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Foreclosure Mediation Program. Mortgage Foreclosure Filings in Cook County 200012,705 200116,228 200217,450 200315,815 200415,632 200516,494 200622,248.

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Presentation on theme: "Foreclosure Mediation Program. Mortgage Foreclosure Filings in Cook County 200012,705 200116,228 200217,450 200315,815 200415,632 200516,494 200622,248."— Presentation transcript:

1 Foreclosure Mediation Program

2 Mortgage Foreclosure Filings in Cook County , , , , , , , , , ,049

3 Mortgage Foreclosure Filings in Cook County 2010 –Estimated foreclosure case filings: 48,000 – 52,000 –60,766 mortgage foreclosure cases were pending as of March 31, 2010

4 Chicago Volunteer Legal Services “CVLS” –Funded in 1964 –Largest, non-government funded –Over 2,900 volunteers –In 2009, CVLS provided free legal services to 17,427 low income people in the Chicago area

5 CVLS Contact Information Patricia Nelson, Director of Foreclosure Mediation Program ; Natalie Weidemier, Attorney Support Supervisor ; Rebekah Rashidfarokhi, Staff Attorney ; Shirley Chiu, Staff Attorney ; Veronica Rodriguez, Foreclosure Mediation Administrator ;

6 Access to Justice –Court appointed by the Chancery Division –Full legal representation for pro-se litigants – cases/year –Possible representation for foreclosure cases that do not settle in mediation

7 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

8 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

9 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

10 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

11 Mediation Process Timeline January – March Pre-Complaint: 3 missed payments AprilComplaint: Filed Late AprilJurisdiction: Service Early MayBorrower calls Hotline on Summons, receives appt. to meet w/ HUD and CLC Mid-MayBorrower meets w/ HUD counselor & begins loan mod process. Borrower meets w/ CLC attorney who reviews for legal defenses & assists with Appearance, Answer, Mtn Mediation

12 Mediation Process Timeline JuneCase Mgmt Date: Mediation Order entered, CVLS appointed JuneCVLS and Plaintiff’s attorney receive Notice of Mediation date. Date will be scheduled w/in 5 weeks of Case Management Date JuneCVLS volunteer (YOU) agree to accept case JulyYou meet w/ client – either personally or over phone

13 Mediation Process Timeline July Plaintiff’s attorney to negotiate loan mod. No agreement reached AugustMediation- case settles w/ a desired loan mod AugustReceive final written agreement, client executes September12 Week Post-Mediation Status: You are not required to attend. Plaintiff dismisses case

14 Retention Options Borrower Remains in the Property Loan Modification –Lender modifies one or more of these terms: - Interest Rate - Term of the Loan - Principal –Two types: HAMP & Non-HAMP

15 Retention Options Borrower Remains in the Property HAMP Loan Modification –Federal program –Monthly mortgage payment no more than 31% of gross income –Modification sequence: reduce interest rate, extend term of the loan, forbear principal

16 Retention Options Borrower Remains in the Property Forbearance -Lender agrees not to accept payments for a specified period of time -Unemployed borrowers or those experiencing a temporary, finite loss of income -UP Program

17 Retention Options Borrower Remains in the Property Repayment -Borrower pays arrearages (missed payments, attorney’s fees, lender’s costs) over a period of time, usually 6-12 months -Borrower must make regular mortgage payment in addition to repayment amount -Unrealistic for most borrowers

18 Retention Options Borrower Remains in the Property 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

19 Non-Retention Options Borrower Surrenders Possession of Property Deed in Lieu of Foreclosure -Borrower deeds property to lender and lender agrees not to pursue personal deficiency -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

20 Non-Retention Options Borrower Surrenders Possession of Property 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

21 Non-Retention Options Borrower Surrenders Possession of Property Short Sale -Sale price does not cover outstanding mortgage -Lender approval required -Amount forgiven IS taxable if investment property

22 Non-Retention Options Borrower Surrenders Possession of Property Cash for Keys -DIL variation -Lender pays Borrower to timely vacate home w/out destroying property -Lender avoids incurring eviction costs

23 Non-Retention Options Borrower Surrenders Possession of Property Exit w/ Post-Foreclosure Rental -Lenders’ inventory of foreclosed homes are increasing which may serve as an incentive to rent the property to the Borrower

24 Non-Retention Options Borrower Surrenders Possession of Property Chapter 7 Bankruptcy -Chapter 7 will not stay the foreclosure -Chapter 7 will release Borrower from any debt, including any potential deficiency judgment

25 OVERVIEW OF HAMP James Brady Legal Assistance Foundation of Metropolitan Chicago

26  What is HAMP? ◦ What loans are eligible? ◦ How do you figure that out?  How does HAMP work? ◦ Waterfall for payment reduction ◦ NPV test ◦ Trial modifications ◦ Denials ◦ Bankruptcy  How does HAMP impact litigation? ◦ Stopping a foreclosure ◦ Waiver  Problems  Related programs OVERVIEW

27  Home Affordable Modification Program  Component of Making Home Affordable initiative.  Voluntary incentive-based plan ◦ For non-GSE loans, servicers choose whether to participate or not ◦ Mandatory for all Fannie Mae and Freddie Mac insured loans, even if servicer not participating. ◦ Similar HAMP programs for VA and FHA loans  Participating servicers supposed to screen everybody, subject only to investor limits  Uniform modification characteristics ◦ Payments reduced to 31%, following standard waterfall ◦ Modification results in a positive Net Present Value (NPV) for investors ◦ Trial modification followed by permanent modification WHAT IS HAMP?

28  No regs  No statute  Guidance ◦ Non-GSE: Supplemental Directives, Model Forms & FAQs ( ) ◦ Fannie Mae: Announcements ( ) ◦ Freddie Mac: Bulletins ( ◦ FHA: Mortgagee letters ( ◦ VA: Circulars ( WHERE IS THERE GUIDANCE?

29  $1000 for each completed loan mod  $1000 a year for 3 years for sustained loan modification, if payment reduced by 6% (or ½ of the amount the borrower’s monthly payment is lowered by, if less)  Incentives for deed in lieu or short sale  $500 for pre-default loan modification SERVICER INCENTIVES

30  $ 1500 pre-default loan modification with payment reduced by at least 6%  Partial loan guarantees for modified loans (declining principal coverage)  Interest or principal reduction subsidies for half the difference between a payment at 38% DTI and 31% DTI  Home Price Decline Protection (HPDP) payments ◦ Increase as  House price decline index (MSA or non-MSA region) increases  UPB balance increases up to $259,000  MTM-LTV increases, up to 90% ◦ Permanent mods, payment reduced at least 6%, NPV run after 9/1/09 ◦ HPDP: Supplemental Directive INVESTOR INCENTIVES

31  Servicers can do modifications that go deeper than HAMP and still receive incentive payments ◦ FAQs #3, 19  Servicers can offer non-HAMP modifications, although everyone should be screened for and offered a HAMP mod HAMP IS FLOOR, NOT CEILING

32  All Fannie Mae/Freddie Mac loans covered ◦ Search engine online to see if either owns the loan  List of participating servicers ◦ List with contact information available online ◦ Applies to operating subsidiaries/affiliates ◦ Servicer Participation Agreement (SPA) available online  Websites: ◦ ◦ LOAN ELIGIBILITY

33  Similar programs for Fannie & Freddie ◦ Fannie: Announcement 09-05R ◦ Freddie: Chapter C65 of Seller/Servicer Guide  Servicers get same incentives FANNIE/FREDDIE SIMILAR PROGRAMS

34  Mandates that banks receiving TARP money on a “going forward basis” offer loan modifications  Servicers who sign contract must modify all eligible loans ◦ Approximately 85% of eligible mortgage debt covered by HAMP servicers  Servicers of GSE loans must modify GSE loans  Servicers, not investors, participate PARTICIPATING SERVICERS MUST MODIFY LOANS

35  HAMP doesn’t override PSAs.  BUT, the program follows “the “usual and customary industry standards”  If investor forbids modification, servicer must request waiver ◦ Supp. Dir : servicers required to use “reasonable efforts” to get approval. ◦ Supp. Dir : 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.  15 U.S.C. §1639a creates safe harbor from investor litigation for servicers who modify under HAMP CAN INVESTORS FORBID HAMP MODS?

36  Is the borrower eligible? ◦ Default or imminent risk of default ◦ Current payment greater than 31% of income ◦ Property eligibility ◦ Loan eligibility  Does the borrower qualify? ◦ Hardship affidavit ◦ Verified income ◦ NPV test (will the investor profit more by a mod than without a mod?) TWO STEP SCREENING PROCESS

37  Default: must have been caused by hardship  Or default is “imminent” due to hardship ◦ Is the rate about to reset? ◦ Lost income in the home?  Employment income  Divorce/ separation  Death ◦ Fraud in origination ◦ Low cash reserves  Imminent default guidance: ◦ Fannie Mae: Announcement ◦ Freddie Mac: Bulletin ◦ Non-GSE loans: Supp. Dir gives servicers wide latitude; FAQ #19 refers servicers to GSE guidelines DEFAULT?

38  Income ◦ Gross income for borrowers. Can include income for non-borrower household members. ◦ Net income gets multiplied by 125% ◦ Rental income gets multiplied by 75% ◦ Borrowers receiving unemployment benefits not eligible ◦ Must be able to document monthly income ◦ Borrower DOES NOT have to disclose child support or alimony  Expenses ◦ PITIA on first mortgage only ◦ Mortgage insurance not included  Note: Neither income nor expenses are an absolute bar, but 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 the borrower may already be at or under 31% DTI Supp. Dir , Supp. Dir , Supp. Dir % OF WHAT? THE EXPENSES/INCOME RATIO

39  Property must be: ◦ Primary residence. Investment properties not eligible. ◦ One to four units  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 Supp. Dir ELIGIBILITY

40  Submission of “Initial Package” triggers servicer’s duty to review for HAMP ◦ Request for Modification and Affidavit (RMA) ◦ 4506T-EZ form  RMA and 4506T-EZ Forms available at or ◦ Proof of income  As of 6/1/10, will not accept oral/unverified income  Checklist available at Supp. Dir APPLYING FOR HAMP

41  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. Supp. Dir , Supp. Dir , Supp. Dir SERVICER RESPONSE TIME

42  Target payment – PITIA 31% of gross monthly income ◦ If servicer reduces payment to 38%, Treasury subsidizes rate reduction to 31%  Waterfall Analysis ◦ Capitalize arrearage ◦ Reduce interest rate ◦ Amortization term extended to 40 years ◦ Principal forbearance ◦ Allowed to forgive principal, but not required.  Servicers will only take steps necessary to get payment to target amount. Supp. Dir WATERFALL ANALYSIS

43  Capitalized arrearage includes: ◦ Past due principal and interest ◦ Escrow deficiencies/advances, though doesn’t have to be. ◦ 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. Supp. Dir PRINCIPAL DEBT WILL INCREASE

44  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. INTEREST RATE

45  Forbearance ◦ Limited to 30% of unpaid principal balance or 100% LTV (Supp. Dir ) ◦ Treated as non-interest bearing balloon payment  Reduction: ◦ Not required ◦ Additional incentives available ($1,000/year for 5 years of successful mod) Supp. Dir PRINCIPAL FORBEARANCE AND PRINCIPAL REDUCTION

46  What are the loan mod terms? ◦ Payment  Income  Escrow ◦ Forbearance required ◦ FDIC Loan Mod in a Box  What is the unpaid principal balance? ◦ 30%  What is the current value? ◦ Difference between unpaid principal balance and current value HOW TO REVIEW EXCESSIVE FORBEARANCE

47  Measures the benefit to the investor of a loan mod ◦ Not servicer ◦ Not borrower  Weighs value and probability of ◦ Current payments ◦ Foreclosure ◦ Loan mod ◦ 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. HAMP NPV TEST

48  HAMP NPV test not public ◦ Should demand entire NPV in discovery ◦ FDIC has comparable model online at  Default model based on: ◦ FICO score ◦ MTM LTV ◦ Current delinquency ◦ DTI  Value of current loan reduced by probability of default  Value of loan mod reduced by probability of redefault.  Servicers can generate their own NPV and use their own numbers for required inputs HAMP NPV TEST

49  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 REASONS FOR FAILING NPV

50  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 ◦ May be required to get housing counseling if back end ratio is more than 55% DTI but need not be completed before modification.  Will be converted to permanent modification upon completion of trial modification  If fails trial period: no further HAMP mod. “1 bite at the apple.” Supp. Dir , Supp. Dir IF APPROVED…

51  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 Supp. Dir , Supp. Dir INCOMPLETE INFORMATION…

52  Servicers must notify borrowers when: ◦ Not offering a trial mod ◦ Not offering a permanent mod ◦ Borrower at risk of losing trial mod ◦ Borrower withdraws or refuses loan mod offer  Who gets notices: ◦ Borrower who submitted request for HAMP ◦ Borrower who verbally gave information sufficient for NPV review ◦ Borrower offered trial mod Supp. Dir IF DENIED…

53  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  ECOA compliance required by Supp. Dir and FRB guidance  FCRA not specifically cited, but surely included in all other applicable regs IF DENIED…

54  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  Not required to provide property valuation, assumptions, fees  No foreclosure sale for additional 30 days if borrower requests inputs  Must review new borrower data, recalculate if likely to change outcome IF DENIED…

55  Process set out in Sup. Dir ◦ If NPV inputs inaccurate, servicer must re-run if “material” ◦ No foreclosure sale until inaccuracies “resolved”  In-house servicer escalation teams  Contact appropriate escalation team ◦ Non-GSE: (866) 939 – 4469 ◦ Fannie Mae: FANNIE ◦ Freddie Mac: Phone: FREDDIE CHALLENGING DETERMINATION

56  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. ◦ Servicers cannot object to confirmation of a chapter 13 plan, move for relief from the automatic stay, or move to dismiss the chapter 13 case if on the basis that the borrower paid only the trial period plan payments rather than the scheduled mortgage payments Supp. Dir BANKRUPTCY: ELIGIBILITY

57  Servicers may accept copies of the bankruptcy schedules and tax returns filed in the case in lieu of the RMA and Form 4506T-EZ, if they are within 90 days.  Borrowers in a chapter 13 case who are determined eligible for HAMP may be converted to a permanent modification without completing a trial period plan if current on post- petition payments and if payments are >31% of gross monthly income. Supp. Dir BANKRUPTCY: DOCUMENTS

58  Should be no waiver ◦ Supplemental Directive 09-01, p. 2  Language in modification agreement, paragraph 4E appears to waive some defences  Can get a HAMP mod even if in active litigation or bankruptcy WAIVER

59  Servicer communication ◦ No response ◦ No details about analysis or determination  Re-verification of income ◦ Documents lost ◦ Homeowner no longer eligible  Accumulation of arrears  Foreclosure sales  Wrongful denials PROBLEMS

60  2 nd Lien Modification Program (2MP)  Voluntary participation: signing separate SPA agreements. ◦ List of participating servicers at  Though announced, Treasury reports not “operational” until August. Supp. Dir RELATED PROGRAMS: 2MP

61  To be eligible, borrower must have final HAMP mod on 1 st lien  Then, 2 nd lien can be modified or extinguished, in whole or in part.  Modification follows first lien: ◦ Interest rate reduced to 1% for 5 years, then rate of first lien ◦ Amortization to match first lien ◦ Proportional principal forbearance RELATED PROGRAMS: 2MP

62  Unemployment Program, effective July 1, 2010  Three-month “forbearance” ◦ Payments scheduled at 31% of income  Borrower must request forbearance before 3 months of payments are delinquent  Servicer may require borrower to demonstrate receipt of unemployment for 3 months before evaluating for forbearance  If re-employed at end of forbearance, could be considered for HAMP  Otherwise, could be considered for a short-sale or deed-in-lieu  Unemployment income will not be considered in determining HAMP eligibility Supp. Dir RELATED PROGRAMS: UP

63  Homeowners must request forbearance plan before 3 months delinquent  Servicers can require homeowners to receive unemployment benefits for up to 3 months before reviewing for forbearance  Borrowers must demonstrate receipt of unemployment benefits through effective date of forbearance agreement ◦ First day of the month following mailing of forbearance plan to homeowner by servicer RELATED PROGRAMS: UP

64  Borrowers should request forbearance immediately upon becoming unemployed  Borrowers should hold servicers’ to response timelines, so that unemployment benefits do not run out before effective date of forbearance plan  Servicer must send notice of forbearance plan 10 business days after its determination  Will accrue late fees  No referrals to foreclosure or judicial sale during evaluation for UP or during forbearance RELATED PROGRAMS: UP

65  If unemployed, evaluated for UP not HAMP  Evaluated for HAMP mod if: ◦ Not eligible for forbearance ◦ Re-employed ◦ 30 days prior to expiration of forbearance  Forbearance period does not count towards 3 month trial plan  Can convert from trial plan to forbearance if become unemployed ◦ Must complete new trial plan ◦ Subject to 3 month waiting period RELATED PROGRAMS: UP

66  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 RELATED PROGRAMS: HAFA

67  Minimum net proceeds defined in advance  Minimum 120 days to sell the property  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 RELATED PROGRAMS: HAFA

68  Works in tandem with HUD partial claim, but some different rules  HAMP considered last modification tool for FHA loans, rather 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  Mortgagee Letter sets forth basic outline  Be aware of other modification options available for FHA mortgages ◦ See, e.g., Mortgagee Letter (requiring that modifications reduce the base rate to the current market rate) Supp. Dir RELATED PROGRAMS: FHA-HAMP

69  Basic program guidance in Circular , available at  FAQs available at  Largely adopts Treasury forms and models, except ◦ Two step NPV process, with VA guarantee and without  If it passes without but fails with, VA “refund” of the loan should happen ◦ All VA loans eligible for consideration ◦ Only modifications on loans 61+ days delinquent eligible for servicer incentive payment  Divorced spouse of veteran who retains home eligible RELATED PROGRAMS: VA HAMP

70 How Volunteering in Foreclosure Mediation Will Work –Receive CVLS w/ available mediation dates –Volunteer accepts a mediation date –Receive CVLS w/ cases attached –CVLS sends letter to client w/ your contact information –Client contacts attorney (or vice versa)

71 How Volunteering in Foreclosure Mediation Will Work 1 st Discussion Between You and the Client –Either in person or over the phone –Scope of Representation –Pre-Mediation & Mediation: purpose, process –Confirm Financials –Reality Testing –Identify Goals: Retention/Non-Retention –Best/Worst Case Scenario

72 How Volunteering in Foreclosure Mediation Will Work Pre-Mediation Negotiation w/ Plaintiff’s Attorney –Save correspondence ( s, correspondence, etc…) –Be aggressive –Agreements must be in writing and signed before cancelling mediation –Use mediation summary terms

73 How Volunteering in Foreclosure Mediation Will Work Mediation –Must have all updated financials –Clients must appear –Be prepared and on time –Use mediation summary terms Post-Mediation –Report results to CVLS

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