Settlement Term Sheet

They are publishing the settlement consent judgments here:http://www.nationalmortgagesettlement.com/

As they trickle in, along with many different orders, findings, and reports from other federal agencies, we are parsing the terms.  Some picked up from the consent judgment with Ally/GMAC/ResCap:

FORECLOSURE AND BANKRUPTCY INFORMATION AND DOCUMENTATION.
Unless otherwise specified, these provisions shall apply to bankruptcy and
foreclosures in all jurisdictions regardless of whether the jurisdiction has a
judicial, non-judicial or quasi-judicial process for foreclosures and regardless of
whether a statement is submitted during the foreclosure or bankruptcy process in
the form of an affidavit, sworn statement or declarations under penalty of perjury
(to the extent stated to be based on personal knowledge) (“Declaration”).

In the statements described in paragraphs I.A.18 and III.B.1.a,
Servicer shall notify borrowers that they may receive, upon written
request:
a. A copy of the borrower’s payment history since the
borrower was last less than 60 days past due;
b. A copy of the borrower’s note;
c. If Servicer has commenced foreclosure or filed a POC,
copies of any assignments of mortgage or deed of trust
required to demonstrate the right to foreclose on the
borrower’s note under applicable state law; and
d. The name of the investor that holds the borrower’s loan.

. . .

Documentation of Note, Holder Status and Chain of Assignment.
1. Servicer shall implement processes to ensure that Servicer or the
foreclosing entity has a documented enforceable interest in the
promissory note and mortgage (or deed of trust) under applicable
state law, or is otherwise a proper party to the foreclosure action.
2. Servicer shall include a statement in a pleading, affidavit of
indebtedness or similar affidavits in court foreclosure proceedings
setting forth the basis for asserting that the foreclosing party has
the right to foreclose.
3. Servicer shall set forth the information establishing the party’s
right to foreclose as set forth in I.C.2 in a communication to be
sent to the borrower as indicated in I.A.18.
4. If the original note is lost or otherwise unavailable, Servicer shall
comply with applicable law in an attempt to establish ownership of
the note and the right to enforcement. Servicer shall ensure good
faith efforts to obtain or locate a note lost while in the possession
of Servicer or Servicer’s agent and shall ensure that Servicer and
Servicer’s agents who are expected to have possession of notes or
assignments of mortgage on behalf of Servicer adopt procedures
that are designed to provide assurance that the Servicer or
Servicer’s agent would locate a note or assignment of mortgage if
it is in the possession or control of the Servicer or Servicer’s agent,
as the case may be. In the event that Servicer prepares or causes to
be prepared a lost note or lost assignment affidavit with respect to
an original note or assignment lost while in Servicer’s control,
Servicer shall use good faith efforts to obtain or locate the note or
assignment in accordance with its procedures. In the affidavit,
sworn statement or other filing documenting the lost note or
assignment, Servicer shall recite that Servicer has made a good
faith effort in accordance with its procedures for locating the lost
note or assignment.
5. Servicer shall not intentionally destroy or dispose of original notes
that are still in force.
6. Servicer shall ensure that mortgage assignments executed by or on
behalf of Servicer are executed with appropriate legal authority,
accurately reflective of the completed transaction and properly
acknowledged.

. . .

Bankruptcy Documents.
1. Proofs of Claim (“POC”). Servicer shall ensure that POCs filed
on behalf of Servicer are documented in accordance with the
United States Bankruptcy Code, the Federal Rules of Bankruptcy
Procedure, and any applicable local rule or order (“bankruptcy
law”). Unless not permitted by statute or rule, Servicer shall
ensure that each POC is documented by attaching:
a. The original or a duplicate of the note, including all
indorsements; a copy of any mortgage or deed of trust
securing the notes (including, if applicable, evidence of
recordation in the applicable land records); and copies of
any assignments of mortgage or deed of trust required to
demonstrate the right to foreclose on the borrower’s note
under applicable state law (collectively, “Loan
Documents”). If the note has been lost or destroyed, a lost
note affidavit shall be submitted.
b. If, in addition to its principal amount, a claim includes
interest, fees, expenses, or other charges incurred before the
petition was filed, an itemized statement of the interest,
fees, expenses, or charges shall be filed with the proof of
claim (including any expenses or charges based on an
escrow analysis as of the date of filing) at least in the detail
specified in the current draft of Official Form B 10
(effective December 2011) (“Official Form B 10”)
Attachment A.
c. A statement of the amount necessary to cure any default as
of the date of the petition shall be filed with the proof of
claim.
d. If a security interest is claimed in property that is the
debtor’s principal residence, the attachment prescribed by
the appropriate Official Form shall be filed with the proof
of claim.
e. Servicer shall include a statement in a POC setting forth the
basis for asserting that the applicable party has the right to
foreclose.
f. The POC shall be signed (either by hand or by appropriate
electronic signature) by the responsible person under
penalty of perjury after reasonable investigation, stating
that the information set forth in the POC is true and correct
to the best of such responsible person’s knowledge,
information, and reasonable belief, and clearly identify the
responsible person’s employer and position or title with the
A-10
employer.
2. Motions for Relief from Stay (“MRS”). Unless not permitted by
bankruptcy law, Servicer shall ensure that each MRS in a chapter
13 proceeding is documented by attaching:
a. To the extent not previously submitted with a POC, a copy
of the Loan Documents; if such documents were previously
submitted with a POC, a statement to that effect. If the
promissory note has been lost or destroyed, a lost note
affidavit shall be submitted;
b. To the extent not previously submitted with a POC,
Servicer shall include a statement in an MRS setting forth
the basis for asserting that the applicable party has the right
to foreclose.
c. An affidavit, sworn statement or Declaration made by
Servicer or based on information provided by Servicer
(“MRS affidavit” (which term includes, without limitation,
any facts provided by Servicer that are included in any
attachment and submitted to establish the truth of such
facts) setting forth:
i. whether there has been a default in paying prepetition
arrearage or post-petition amounts (an
“MRS delinquency”);
ii. if there has been such a default, (a) the unpaid
principal balance, (b) a description of any default
with respect to the pre-petition arrearage, (c) a
description of any default with respect to the postpetition
amount (including, if applicable, any
escrow shortage), (d) the amount of the pre-petition
arrearage (if applicable), (e) the post-petition
payment amount , (f) for the period since the date of
the first post-petition or pre-petition default that is
continuing and has not been cured, the date and
amount of each payment made (including escrow
payments) and the application of each such
payment, and (g) the amount, date and description
of each fee or charge applied to such pre-petition
amount or post-petition amount since the later of the
date of the petition or the preceding statement
pursuant to paragraph III.B.1.a; and
iii. all amounts claimed, including a statement of the
amount necessary to cure any default on or about
the date of the MRS.
A-11
d. All other attachments prescribed by statute, rule, or law.
e. Servicer shall ensure that any MRS discloses the terms of
any trial period or permanent loan modification plan
pending at the time of filing of a MRS or whether the
debtor is being evaluated for a loss mitigation option.

. . .

Dual Track Restricted.
1. If a borrower has not already been referred to foreclosure, Servicer
shall not refer an eligible borrower’s account to foreclosure while
the borrower’s complete application for any loan modification
program is pending if Servicer received (a) a complete loan
modification application no later than day 120 of delinquency, or
(b) a substantially complete loan modification application (missing
only any required documentation of hardship) no later than day
120 of delinquency and Servicer receives any required hardship
documentation no later than day 130 of delinquency. Servicer
shall not make a referral to foreclosure of an eligible borrower who
so provided an application until:

11. Servicer shall not move to judgment or order of sale or proceed
with a foreclosure sale under any of the following circumstances:
a. The borrower is in compliance with the terms of a trial loan
modification, forbearance, or repayment plan; or
b. A short sale or deed-in-lieu of foreclosure has been
approved by all parties (including, for example, first lien
investor, junior lien holder and mortgage insurer, as
applicable), and proof of funds or financing has been
provided to Servicer.
A-21
12. If a foreclosure or trustee’s sale is continued (rather than cancelled)
to provide time to evaluate loss mitigation options, Servicer shall
promptly notify borrower in writing of the new date of sale
(without delaying any related foreclosure sale).
13. As indicated in paragraph I.A.18, Servicer shall send a statement to
the borrower outlining loss mitigation efforts undertaken with
respect to the borrower prior to foreclosure referral. If no loss
mitigation efforts were offered or undertaken, Servicer shall state
whether it contacted or attempted to contact the borrower and, if
applicable, why the borrower was ineligible for a loan modification
or other loss mitigation options.
14. Servicer shall ensure timely and accurate communication of or
access to relevant loss mitigation status and changes in status to its
foreclosure attorneys, bankruptcy attorneys and foreclosure
trustees and, where applicable, to court-mandated mediators.

. . .

THIRD-PARTY PROVIDER OVERSIGHT.
A. Oversight Duties Applicable to All Third-Party Providers.
Servicer shall adopt policies and processes to oversee and manage
foreclosure firms, law firms, foreclosure trustees, subservicers and other
agents, independent contractors, entities and third parties (including
subsidiaries and affiliates) retained by or on behalf of Servicer that
provide foreclosure, bankruptcy or mortgage servicing activities
(including loss mitigation) (collectively, such activities are “Servicing
Activities” and such providers are “Third-Party Providers”), including:
1. Servicer shall perform appropriate due diligence of Third-Party
Providers’ qualifications, expertise, capacity, reputation,
complaints, information security, document custody practices,
business continuity, and financial viability.
2. Servicer shall amend agreements, engagement letters, or oversight
policies, or enter into new agreements or engagement letters, with
Third-Party Providers to require them to comply with Servicer’s
applicable policies and procedures (which will incorporate any
applicable aspects of this Agreement) and applicable state and
federal laws and rules.
3. Servicer shall ensure that agreements, contracts or oversight
policies provide for adequate oversight, including measures to
enforce Third-Party Provider contractual obligations, and to ensure
timely action with respect to Third-Party Provider performance
failures.
4. Servicer shall ensure that foreclosure and bankruptcy counsel and
foreclosure trustees have appropriate access to information from
Servicer’s books and records necessary to perform their duties in
preparing pleadings and other documents submitted in foreclosure
and bankruptcy proceedings.
5. Servicer shall ensure that all information provided by or on behalf
of Servicer to Third-Party Providers in connection with providing
Servicing Activities is accurate and complete.
6. Servicer shall conduct periodic reviews of Third-Party Providers.
These reviews shall include:
a. A review of a sample of the foreclosure and bankruptcy
documents prepared by the Third-Party Provider, to provide
for compliance with applicable state and federal law and
A-13
this Agreement in connection with the preparation of the
documents, and the accuracy of the facts contained therein;
b. A review of the fees and costs assessed by the Third-Party
Provider to provide that only fees and costs that are lawful,
reasonable and actually incurred are charged to borrowers
and that no portion of any fees or charges incurred by any
Third-Party Provider for technology usage, connectivity, or
electronic invoice submission is charged as a cost to the
borrower;
c. A review of the Third-Party Provider’s processes to provide
for compliance with the Servicer’s policies and procedures
concerning Servicing Activities;
d. A review of the security of original loan documents
maintained by the Third-Party Provider;
e. A requirement that the Third-Party Provider disclose to the
Servicer any imposition of sanctions or professional
disciplinary action taken against them for misconduct
related to performance of Servicing Activities; and
f. An assessment of whether bankruptcy attorneys comply
with the best practice of determining whether a borrower
has made a payment curing any MRS delinquency within
two business days of the scheduled hearing date of the
related MRS.
The quality assurance steps set forth above shall be conducted by Servicer
employees who are separate and independent of employees who prepare
foreclosure or bankruptcy affidavits, sworn documents, Declarations or
other foreclosure or bankruptcy documents.

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2 thoughts on “Settlement Term Sheet

  1. Excellent information… thank you. I’ve been trying to find out the details of my discharged Chapter 7 case in CA. I’m in a non-judicial state. Do you have any knowledge as to how I can access specific info. on my case re: the protection of my primary residence? I don’t have an attorney and represented myself pro se in Fed. BK court. Thank you. AJ Sheaffer
    lovehealth@att.net

    Like

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