BILL ANALYSIS                                                                                                                                                                                                    Ó



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          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  








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          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  








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          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  








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            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:









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             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.










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          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  








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            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.   








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            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.)








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          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.  
                








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             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  








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               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.












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               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  








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               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  








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          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  








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          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  








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          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.)   








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          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  








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          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  








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          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.


          








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          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.













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                                                                    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  








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          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.













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                                                                    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








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                                                                    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)










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                                                                    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








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                                                                    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








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                                                                    Page  29







          Securities Industry and Financial Markets Association


          United Trustees Association




          Analysis Prepared by:Anthony Lew / JUD. / (916)  
          319-2334