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Circuit Court of Cook County Mortgage Foreclosure Mediation Program Homeowner’s Attorney Training Eric Sutton Supervising Attorney, Foreclosure Mediation.

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Presentation on theme: "Circuit Court of Cook County Mortgage Foreclosure Mediation Program Homeowner’s Attorney Training Eric Sutton Supervising Attorney, Foreclosure Mediation."— Presentation transcript:

1 Circuit Court of Cook County Mortgage Foreclosure Mediation Program Homeowner’s Attorney Training Eric Sutton Supervising Attorney, Foreclosure Mediation Program

2 CVLS Contact Information Patricia Nelson, Director of Foreclosure Mediation Program 312-332-5539; Eric Sutton, Supervising Attorney 312-332-8239; Allegra Fischer, Staff Attorney 312-332-1687; Ashley Griffith, Staff Attorney 312-332-1916; Keri Lindsay, Staff Attorney 312-332-6434; Daniel Santrella, Foreclosure Mediation Administrator 312-332-7546; Matthew Maliawco, Foreclosure Mediation Paralegal 312-332-7546;

3 Chicago Volunteer Legal Services CVLS – Funded in 1964 – Over 2,900 volunteers – In 2011, CVLS provided free legal services to 18,577 low income people in the Chicago area – Work from a small staff – leverage resources with volunteers model – Our job is to support YOU so that you have a good volunteer experience and in turn our clients get excellent quality representation

4 2 Possible Components to CVLS assistance for homeowners 1. Mediation - CVLS is automatically appointed by the court, and we accept all cases - no income caps - just for mediation – no court or litigation 2. Access to Justice - Court appointed by the Chancery Division - CVLS income caps apply – we do not accept every case - Full legal representation for litigation - Possible representation for foreclosure cases that do not settle in mediation

5 General Program Info - Program Participants - Circuit Court of Cook County - Center for Conflict Resolution (CCR) - Chicago Legal Clinic (CLC) - Illinois Housing Development Authority (IHDA) - Funded by Cook County Board through the Chicago Bar Foundation - Began with cases filed after April 11, 2010 - Can be granted for cases filed prior but borrower won’t automatically have the information to enter the program

6 Who is eligible to participate in the program? - No income caps - Defendant must live in the property - Single family home or building with 4 or less units - Should have an Appearance and Answer filed - Must have met with an HUD-approved housing counselor

7 Court Process for Mediation Opt in program – not automatic – tries to ensure you have engaged clients Summons w/ Hotline Number: 877-895-2444 HUD Counselor – provided by IHDA - Retention v Relinquishment Counseling - Assist with Modification Applications or other document submission Volunteer Attorney – provided by CLC - Screens for basic legal issues - Assists in filing Appearance and Answer - Motion for Mediation or Access to Justice Attorney – homeowner presents motion themselves – at judge’s discretion

8 8 Court Process for Mediation: Case Managers Case Managers assigned to each case management call. Court officers, and will not provide legal advice. Court refers Defendants interested in negotiating settlement to Case Manager Case Manager oversees communications between parties Court decides whether to refer case to mediation based in part on Case Manager report 8

9 Court Process for Mediation Mediation Referral Order - Mediation issues are primarily pursuant to Order - Plaintiff and Client contact information - Post-Mediation status date – you are not required to attend – talk to your support attorney if you think it’s necessary Notice of Mediation from CCR - Dates & Times of Mediations - 45 days before mediation – plaintiff to send payoff and reinstatement, and status of current loss mitigation - 10 Day Summary & Updated Financials

10 Default Foreclosure Timeline January – March Pre-Complaint: 3 missed payments AprilComplaint: Filed Late AprilJurisdiction: Service JuneCase Mgmt Date: No Appearance filed JulyMotion for Default Judgment entered NovemberSale: No notice if default DecemberSale Confirmed: OP stayed for 30 days

11 Contested Foreclosure Timeline January – March Pre-Complaint: 3 missed payments AprilComplaint: Filed Late AprilJurisdiction: Service JuneCase Mgmt Date: No Appearance filed JulyMotion for Default Judgment: Borrower appears and requests time to file Appearance & Answer. Judge grants 30 days

12 Contested Foreclosure Timeline AugustBorrower files Appearance & Answer Late AugustBorrower issues Discovery to Lender Late AprilJurisdiction: Service NovemberLender partially responds to Discovery DecemberBorrower sends 201(k) letter January, 2011 Lender complies w/ Discovery

13 Contested Foreclosure Timeline FebruaryMotion for Summary Judgment: Borrower requests Briefing Schedule (28 days to Respond, 14 to Reply) and Hearing Date MaySummary Judgment entered – sale cannot take place for 90 days SeptemberSale OctoberConfirmation of Sale, OP stayed for 30 days NovemberBorrower must relinquish possession of property

14 What are we mediating? 2 categories of resolution – Retention – Relinquishment Overall goals – Ensuring adherence to government programs – Ensuring an end to endless submission of documents - Ensuring fair treatment and no bullying

15 Retention Options Borrower Remains in the Property HAMP Loan Modification Non-HAMP Loan Modification Forbearance Repayment Chapter 13 Bankruptcy Hardest Hit Funds

16 What is HAMP? Home Affordable Modification Program (Making Home Affordable - MHA) Servicers get monetary incentives for modifications made under the plan Participating servicers supposed to screen everybody, subject only to investor limits Those servicers receiving ongoing TARP money must modify loans under HAMP

17 Where is there Guidance? No regulations or statute Guidance – Previously - Non-Fannie and Freddie: Supplemental Directives (SD), Model Forms & FAQs ( ) – Now – MHA Handbook (found at Supercedes SD’s and FAQ’s Except – provisions not incorporated in handbook – SD still applies – Fannie Mae: Announcements ( ) – Freddie Mac: Bulletins ( – FHA: previously - Mortgagee letters ( »Now – incorporated in MHA Handbook

18 Other Helpful Resources Websites: – – Binder of MHA handbook at mediation centers If Binder is not in the room and you need it in mediation, ask the receptionist – they are removed every night

19 HAMP Basic Concepts Payments reduced to 31% of gross monthly income – by reducing the interest rate, extending the term, and possibly deferring or forgiving principal Modification results in a positive Net Present Value (NPV) for investors Investors and servicers get financial incentives from government Trial modification followed by permanent modification

20 Three Step Process Step 1 - Loan must be eligible Step 2 - Borrower must be eligible Step 3 - Borrower must qualify – Waterfall Analysis – NPV test

21 Step 1 – Loan Eligibility All Fannie Mae/Freddie Mac (GSE) loans covered – HAMP is mandatory – Search engines online to see if either owns the loan Non-GSE loans – servicers, not investors choose to participate – List with contact information available online - – Applies to operating subsidiaries/affiliates – Servicer Participation Agreement (SPA) available online –

22 Step 1 – Loan Eligibility Can Investors Forbid HAMP mods? – If investor forbids modification, servicer must request waiver – Supp. Dir. 09-01: servicers required to use “reasonable efforts” to get approval - Supp. Dir. 10-02: servicers required to provide list to Treasury of investors not participating in HAMP and to contact each in writing at least 1x to encourage participation - Push back on this issue – insist on seeing something in writing that the servicer did towards reasonable efforts - Ask for Pool ID number – it is possible to look at investor’s pooling and service agreement online – SEC website (difficult to navigate) - Possible confidentiality issues - Option to escalate – see page 36 of HAMP Manual

23 Step 1 – Loan Eligibility HAMP Tier 2 - Servicers have the option to sign onto the expanded HAMP guidelines - Eligibility may be determined on a case-by-case basis

24 Step 2 – Borrower Eligibility Income Eligibility Current monthly mortgage payment including PITIA (principal, interest, taxes, insurance, association fees) must be greater than 31% of monthly gross income Servicers who deny because current payment is <31% of gross income may not have included association fees

25 Step 2 – Borrower Eligibility Borrower in Bankruptcy As of June 1, 2010 – are eligible for HAMP – Borrowers in an active chapter 7 or chapter 13 bankruptcy case must be considered for HAMP if the borrower, borrower’s counsel or bankruptcy trustee submits a request to the servicer. – Borrowers may not be denied a permanent HAMP modification on the basis of a bankruptcy filing. Supp. Dir. 10-02 »BUT – filing BK puts an automatic stay on the mediation

26 Step 2 – Borrower Eligibility Loan Eligibility Loan must be: – First lien originated on or before January 1, 2009 Home equity loans eligible if loan is first or only lien on property – Unpaid principal balance cap 1 unit: $729,450 2 unit: $934,200 3 unit: $1,129,250 4 unit: $1,403,400 – Not previously modified under HAMP

27 Step 3 – Borrower Qualification Target Payment = 31% of Gross Income Income – what’s included? – Can include income for non-borrower household members. – Can include income for non-resident borrowers, so long as one borrower uses property as primary residence. – Net income gets multiplied by 125% – Rental income gets multiplied by 75% – Unemployment income is not eligible – If self-employed, profit and loss statement without other documentation suffices – Borrower DOES NOT have to disclose child support or alimony Must be able to document monthly income There is no income amount that is barred. However, a borrower’s income may be too low or too high for a HAMP mod – Too low and the borrower will fail the NPV test – Too high and current payment may already be at or under 31%

28 Step 3 – Borrower Qualification Waterfall Analysis Target payment – PITIA 31% of gross monthly income Waterfall Analysis – Capitalize costs and arrearages (no late fees) – Reduce interest rate – as low as 2% – Amortization term extended to 40 years – Principal deferral – Alternative principal forgiveness if loan to value (LTV) is >115% Servicers will only take steps necessary to get payment to target amount Deferral is uncommon, although possible. Forgiveness is extremely rare

29 Step 3 – Borrower Qualification - HAMP Tier 2 Basic requirements of Tier 1: origination date on or before January 1, 2009, documented hardship, one to four-unit property, unpaid principal balance limitations and not condemned. The borrower is evaluated for HAMP Tier 1 following June 1, 2012 but fails to satisfy the eligibility requirements for a HAMP Tier 1 modification or underwriting requirements for a HAMP Tier 1 modification. The borrower was evaluated for, but not offered, a HAMP modification prior to June 1, 2012. The borrower had a payment default on a HAMP Tier 1 trial period plan entered into before or after June 1, 2012. The borrower lost good standing under a HAMP Tier 1 permanent modification entered into before or after June 1, 2012 and, at the time of evaluation for HAMP Tier 2, at least 12 months have passed since the HAMP Tier 1 modification effective date or the borrower has experienced a change of circumstance. The mortgage is secured by a rental property (described below).

30 Step 3 – Borrower Qualification Waterfall Analysis – Capitalizing Arrearages Principal debt will increase Capitalized arrearage includes: – Past due principal and interest – Escrow deficiencies/advances, though doesn’t have to be – lender will have paid taxes – Foreclosure costs – Servicing fees: property inspections, credit report fee CANNOT include: – Late fees: unpaid fees will be waived – Additional modification fees: no charge for HAMP

31 Step 3 – Borrower Qualification Waterfall Analysis – Interest Rate Reduction Reduced to as low as 2% for 5 years (to get to 31%) Can go lower, but incentives only paid down to 2% Increase at 1% after 5 years to lower of – Freddie Mac rate – Interest rate cap in note Once rate increases to cap, fixed for life of loan.

32 Step 3 – Borrower Qualification Waterfall Analysis – Increase Term of Loan If interest rate reduced to 2% and payment still not equal to or less than 31% of gross income, then increase term of loan to 40 years

33 Step 3 – Borrower Qualification Waterfall Analysis – Principal Forbearance or Reduction Forbearance (Deferral) – Limited to 30% of unpaid principal balance or 100% LTV – Treated as non-interest bearing balloon payment Reduction: – Required as of October 1, 2010 – Reduce principal if LTV is >115%

34 Step 3 – Borrower Qualification Net Present Value (NPV) Test Measures the benefit to the investor of a loan mod – Not servicer – Not borrower Weighs – Value of current payments – Value and probability of Foreclosure – Value of payments under a loan mod – Probability of another foreclosure after loan mod Positive NPV test= HAMP loan mod Negative NPV test—still possible to have a loan mod, but unlikely to qualify for HAMP.

35 Step 3 – Borrower Qualification Net Present Value (NPV) Test HAMP NPV test not public – In mediation, demand inputs – limited to some inputs – If litigating, should demand entire NPV in discovery – FDIC has comparable model online at – MHA has just released NPV model 5.0, but that is also not publicly available Servicers can generate their own NPV and use their own numbers for required inputs

36 Step 3 – Borrower Qualification Reasons for Failing NPV Test Current income stream on loan is high – Small likelihood of default (high FICO, low LTV, current, low DTI) Foreclosure looks attractive – High home value – Chance of cure is high Mod looks risky – Declining home prices – High chance of redefault Mod doesn’t generate enough income – Borrower’s income is so low that at 31%, the mod doesn’t generate enough income

37 Step 3 – Borrower Qualification HAMP Tier 2 Waterfall Analysis – Step 1 – Capitalization. The servicer capitalizes accrued interest, out-of-pocket escrow advances to third parties, and any required escrow advances – Step 2 - Interest Rate Adjustment. Fixed-rate based on the weekly Freddie Mac Primary Mortgage Market Survey (PMMS) Rate for 30-year fixed rate conforming loans, rounded up to the nearest 0.125 percent plus a risk adjustment expressed in basis points. In short, possibly more than 2%.

38 Step 3 – Borrower Qualification HAMP Tier 2 Waterfall Analysis (Cont.) – Step 3- Term Extension. Extend to 480 months – Step 4 - Principal Forbearance. If the loan’s pre- modification mark-to-market loan to value (LTV) ratio is greater than 115 percent, NPV 5.0 calculates principal forbearance in an amount equal to the lesser of (i) an amount that would create a post-modification mark-to-market LTV ratio of 115 percent using the interest bearing principal balance or (ii) an amount equal to 30 percent of the post-modified UPB of the mortgage loan (inclusive of capitalized arrearages). Unlike HAMP Tier 1 there is no excessive forbearance limit in HAMP Tier 2.

39 Step 3 – Borrower Qualification Additional Requirements – post-modification debt-to-income ratio must not be less than 25% or greater than 42% – modified monthly P&I payment must represent a reduction of at least 10 percent compared to the pre- modification monthly P&I payment in effect at the time of consideration for HAMP Tier 2 – HAMP Tier 2 post-modification P&I payment is at least 10 percent less than the monthly P&I payment that was payable under the HAMP Tier 1 trial period plan

40 Applying for HAMP “Should” be done by HUD counselor, and you should receive a complete package with your case – but some clients go to HUD counselors outside of the program – Some counselors aren’t as reliable as others (some are great) – Make contact with the HUD counselor one of the FIRST things you do – Ask plaintiff’s counsel if any other docs are needed the SECOND thing you do Submission of “Initial Package” triggers servicer’s duty to review for HAMP Regardless of the quality of the HAMP application from the counselor, you will need to send – 30 days most recent paystubs – 2 months most recent bank statements Documents need to be fairly current, or may be unusable (“staledated”)

41 Applying for HAMP What needs to be in a HAMP application Request for Modification (RMA) Separate free form hardship letter, signed and dated by all borrowers 4506T – tax certification form Last 2 years tax returns that have been filed Dodd-Frank certificate Proof of income – 30 days-worth of most recent paystubs for W-2 income – Lease, contribution letter, proof of deposits in bank statements – Profit and loss statement for self-employed (don’t need back up docs) Separate list of expenses – signed and dated Sometimes a servicer specific application (ask plaintiff’s counsel) Last 2 months bank statements – all pages, even if intentionally left blank, for all accounts. Printouts of online activity reports are not accepted »Recent utility bill – for proof of occupancy Forms are available at

42 Servicer Response Time 10 business days from receipt of Initial Package to acknowledge borrower’s request in writing. 30 calendar days from receipt to approve, deny, or request more information in writing If denied, 10 business days from determination to notify of denial in writing. Doesn’t happen in real life – but can point it out in mediation

43 Incomplete Information If more information needed: – Servicer must send written request to borrower that identifies specific information needed – Letter must allow 30 days to provide missing documents. – If still not returned, servicer must send 2 nd letter giving borrower 15 days to provide documents before denying application. – If still not provided, servicer will send Denial Notice that cites denial due to insufficient information to determine eligibility – If requested in mediation – ALL documents should flow through you directly to plaintiff’s attorney – do not accept a request to send directly to the servicer

44 If Approved Trial Period Plan – At least 3 months trial at proposed modified payment – Arrears will accrue during trial. Payments are held in suspense and only credited when equal to full monthly payment under note. – Will be reported to credit bureaus as either in default or making payments under a plan Will be converted to permanent modification upon completion of trial modification – additional docs and/or meeting with a housing counselor may be needed If fails trial period: no further HAMP mod. “1 bite at the apple.”

45 If Denied Written Notice must be sent to borrower within 10 days of determining HAMP modification denied. Must state why homeowner was denied Must describe alternative loss mitigation options If due to NPV, must offer opportunity to request NPV inputs

46 If Denied If denied based on NPV: notice will allow opportunity to request certain inputs (e.g. income, UPB) in 30 days (sale stayed) Servicer must provide inputs w/in 10 days of request Must review new borrower data, recalculate if likely to change outcome

47 FHA Loans HAMP considered last modification tool for FHA loans, rather than used as first option like Fannie/Freddie/non-GSE. Incentive payments now available for FHA-HAMP mods – Includes principal reduction payments to borrowers Mortgagee letters available at fm Mortgagee Letter 09-23 sets forth basic outline Be aware of other modification options available for FHA mortgages – See, e.g., Mortgagee Letter 09-35 (requiring that modifications reduce the base rate to the current market rate)

48 Retention Option Non HAMP, Traditional, In House Loan Modification - Same Terms to Modify: Interest, Term, Principal - Wise to use same Income Target: 31% of Gross… but can vary - Need to evaluate net income and actual expenses to determine how much borrower can actually afford to pay - Down payment: Anywhere from 20-50% of Arrearage - Defer Arrearage as Balloon Payment - Again, forgiveness is extremely rare

49 Retention Option Forbearance - Lender agrees to accept no (or reduced) payments for a specified period of time - Unemployed borrowers or those experiencing a temporary, finite loss of income - An option in mediation if all efforts towards loan modification fail and borrower wants to continue to try - Be sure to set time lines of what documents are required at the end of the forbearance to then be considered for a loan modification

50 Retention Option Repayment Plan and Reinstatement – Repayment Plan - Borrower pays arrearages (missed payments, attorney’s fees, lender’s costs, taxes paid on their behalf) over a period of time, usually 6-12 months - Borrower must make regular mortgage payment in addition to repayment amount - Unrealistic for most borrowers - Reinstatement - borrower pays full arrearages – including missed payments, attorney’s fees, lender’s costs, taxes paid on their behalf) - realistic for some borrowers who borrow the money from 401(k)

51 Retention Option Chapter 13 Bankruptcy - Stays foreclosure if filed before the sale - Borrower’s debt, including mortgage arrearages, consolidated and borrower makes monthly payment to trustee - Borrower must make regular mortgage payment as well - Last alternative – negative impact on credit - Talk to your support attorney if this is an option - CVLS has volunteer attorneys who can give advice and represent on this issue

52 Retention Option Hardest Hit Funds - Borrower applies to Illinois Housing and Development Agency (IHDA) - Up to $25,000 available for no-interest loan - Designed to assist when income decreases temporarily - Can be used to reinstate and to assist with payments - Only ripe for mediation when amount owed is right at $25,000 mark.

53 Relinquishment Options Borrower Surrenders Property Deed in Lieu of Foreclosure Consent Judgment Short Sale Relocation Assistance (“Cash for Keys”)

54 Relinquishment Option Deed in Lieu of Foreclosure (DIL) - Essentially short sale to the bank - Borrower deeds property to lender and lender agrees not to pursue personal deficiency - Have to list property for 90 days first - Why? Credit score, cannot reinstate, no equity - Why not? Cook County judges rarely grant personal deficiency judgments, less time in the property, credit still negatively impacted - Title issues will prevent – lender would take property subject to other liens as opposed to foreclosure that wipes them out

55 Relinquishment Option Consent Judgment - Similar to DIL except 2 nd mortgage on property – 2 nd mortgagee bound if proper notice & does not object – 2 nd mortgagee can later file a collection case based on the Note even though mortgage foreclosed – Statute bars pursuit of personal deficiency judgment – Statute makes unavailable if there is a US tax lien

56 Relinquishment Option Short Sale - Sale price does not cover outstanding mortgage - Approval required from all lienholders - Amount forgiven IS taxable if investment property - Need to get lender’s approval to waive personal deficiency – not automatic

57 Relinquishment Option HAMP Related Program HAFA Homeowners can get $3000 for completing a short-sale or DIL Must meet basic HAMP eligibility requirements – No NPV test Must be evaluated for HAMP and fail or request HAFA – If borrower requests HAFA, they must be informed of HAMP and given 14 days to consider pursuing HAMP Deficiency must be waived Borrowers may be required to make monthly payments of 31% of income Supp. Dir. 09-09

58 Relinquishment Option HAMP Related Program HAFA Minimum net proceeds defined in advance Minimum 120 days to sell the property under short sale agreement Borrower supposed to clear subordinate liens; servicer may authorize up to a total of $6K from sale proceeds paid to subordinate lienholders, no more than 6% of the subordinate lien’s outstanding principal balance Servicer may require borrower to list house first, before entering into a deed-in-lieu

59 Relinquishment Option Relocation Assistance (“Cash for Keys”) Relocation Assistance (“Cash for Keys”) - Possible part of DIL Agreement - Lender pays Borrower to timely vacate home w/out destroying property - Lender avoids incurring eviction costs

60 Relinquishment Factors to Consider for Any Option - compare length of time in the home with agreement and without - risk of deficiency judgment - credit score impact - alternate housing plan - tax consequences - relinquishment options RARELY make sense

61 Relocation Resources Seniors For Chicago: - IL Department on Aging, 800-252-8966 - Chicago Dpt. on Aging, 312-744-4016 For Suburban Cook County: - Eldercare, 800-677-1116/

62 Relocation Resources HPRP Housing Prevention and Rapid Re-Housing Program City of Chicago residents only – 311 Only if at or below 50% area median income Suburbs offer only if homeless Housing relocation Monetary assistance

63 Debt Forgiveness: Tax Implications Whenever Principal is Forgiven / Reduced Mortgage Forgiveness Debt Relief Act - If Primary Residence, then amount forgiven is NOT taxable - EXCEPT, if it was a refinance, any funds taken out and not used on the property ARE still taxable – even if primary residence

64 Debt Forgiveness: Tax Implications Even if taxable, there is an exception when the client is insolvent at the time of the forgiveness IRS Publication 4681 & IRS News Release IR-2008-17 for further details Refer to CVLS if tax advice is needed

65 What can you Expect from CVLS? – Sign up as volunteer, even if already CVLS vol – Phone calls and / or emails requesting you to take a case – Agree to take a case, and receive documents by email – An experienced “support” attorney assigned to your case who will keep in contact with you, discuss the case, and possibly attend mediation with you

66 What do you do when you get a case? You will likely receive very few documents – Notice of Mediation – Mediation Referral Order – Letters to you and the client Client Intake, Case Work up and Mediation Summary Working in a short time frame – get started immediately Can meet with your client in person or by phone Mediation summaries due 10 days prior to mediation. Keep in touch with your support attorney

67 Can I cancel or continue a mediation? Highly frowned upon, but can be done if necessary. Check with CVLS support attorney first Must have opposing counsel’s agreement – email them in advance for agreement After you have their agreement, email CCR at to continue or cancel Must give CCR at least 72 hours notice.

68 What to bring to mediation – Bring with you all documents that have been submitted – Bring any updated documents you haven’t already submitted – Clients must appear – Be prepared and on time – Will last at most 90 minutes – Assume second mediation will occur

69 What to Expect in Mediation - The Plaintiff must attend, and can attend by speaker phone - Policy Statement / Confidential - Each side’s perspective and goals - Mediator may directly ask the parties - Plaintiff usually goes first - Prep client – opportunity to be heard but focus on settlement – speak for your client if they prefer

70 What to Expect in Mediation - Mediator summarizes issues, looks for common ground Focus on specifics - which program the Plaintiff is working under vs. the program the Plaintiff SHOULD be working under - arrearage and pay-off figures - borrower eligibility – income & expenses - Do not be afraid to ask for clarity – most often you know more than the person on the phone - Do not take the servicer’s answer as gospel – make them run through all of their calculations with you – challenge any errors to their numbers or their process

71 What to Expect in Mediation Often times – what docs are still needed – If docs are to be submitted they should go through plaintiff’s attorney – Set out a timeline for submission and responses – DO NOT ACCEPT UNREASONABLE TIME FRAMES – Set an additional mediation date after the answer is expected – can be cancelled if case settles Get additional info so that you can refine your calculations before the next mediation – The most current Broker’s Price Opinion (BPO) – Current unpaid principal balance, arrearages, total payoff – Current escrow (taxes and insurance) being paid – If any other docs will need to be updated before next mediation – If any other docs will be needed to be evaluated for other programs if the one applied for fails – go ahead and submit them now

72 What to Expect in Mediation If you need time to discuss something with your client – take them out in the hall – no discussions should proceed without your presence If you have a question – call your support attorney or any CVLS attorney in the program If the post mediation status date is before the next mediation, make sure plaintiff’s attorney agrees to have the mediation order continued If an agreement is reached, the mediator will complete a summary of agreement – often subject to underwriting

73 What to Expect in Mediation Issues that probably shouldn’t be addressed “Robo Signing” – this is a summary judgment issue Standing – “produce the note” – this is an issue for litigation Assignment of note – attaching assignments to the complaint is not required Proper service - moot: borrower has filed appearance

74 What to Expect in Mediation Should I schedule another mediation session? Always err on the side of “yes” Even if you come to agreement, set another date to make sure it is properly reduced to writing (it is your job to review the written agreement) If the written agreement is satisfactory, you can cancel the mediation Plaintiff’s attorney may fight you on this issue – don’t worry, we can go to the post mediation status date and ask the judge to continue the mediation order If you agree to any next steps, you should not sign anything that states that there is “no agreement” If there are any next steps, be sure to memorialize them in the Summary of Agreement form that the mediator will provide

75 What to Expect in Mediation What should I do if my client is in a trial modification? Cancel any mediation that is scheduled before the last trial payment is due Request another mediation for immediately after the last payment is due to mediate a permanent loan modification – insist that this date be set Confirm that the plaintiff’s attorney will attend any intervening post mediation status date and continue the mediation order Touch base with your client and plaintiff’s counsel after last payment is made to coordinate getting any required updated documents submitted

76 What to Expect After Mediation You do not attend the 12 week post-mediation status date at court. However, we highly encourage you to attend a call to understand the procedures. Your client must attend – prepare them for what will happen – the court considers attendance essential for demonstrating continued interest CVLS will provide the court a summary of what we are requesting / what happened – very basic, cannot break confidentiality Either send case back to trial call, or extend mediation order IMPORTANT: Send written summary to support attorney after each mediation session – we need to know what to report to the court for the 12 week status date

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