Bill Text: MS HB1004 | 2017 | Regular Session | Introduced
Bill Title: MS Residential Mortgage Foreclosure Mediation Program; create.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2017-01-31 - Died In Committee [HB1004 Detail]
Download: Mississippi-2017-HB1004-Introduced.html
MISSISSIPPI LEGISLATURE
2017 Regular Session
To: Banking and Financial Services; Judiciary A
By: Representative Myers
House Bill 1004
AN ACT TO CREATE THE MISSISSIPPI RESIDENTIAL MORTGAGE FORECLOSURE MEDIATION PROGRAM, WHICH WILL PROVIDE FOR MEDIATION BETWEEN THE BORROWERS AND LENDERS BEFORE FORECLOSURE ACTIONS ON HOMESTEAD PROPERTY ARE BEGUN; TO PROVIDE THE PROCEDURES TO BE FOLLOWED IN THE PROGRAM; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known as the Mississippi Residential Mortgage Foreclosure Mediation Program.
SECTION 2. As used in this act, the following terms have the meanings in the section:
(a) "Residential Mortgage Foreclosure Mediation Program" or "RMFM Program" means the mediation program managed by the Administrative Office of Courts to implement and carry out the intent of this act.
(b) "Program manager" means the manager of the RMFM Program.
(c) "Plaintiff" means the individual or entity filing to obtain a mortgage foreclosure on residential property.
(d) "Plaintiff's counsel" means counsel of record assigned to the case, or a member of The Mississippi Bar of the law firm retained by the plaintiff who is knowledgeable about the case.
(e) "Plaintiff's representative" means the person designated by the plaintiff who will appear at mediation and who has full authority to settle without further consultation and resolve the foreclosure suit. The plaintiff's representative is distinct from plaintiff's counsel.
(f) "Borrower" means an individual named as a party in the foreclosure action who is a primary obligor on the promissory note that is secured by the mortgage being foreclosed.
(g) "Homestead residence" means a residential property for which a homestead exemption was granted according to the certified rolls of the last assessment by the county property appraiser before the filing of the suit to foreclose the mortgage.
(h) "Plaintiff's disclosure for mediation" means those documents requested by the borrower under Section 9 of this act.
(i) "Foreclosure counselor" means a counselor trained in advising persons of options available when facing a mortgage foreclosure, who has no criminal history of committing a felony or a crime of dishonesty, and who is certified by the United States Department of Housing and Urban Development (HUD) or National Foreclosure Mitigation Counseling Program (NFMC) as an agency experienced in mortgage delinquency and default resolution counseling.
(j) "Communication equipment" means a conference telephone or other electronic device that permits all those appearing or participating to hear and speak to each other, provided that all conversation of the participants is audible to all persons present.
SECTION 3. (1) This act shall apply to all residential mortgage foreclosure actions filed in any circuit court in Mississippi in which the origination of the note and mortgage sued upon was subject to the provisions of the federal Truth in Lending Act, Regulation Z.1. However, compliance with this act varies depending on whether the property secured by the mortgage is a homestead residence.
(2) From and after July 1, 2017, all newly filed mortgage foreclosure actions filed against a homestead residence shall be referred to the RMFM Program unless the plaintiff and borrower agree in writing otherwise or unless pre-suit mediation was conducted in accordance with Section 25 of this act. The parties to the foreclosure action shall comply with the conditions and requirements imposed by this act. In actions to foreclose a mortgage on a homestead residence, the plaintiff and borrower shall attend at least one (1) mediation session, unless the plaintiff and borrower agree in writing not to participate in the RMFM Program or the program manager files a notice of borrower nonparticipation.
(3) From and after July 1, 2017, all newly filed residential mortgage foreclosure actions involving property that is not a homestead residence shall comply with the requirements of filing a RMFM Program Form as required by Section 7 of this act and the requirements of Section 20 of this act (plaintiff's certification as to settlement authority).
(4) At the discretion of the circuit court judge, compliance with this act may also be required for homestead residential mortgage foreclosure actions filed before July 1, 2017, to residences that are not homestead residences, and any other residential foreclosure action the circuit court judge deems appropriate. A party requesting that the case be sent to mediation with the RMFM Program at the discretion of the circuit court judge shall make the request in format prescribed by the judge.
SECTION 4. This act constitutes a formal referral to mediation under the Mississippi Rules of Civil Procedure in actions involving a mortgage foreclosure of a homestead residence. The plaintiff and borrower are deemed to have stipulated to mediation by a mediator assigned by program manager, unless the plaintiff and borrower file a written stipulation choosing not to participate in the RMFM Program. Referral to the RMFM Program is for administration and management of the mediation process and assignment of a mediator on the List of Court Annexed Mediation Program Mediators who has been trained in mediating residential mortgage foreclosure actions and who has agreed to be on the panel of available mediators. Mediation through the RMFM Program shall be conducted in accordance with Mississippi Rules of Civil Procedure and Mississippi Rules for Certified and Court-Appointed Mediators.
SECTION 5. The parties must comply with this act and the mediation process must be completed before the plaintiff applies for default judgment, a summary judgment hearing, or a final hearing in an action to foreclose a mortgage on a homestead residence unless a notice of nonparticipation is filed by the program manager.
SECTION 6. From and after July 1, 2017, in all actions to foreclose a mortgage on residential property the plaintiff shall attach to the summons to be served on each defendant a notice regarding managed mediation for homestead residences.
SECTION 7. (1) When suit is filed, counsel for the plaintiff must file a completed RMFM Program Form with the clerk of court. If the property is a homestead residence, all certifications in the RMFM Program Form must be filled out completely. Within one (1) business day after the RMFM Program Form is filed with the clerk of court, counsel for plaintiff shall also transmit in the electronic format approved by the circuit court judge a copy of the RMFM Program Form to the program manager along with the case number of the action and contact information for all of the parties. The contact information must include at a minimum the last known mailing address and phone number for each party.
(2) The program manager shall notify plaintiff's counsel of any incomplete or seemingly inaccurate information and plaintiff's counsel shall provide correct information promptly. In the RMFM Program Form, plaintiff's counsel must affirmatively certify whether the origination of the note and mortgage sued upon was subject to the provisions of the federal Truth in Lending Act, Regulation Z. In the RMFM Program Form, plaintiff's counsel must also affirmatively certify whether the property is a homestead residence. Plaintiff's counsel is not permitted to respond to the certification with "unknown," "unsure," "not applicable," or similar nonresponsive statements.
(3) If the property is a homestead residence and if the case is not exempted from participation in the RMFM Program because of pre-suit mediation conducted in accordance with Section 25 of this act, plaintiff's counsel shall further certify in the RMFM Program Form the identity of the plaintiff's representative who will appear at mediation. Plaintiff's counsel may designate more than one plaintiff's representative. At least one (1) of the plaintiff's representatives designated in the RMFM Program Form must attend any mediation session scheduled under this act. The RMFM Program Form may be amended to change the designated plaintiff's representative, and the amended RMFM Program Form must be filed with the court no later than five (5) days before the mediation session. All amended RMFM Program Forms must be electronically transmitted to the program manager via a secure dedicated email address or on the web-enabled information platform described in Section 10 of this act no later than one (1) business day after being filed with the clerk of court.
SECTION 8. (1) Upon the program manager receiving a copy of the RMFM Program Form, the program manager shall begin efforts to contact the borrower to explain the RMFM Program to the borrower and the requirements that the borrower must comply with to obtain a mediation. The program manager shall also ascertain whether the borrower wants to participate in the RMFM Program.
(2) The borrower must do the following before mediation being scheduled: meet with an approved mortgage foreclosure counselor, and provide to the program manager the information required by the borrower's financial disclosure for mediation. The borrower must meet in person or by telephone with an approved mortgage foreclosure counselor no later than thirty (30) days after the borrower is initially in contact with the program manager. The borrower's legal counsel may also attend foreclosure counseling, but attendance by legal counsel without the borrower does not satisfy the requirement. If the borrower fails to timely schedule a meeting with a foreclosure counselor, or if the borrower fails to submit the required financial disclosure forms, that failure shall be grounds for the program manager to file a notice of borrower nonparticipation as provided in Section 11 of this act. Completion of the borrower's financial disclosure for loan modification is mandatory in every case so that the borrower's basic financial condition can be assessed by the plaintiff. As applicable, the borrower's financial disclosure for alternative workout options, short sale and a deed in lieu of foreclosure should be submitted or made available to plaintiff's counsel and plaintiff's representative designated in the RMFM Program Form.
(3) It shall be the responsibility of the program manager to transmit the borrower's financial disclosure for mediation to plaintiff's counsel and the plaintiff's representative designated in the RMFM Program Form via a secure dedicated email address or to upload same to the web-enabled information platform described in Section 10 of this act. If the information is uploaded, the program manager shall notify plaintiff's counsel and the plaintiff's representative that the borrower's financial disclosure for mediation is available. The program manager is not responsible or liable for the accuracy of the borrower's financial information. The transmission of the borrower's financial disclosure for mediation to plaintiff's counsel and the plaintiff's representative shall occur no later than sixty (60) days after the program manager receives the electronic transmission of the RMFM Program Form from plaintiff's counsel.
SECTION 9. (1) Within the time limit stated below, before attending mediation the borrower may request any of the following information and documents from the plaintiff:
(a) Documentary evidence the plaintiff is the owner and holder in due course of the note and mortgage sued upon.
(b) A history showing the application of all payments by the borrower during the life of the loan.
(c) A statement of the plaintiff's position on the present net value of the mortgage loan.
(d) The most current appraisal of the property available to the plaintiff.
(2) The borrower must deliver a written request for that information to the program manager no later than twenty-five (25) days before the mediation session. The program manager shall promptly electronically transmit the request for information to plaintiff's counsel.
(3) Plaintiff's counsel is responsible for ensuring that the plaintiff's disclosure for mediation is electronically transmitted via a secure dedicated email address or to the web-enabled information platform described in Section 10 of this act no later than five (5) business days before the mediation session. The program manager shall promptly deliver a copy of plaintiff's disclosure for mediation to the borrower.
SECTION 10. All information to be provided to the program manager to advance the mediation process, such as the RMFM Program Form, borrower's financial disclosure for mediation, plaintiff's disclosure for mediation, as well as the case number of the action and contact information for the parties, shall be submitted electronically in a format approved by the circuit court judge via a secure dedicated email address or in a web-enabled information platform with XML data elements.
SECTION 11. The program manager shall have thirty (30) days after electronically receiving contact information for the borrower (as required by Section 7 of this act) to contact the borrower. If the borrower does not want to participate in the RMFM Program, or if the borrower fails or refuses to cooperate with the program manager, or if the program manager is unable to contact the borrower, the program manager shall file a notice of borrower's nonparticipation. The notice of borrower's nonparticipation shall be filed no later than ten (10) days after the borrower advises that he or she does not want to participate in the program, or fails to cooperate with requirements of this act. If the program manager is unable to contact the borrower within thirty (30) days after electronically receiving contact information for the borrower, the notice of borrower's nonparticipation shall be filed within forty (40) days after the borrower contact information is electronically received by the program manager. A copy of the notice of borrower's nonparticipation shall be served on the parties by the program manager.
SECTION 12. The program manager shall be responsible for referring the borrower to a foreclosure counselor before scheduling mediation. Selection from a list of foreclosure counselors certified by the United States Department of Housing and Urban Development shall be by rotation or by such other procedures as may be adopted by order of the circuit court judge. The borrower's failure to participate in foreclosure counseling shall be cause for terminating the case from the RMFM Program.
SECTION 13. In actions referred to the RMFM Program, the program manager shall advise any borrower who is not represented by an attorney that the borrower has a right to consult with an attorney at any time during the mediation process and the right to bring an attorney to the mediation session. The program manager shall also advise the borrower that the borrower may apply for a volunteer pro bono attorney in programs run by lawyer referral, legal services, and legal aid programs as may exist within the state. If the borrower applies to one (1) of those agencies and is coupled with a legal services attorney or a volunteer pro bono attorney, the attorney shall file a notice of appearance with the clerk of the court and provide a copy to the attorney for the plaintiff and the program manager. The appearance may be limited to representation only to assist the borrower with mediation but, if a borrower secures the services of an attorney, counsel of record must attend the mediation.
SECTION 14. (1) The plaintiff's representative, plaintiff's counsel, and the borrower are all required to comply with the time limitations imposed by this act and attend a mediation session as scheduled by the program manager. No earlier than sixty (60) days and no later than one hundred twenty (120) days after suit is filed, the program manager shall schedule a mediation session. The mediation session shall be scheduled for a date and time convenient to the plaintiff's representative, the borrower, and counsel for the plaintiff and the borrower, using a mediator on the List of Court Annexed Mediation Program Mediators who have been specially trained to mediate residential mortgage foreclosure disputes. Mediation sessions will be held at a suitable location(s) within the circuit court district obtained by the program manager for mediation. Mediation shall be completed within the time requirements established by the Mississippi Rules of Civil Procedure.
(2) Mediation shall not be scheduled until the borrower has had an opportunity to meet with an approved foreclosure counselor and the borrower's financial disclosure for mediation has been transmitted to the plaintiff via a secure dedicated email address or uploaded to the web-enabled information platform described in Section 10 of this act. Mediation shall not be scheduled earlier than thirty (30) days after the borrower's financial disclosure for mediation has been transmitted to the plaintiff.
(3) Once the date, time, and place of the mediation session have been scheduled by the program manager, the program manager shall promptly file with the clerk of court and serve on all parties a notice of the mediation session.
SECTION 15. (1) The following persons are required to be physically present at the mediation session: a plaintiff's representative designated in the most recently filed RMFM Program Form; plaintiff's counsel; the borrower; and the borrower's counsel of record, if any. However, the plaintiff's representative may appear at mediation through the use of communication equipment, if plaintiff files and serves at least five (5) days before the mediation a notice advising that the plaintiff's representative will be attending through the use of communication equipment and designating a person who is attending the mediation live and not electronically, who has full authority to sign any settlement agreement reached. Plaintiff's counsel may be designated as the person with full authority to sign the settlement agreement.
(2) At the time that the mediation is scheduled to physically begin, the program manager shall enter the mediation room before the beginning of the mediation conference and, before any discussion of the case in the presence of the mediator, take a written roll. That written roll will consist of a determination of the presence of the borrower; the borrower's counsel of record, if any; the plaintiff's counsel; and the plaintiff's representative with full authority to settle. If the program manager determines that anyone is not present, that party shall be reported by the program manager as a nonappearance by that party on the written roll. If the program manager determines that the plaintiff's representative present does not have full authority to settle, the program manager shall report that the plaintiff's representative did not appear on the written roll as a representative with full settlement authority as required by this act. The written roll and communication of authority to the program manager is not a mediation communication.
(3) If the plaintiff's representative attends mediation through the use of communication equipment, the person authorized by the plaintiff to sign a settlement agreement must be physically present at mediation. If the plaintiff's representative attends mediation through the use of communication equipment, the plaintiff's representative must remain on the communication equipment at all times during the entire mediation session. If the plaintiff's representative attends through the use of communication equipment, and if the mediation results in an impasse, within five (5) days after the mediation session, the plaintiff's representative shall file in the court file a certification as to whether the plaintiff's representative attended mediation. If the mediation results in an impasse after the appearance of the plaintiff's representative through the use of communication equipment, the failure to timely file the certification regarding attendance through the use of communication equipment shall be grounds to impose sanctions against the plaintiff, including requiring the physical appearance of the plaintiff's representative at a second mediation, taxation of the costs of a second mediation to the plaintiff, or dismissal of the action.
(4) Junior lienholders may appear at mediation by a representative with full settlement authority. If a junior lienholder is a governmental entity comprised of an elected body, that junior lienholder may appear at mediation by a representative who has authority to recommend settlement to the governing body. Counsel for any junior lienholder may also attend the mediation.
The participants physically attending mediation may consult on the telephone during the mediation with other persons.
SECTION 16. If either the plaintiff's representative designated in the most recently filed RMFM Program Form or the borrower fails to appear at a properly noticed mediation and the mediation does not occur, or when a mediation results in an impasse, the report of the mediator shall notify the circuit court judge regarding who appeared at mediation without making further comment as to the reasons for an impasse. If the borrower fails to appear, or if the mediation results in an impasse with all required parties present, and if the borrower has been lawfully served with a copy of the complaint, and if the time for filing a responsive pleading has passed, the matter may proceed to a final hearing, summary judgment, or default final judgment in accordance with the Mississippi Rules of Civil Procedure without any further requirement to attend mediation. If plaintiff's counsel or the plaintiff's representative fails to appear, the court may dismiss the action without prejudice, order plaintiff's counsel or the plaintiff's representatives to appear at mediation, or impose such other sanctions as the court deems appropriate including, but not limited to, attorney's fees and costs if the borrower is represented by an attorney. If the borrower or borrower's counsel of record fails to appear, the court may impose such other sanctions as the court deems appropriate, including, but not limited to, attorney's fees and costs.
SECTION 17. If a partial or final agreement is reached, it shall be reduced to writing and signed by the parties and their counsel, if any. If a partial or full settlement agreement is reached, the mediator shall report the existence of the signed or transcribed agreement to the court without comment within ten (10) days after completion of the mediation. If the parties do not reach an agreement as to any matter as a result of mediation, the mediator shall report the lack of an agreement to the court without comment or recommendation. In the case of an impasse, the report shall advise the court who attended the mediation, and a copy of the RMFM Program Form or any amended RMFM Program Form shall be attached to the report for the court to determine if at least one (1) of the plaintiff's representative named in the RMFM Program Form appeared for mediation.
SECTION 18. All mediation communications occurring as a result of this act, including information provided to the program manager that is not filed with the court, shall be confidential and inadmissible in any later legal proceeding, unless otherwise provided for by law.
SECTION 19. (1) In all residential foreclosure actions, if a notice for trial, motion for default final judgment, or motion for summary judgment is filed with the clerk of court, no action will be taken by the court to set a final hearing or enter a summary or default final judgment until the requirements of this act have been met. In cases involving a homestead residence, the circuit court judge shall require that copies of either (a) the most recently filed RMFM Program Form and the report of the mediator, or (b) the most recently filed RMFM Program Form and the notice of borrower's nonparticipation be sent to the circuit judge by the plaintiff or plaintiff's counsel before setting a final hearing or delivered with the packet requesting a summary or default final judgment.
(2) Unless otherwise ordered by the court, a certificate of compliance shall be filed with a motion for default final judgment, a motion for summary judgment, or a notice for trial. A copy of the certificate of compliance must accompany the submission of any proposed order for a default final judgment, summary judgment, or final judgment of foreclosure.
(3) The failure of a party to fully comply with the provisions of this act may result in the imposition of any sanctions available to the court, including dismissal of the cause of action without further notice.
SECTION 20. (1) If the plaintiff certifies in the RMFM Program Form that the property is not a homestead residence when suit is filed, plaintiff's counsel must file and serve with the complaint a certification identifying the agent of plaintiff who has full authority to settle the case without further consultation.
(2) If the plaintiff certifies in the RMFM Program Form that the property is not a homestead residence, the matter may proceed to a final hearing, summary judgment, or default final judgment in accordance with the Mississippi Rules of Civil Procedure without any further requirement to attend mediation, unless otherwise ordered by the circuit court judge.
SECTION 21. (1) The fee structure for the RMFM Program is based on the assumption that a successful mediation can be accomplished with one (1) mediation session. Accordingly, the reasonable program fees for the managed mediation, including foreclosure counseling, the mediator's fee, and administration of the managed mediation program, is a total of no more than Seven Hundred Fifty Dollars ($750.00) payable as follows:
(a) Not more than Four Hundred Dollars ($400.00) paid by plaintiff at the time suit is filed, for administrative fees of the RMFM Program in the amount of Two Hundred Seventy-five Dollars ($275.00), and fees for outreach to the borrower and foreclosure counseling in the amount of One Hundred Twenty-five Dollars ($125.00); and
(b) Not more than Three Hundred Fifty Dollars ($350.00) paid by plaintiff within ten (10) days after notice of the mediation conference is filed for the mediation fee component of the RMFM Program fees.
(2) If more than one (1) mediation session is needed, the total program fee stated above will also cover a second mediation session. However, if an additional mediation session is needed after the second session, the plaintiff shall be responsible for the payment of the program fees for the additional mediation sessions, unless the parties agree otherwise. The program fees for the third and each later mediation session shall be not more than Three Hundred Fifty Dollars ($350.00) per session.
(3) All program fees shall be paid directly to the program manager. If the case is not resolved through the mediation process, the circuit court judge may tax the program fees, in whole or in part, as a cost or apply it as a set off in the final judgment of foreclosure.
(4) If the borrower cannot be located, chooses not to participate in the RMFM Program, or if the borrower does not make any contact with the foreclosure counselor, the plaintiff shall be entitled to a refund of the portion of the program fees attributable to foreclosure counseling. If mediation is scheduled and the borrower announces an intention not to participate further in the RMFM Program before the mediation session, or if the case settles and the program manager has notice of the settlement at least five (5) days before the mediation session, the plaintiff shall be entitled to a refund of the program fees allocated for the mediation session. If notice of settlement is not received by the program manager at least five (5) days before the scheduled mediation session, the plaintiff shall not be entitled to any refund of mediation fees.
(5) The total fees include the mediator's fees and costs; the cost for the borrower to attend a foreclosure counseling session with an approved mortgage foreclosure counselor; and the cost to the program manager for administration of the managed mediation program, which includes, but is not limited to, providing neutral meeting and caucus space, scheduling, telephone lines and instruments, infrastructure to support a web-enabled information platform, a secure dedicated email address or other secure system for information transmittal, and other related expenses incurred in managing the foreclosure mediation program.
SECTION 22. (1) The program manager shall be responsible for monitoring whether the RMFM Program Form has been filed in all residential foreclosure actions that begin on or after July 1, 2016, and whether the RMFM Program fees have been paid if the residence is a homestead residence. The program manager shall send compliance reports to the circuit court judge or the judge's designee in the format and with the frequency required by the judge.
(2) The program manager may assist with enforcing compliance with this act upon filing a written motion authorized by the Mississippi Rules of Civil Procedure, stating with particularity the grounds therefor and the relief or order sought.
(3) The program manager shall also provide the circuit court judge with periodic reports as to whether plaintiffs and borrowers are satisfied with the RMFM Program.
(4) The program manager shall also provide the circuit court judge with reports with statistical information about the status of cases in the RMFM Program and RMFM Program finances in the format and with the frequency required by the judge.
(5) The program manager shall provide to the clerk of court all original compliance reports, together with the activity report; all original mediators' reports; and any original motions submitted to the program manager. The program manager shall use E-filing (where available) to file the paperwork with the clerk of court.
SECTION 23. (1) Any plaintiff who has filed five (5) or more foreclosure actions while this act is in effect shall appoint two (2) RMFM Program liaisons, one (1) of whom shall be a lawyer and the other a representative of the entity servicing the plaintiff's mortgages, if any, and, if none, a representative of the plaintiff. Plaintiff's counsel shall provide written notice of the name, phone number (including extension), email, and mailing address of both liaisons to the circuit court judge and the program manager within thirty (30) days after July 1, 2017, and on the first Monday of each July thereafter while this act is in effect.
(2) The liaisons shall be informed of the requirements of this act and shall be capable of answering questions concerning the administrative status of pending cases and the party's internal procedures relating to the processing of foreclosure cases, and be readily accessible to discuss administrative and logistical issues affecting the progress of the plaintiff's cases through the RMFM Program. Plaintiff's counsel shall promptly inform the circuit court judge and program manager of any changes in designation of the liaisons and the contact information of the liaisons. The liaisons shall act as the court's point of contact if the plaintiff fails to comply with this act on multiple occasions and there is a need to communicate with the plaintiff concerning administrative matters of mutual interest.
SECTION 24. (1) The program manager shall post on the website of the RMFM Program the list of the mediators on the List of Court Annexed Mediation Program Mediators that it will use to implement the RMFM Program and will state in writing the criteria, subject to approval of the circuit court judge, the program will use in selecting mediators. The program manager shall also state in writing the procedure, subject to the approval of the circuit court judge, that the program will use to rotate the appointment of mediators, and maintain a list of the mediation site(s) in the circuit court district that the mediators designate their willingness to mediate. The RMFM Program shall encourage the use of mediators who have been trained to mediate mortgage foreclosure cases, reflecting the diversity of the community in which it operates. Assignment of mediators shall be on a rotation basis that fairly spreads work throughout the pool of mediators working in the RMFM Program, unless the parties mutually agree on a specific mediator or the case requires a particular skill on the part of the mediator.
(2) Mediators who are on the list of approved mediators maintained by the program manager on July 1, 2017, may continue to mediate cases referred to the RMFM Program; however, those mediators shall not continue working in the RMFM Program if they have not completed the training requirements imposed by Section 4 of this act within ninety (90) days after the effective date of this act.
SECTION 25. (1) Mortgage lenders, whether private individuals, commercial institutions, or mortgage servicing companies, are encouraged to use any form of alternative dispute resolution, including mediation, before filing a mortgage foreclosure lawsuit with the clerk of the court. Lenders are encouraged to enter into the mediation process with their borrowers before filing foreclosure actions to reduce the costs to the parties for maintaining the litigation and to reduce to the greatest extent possible the stress on the limited resources of the courts caused by the large numbers of those actions being filed across the state.
(2) If the parties participated in pre-suit mediation using the RMFM Program or participated in any other pre-suit mediation program having procedures substantially complying with the requirements of this act, including provisions authorizing the exchange of information, foreclosure counseling, and requiring use of mediators specially trained to mediate residential mortgage foreclosure actions, the plaintiff shall so certify in the RMFM Program Form, in which case the plaintiff and borrower shall not be required to participate in mediation again unless ordered to do so by the circuit court judge. A borrower may file a motion contesting whether pre-suit mediation occurred in substantial compliance with the RMFM Program.
(3) Nothing in this section precludes the circuit court judge from sending the case to mediation after suit is filed, even if pre-suit mediation resulted in an impasse or there was a breach of the pre-suit mediation agreement.
SECTION 26. This act shall take effect and be in force from and after July 1, 2017.
