural Legal Assistance, Inc. 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 SB 1150 Page 25 County of Alameda Courage Campaign 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) SB 1150 Page 26 Los Angeles County Democratic Party (LACDP) Montebello Housing Development Corporation (MHDC) 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) SB 1150 Page 27 Renaissance Entrepreneurship Center Retired Public Employees Association (RPEA) 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 Opposition SB 1150 Page 28 American Securitization Forum 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 SB 1150 Page 29 Securities Industry and Financial Markets Association United Trustees Association Analysis Prepared by:Anthony Lew / JUD. / (916) 319-2334