Bill Text: NC S1216 | 2010 | Regular Session | Amended
Bill Title: Extend Emergency Foreclosure Program
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Passed) 2010-08-02 - Ch. SL 2010-168 [S1216 Detail]
Download: North_Carolina-2010-S1216-Amended.html
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2009
S 2
SENATE BILL 1216
Commerce Committee Substitute Adopted 6/8/10
Short Title: Extend Emergency Foreclosure Program. |
(Public) |
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Sponsors: |
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Referred to: |
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May 19, 2010
A BILL TO BE ENTITLED
AN ACT to amend and extend the emergency program to reduce home foreclosures act.
The General Assembly of North Carolina enacts:
SECTION 1. Article 11 of Chapter 45 of the General Statutes reads as rewritten:
"Article 11.
"Emergency Program to Reduce Home Foreclosures.
"§ 45‑100. (For expiration date, see note) Title.
This Article shall be known as the Emergency Program to Reduce Home Foreclosures Act.
"§ 45‑101. (For expiration date, see note) Definitions.
The following definitions apply throughout this Article:
(1) Act as a mortgage servicer. – To engage, whether for compensation or gain from another or on its own behalf, in the business of receiving any scheduled periodic payments from a borrower pursuant to the terms of any mortgage loan, including amounts for escrow accounts, and making the payments of principal and interest and such other payments with respect to the amounts received from the borrower as may be required pursuant to the mortgage loan, the mortgage servicing loan documents, or servicing contract.
(1a) Annual percentage rate. – Defined in G.S. 24‑1.1F.
(1b) Home loan. – A loan that has all of the following characteristics:
a. The loan is not (i) an equity line of credit as defined in G.S. 24‑9, (ii) a construction loan as defined in G.S. 24‑10, (iii) a reverse mortgage transaction, or (iv) a bridge loan with a term of 12 months or less, such as a loan to purchase a new dwelling where the borrower plans to sell a current dwelling within 12 months.
b. The borrower is a natural person.
c. The debt is incurred by the borrower primarily for personal, family, or household purposes.
d. The principal amount of the loan does not exceed the conforming loan size limit for a single‑family dwelling as established from time to time by Fannie Mae.
e. The loan is secured by (i) a security interest in a manufactured home, as defined in G.S. 143‑145, in the State which is or will be occupied by the borrower as the borrower's principal dwelling, (ii) a mortgage or deed of trust on real property in the State upon which there is located an existing structure designed principally for occupancy of from one to four families that is or will be occupied by the borrower as the borrower's principal dwelling, or (iii) a mortgage or deed of trust on real property in the State upon which there is to be constructed using the loan proceeds a structure or structures designed principally for occupancy of from one to four families which, when completed, will be occupied by the borrower as the borrower's principal dwelling.
f. A purpose of the loan is to (i) purchase the dwelling, (ii) construct, repair, rehabilitate, remodel, or improve the dwelling or the real property on which it is located, (iii) satisfy and replace an existing obligation secured by the same real property, or (iv) consolidate existing consumer debts into a new home loan.
(2) Mortgage lender. – A person engaged in the business of making mortgage loans for compensation or gain.
(3) Mortgage servicer. – A person who directly or indirectly acts as a mortgage servicer as that term is defined in subdivision (1) of this section or who otherwise meets the definition of the term "servicer" in the Real Estate Settlement Procedures Act, 12 U.S.C. § 2605(i), with respect to mortgage loans.
(3a) Rate spread home loan. – A home loan in
which all the following apply:
a. The difference between the annual
percentage rate for the loan and the yield on U.S. Treasury securities having
comparable periods of maturity is either equal to or greater than (i) three percentage
points (3%), if the loan is secured by a first lien mortgage or deed of trust,
or (ii) five percentage points (5%), if the loan is secured by a subordinate
lien mortgage or deed of trust. Without regard to whether the loan is subject
to or reportable under the provisions of the Home Mortgage Disclosure Act (12
U.S.C. § 2801, et seq.) (HMDA), the difference between the annual percentage
rate and the yield on Treasury securities having comparable periods of maturity
shall be determined using the same procedures and calculation methods
applicable to loans that are subject to the reporting requirements of HMDA, as
those procedures and calculation methods are amended from time to time,
provided that the yield on Treasury securities shall be determined as of the
fifteenth day of the month prior to the application for the loan.
b. The difference between the annual
percentage rate for the loan and the conventional mortgage rate is either equal
to or greater than (i) one and three‑fourths percentage points (1.75%),
if the loan is secured by a first lien mortgage or deed of trust, or (ii) three
and three‑fourths percentage points (3.75%), if the loan is secured by a
subordinate lien mortgage or deed of trust. For purposes of this calculation,
the "conventional mortgage rate" means the most recent daily contract
interest rate on commitments for fixed‑rate first mortgages published by
the Board of Governors of the Federal Reserve System in its Statistical Release
H.15, or any publication that may supersede it, during the week preceding the
week in which the interest rate for the loan is set.
(4) Subprime loan. – A loan, originated on or
after January 1, 2005, but before December 31, 2007, that meets the definition
of a rate spread home loan under this Article. A mortgage servicer may rely on
a chart reflecting the appropriate interest rate triggers for rate spread home
loans for each day of the period covered by this Article provided by the
Commissioner of Banks for the purposes of determining if a loan is a subprime
loan covered by this Article. The Commissioner shall provide the chart at least
60 days prior to the effective date of this act."
"§ 45‑102.
(For expiration date, see note) Pre‑foreclosure notice for subprime
home loans.
At least 45 days prior to the filing of a notice of hearing
in a foreclosure proceeding on a primary residence, mortgage servicers of subprime
home loans shall send written notice by mail to the last known
address of the borrower to inform the borrower of the availability of resources
to avoid foreclosure, including:
(1) An itemization of all past due amounts causing the loan to be in default.
(2) An itemization of any other charges that must be paid in order to bring the loan current.
(3) A statement that the borrower may have options available other than foreclosure and that the borrower may discuss available options with the mortgage lender, the mortgage servicer, or a counselor approved by the U.S. Department of Housing and Urban Development.
(4) The address, telephone number, and other contact information for the mortgage lender, the mortgage servicer, or the agent for either of them who is authorized to attempt to work with the borrower to avoid foreclosure.
(5) The name, address, telephone number, and other contact information for one or more HUD‑approved counseling agencies operating to assist borrowers in North Carolina to avoid foreclosure.
(6) The address, telephone number, and other contact information for the consumer complaint section of the Office of Commissioner of Banks.
"§ 45‑103.
(For expiration date, see note) Pre‑foreclosure information to be filed
with the Administrative Office of the Courts for certain subprime
home loans.
(a) Within three business days of mailing the notice
required by G.S. 45‑102, the mortgage servicer shall file certain
information with the Administrative Office of the Courts. The filing shall be
in an electronic format, as designated by the Administrative Office of the
Courts, and shall contain the name and address of the borrower borrower,
the due date of the last scheduled payment made by the borrower, and the
date the notice was mailed to the borrower.
(b) As permitted by applicable State and federal law, optional information may be requested from the mortgage servicer to facilitate further review by the State Home Foreclosure Prevention Project described in G.S. 45‑104. The nature of the optional information requested shall be determined in connection with the design of the database established by subsection (c) of this section. This optional information shall be used by the State Home Foreclosure Prevention Project to prioritize efforts to reach borrowers most likely to avoid foreclosure and to prevent delay for defaults where foreclosure is unavoidable.
(c) No later than October 1, 2008, the Administrative
Office of the Courts shall establish an internal database to track information
provided in this section. The Commissioner of Banks shall design and develop
this database, in consultation with the Administrative Office of the Courts, in
a manner to promote the efforts of the State Home Foreclosure Prevention
Project. Only the Administrative Office of the Courts, the Office of
Commissioner of Banks, and the clerk of court as provided by G.S. 45‑107
shall have access to the database."
"§ 45‑104.
(For expiration date, see note) State Home Foreclosure Prevention Project.Project
and Fund.
(a) The Commissioner of Banks is authorized to
establish the State Home Foreclosure Prevention Project. The purpose of the
Project is to seek solutions to avoid foreclosures for certain subprime
home loans. In developing the Project, the Commissioner may include input
from HUD‑approved housing counselors, community organizations, state
agencies, mortgage lenders, mortgage servicers, and other partners.
(b) There is established a State Home Foreclosure Prevention Trust Fund to be managed and maintained by the Office of the Commissioner of Banks. The funds shall be held separate from any other funds received by the Office of the Commissioner of Banks in trust for the operation of the State Home Foreclosure Prevention Project.
(c) Upon the filing of the information required under G.S. 45‑103, the mortgage servicer shall pay a fee of seventy‑five dollars ($75.00) to the State Home Foreclosure Prevention Trust Fund. The fee shall not be charged more than once for a home loan covered by this act. The collection of this fee shall be managed by the Office of the Commissioner of Banks in a manner so as to minimize burdens on mortgage servicers in complying with the requirements of this section.
(d) The Commissioner of Banks shall allocate funds from the State Home Foreclosure Prevention Trust Fund to implement the purposes of this act in the following manner:
(1) An amount, not to exceed the greater of two million two hundred thousand dollars ($2,200,000) or thirty percent (30%) of the funds per year, to cover the administrative costs of the operation of the program by the Office of the Commissioner of Banks, including managing on behalf of the Administrative Office of the Courts the database identified in G.S. 45‑103, expenses associated with informing homeowners of State resources available for foreclosure prevention, expenses associated with connecting homeowners to available resources, and assistance to homeowners and counselors in communicating with mortgage servicers.
(2) An amount, not to exceed the greater of three million four hundred thousand dollars ($3,400,000) or forty percent (40%) per year, to make grants to or reimburse nonprofit housing counseling agencies for providing foreclosure prevention counseling services to homeowners involved in the State Home Foreclosure Prevention Project.
(3) An amount, not to exceed thirty percent (30%) of the total funds collected per year, to make grants to or reimburse nonprofit legal service providers for services rendered on behalf of homeowners in danger of defaulting on a home loan to avoid foreclosure, limited to legal representation such as negotiation of loan modifications or other loan work‑out solutions, defending homeowners in foreclosure or representing homeowners in bankruptcy proceedings, and research and counsel to homeowners regarding the status of their home loans.
(4) Any funds remaining upon the expiration of the State Home Foreclosure Prevention Project shall be directed to the North Carolina Housing Trust Fund.
(e) The Commissioner of Banks shall have the discretion to enter into an agreement to administer funds under subsections (d)(2) and (3) of this section in a manner that complements or supplements other State and federal programs directed to prevent foreclosures for homeowners participating in the State Home Foreclosure Prevention Project.
"§ 45‑105. (For expiration date, see note) Extension of foreclosure process.
The Commissioner of Banks shall review information provided
in the database created by G.S. 45‑103 to determine which subprime
home loans are appropriate for efforts to avoid foreclosure. If the
Commissioner reasonably believes, based on a full review of the loan
information, the mortgage servicer's loss mitigation efforts, the borrower's
capacity and interest in staying in the home, and other appropriate factors,
that further efforts by the State Home Foreclosure Prevention Project offer a
reasonable prospect to avoid foreclosure on primary residences, the
Commissioner shall have the authority to extend one time under this Article the
allowable filing date for any foreclosure proceeding on a primary residence by
up to 30 days beyond the earliest filing date established by the pre‑foreclosure
notice. If the Commissioner makes the determination that a loan is subject to
this section, the Commissioner shall notify the borrower, mortgage servicer,
and the Administrative Office of the Courts.
"§ 45‑106. (For expiration date, see note) Use and privacy of records.
The data provided to the Administrative Office of the Courts pursuant to G.S. 45‑103 shall be exclusively for the use and purposes of the State Home Foreclosure Prevention Project developed by the Commissioner of Banks in accordance with G.S. 45‑104. The information provided to the database is not a public record, except that a mortgage lender and a mortgage servicer shall have access to the information submitted only with regard to its own loans. Provision of information to the Administrative Office of the Courts for use by the State Home Foreclosure Prevention Project shall not be considered a violation of G.S. 53B‑8. A mortgage servicer shall be held harmless for any alleged breach of privacy rights of the borrower with respect to the information the mortgage servicer provides in accordance with this Article.
"§ 45‑107. (For expiration date, see note) Foreclosure filing.
(a) For the duration of the program authorized by this
Article, foreclosure notices filed on subprime home loans on or
after November 15, 2008, November 1, 2010, shall contain a
certification by the filing party that the pre‑foreclosure notice
required by G.S. 45‑102 and the pre‑foreclosure information
required by G.S. 45‑103 were provided in accordance with this
Article and that the periods of time established by the Article have elapsed.
(b) The clerk of superior court or other judicial officer may have access to the pre‑foreclosure database to confirm information provided in subsection (a) of this section. A materially inaccurate statement in the certification shall be cause for dismissal without prejudice of any foreclosure proceeding on a primary residence initiated by the mortgage servicer and for payment by the filing party of costs incurred by the borrower in defending the foreclosure proceeding."
SECTION 2. G.S. 45‑21.16(c2) reads as rewritten:
"(c2) (Expires October 31, 2010) In any
foreclosure filed on or after November 15, 2008, November 1, 2010,
where the underlying mortgage debt is a subprime home loan as
defined in G.S. 45‑101(4), G.S. 45‑101(1b),
the notice required by subsection (b) of this section shall contain a
certification by the filing party that the pre‑foreclosure notice and
information required by G.S. 45‑102 and G.S. 45‑103 were
provided in all material respects and that the periods of time established by
Article 11 of this Chapter have elapsed."
SECTION 3. G.S. 45‑21.16(d) reads as rewritten:
"(d) (Effective until October 31, 2010) The
hearing provided by this section shall be held before the clerk of court in the
county where the land, or any portion thereof, is situated. In the event that
the property to be sold consists of separate tracts situated in different
counties or a single tract in more than one county, only one hearing shall be
necessary. However, prior to that hearing, the mortgagee or trustee shall file
the notice of hearing in any other county where any portion of the property to
be sold is located. Upon such hearing, the clerk shall consider the evidence of
the parties and may consider, in addition to other forms of evidence required
or permitted by law, affidavits and certified copies of documents. If the clerk
finds the existence of (i) valid debt of which the party seeking to foreclose
is the holder, (ii) default, (iii) right to foreclose under the instrument,
(iv) notice to those entitled to such under subsection (b), and (v) that the
underlying mortgage debt is not a subprime home loan as defined
in G.S. 45‑101(4), G.S. 45‑101(1b), or if
the loan is a subprime home loan under G.S. 45‑101(4),
G.S. 45‑101(1b), that the pre‑foreclosure notice under G.S. 45‑102
was provided in all material respects, and that the periods of time established
by Article 11 of this Chapter have elapsed, then the clerk shall authorize the
mortgagee or trustee to proceed under the instrument, and the mortgagee or
trustee can give notice of and conduct a sale pursuant to the provisions of
this Article. A certified copy of any authorization or order by the clerk shall
be filed in any other county where any portion of the property to be sold is
located before the mortgagee or trustee may proceed to advertise and sell any
property located in that county. In the event that sales are to be held in more
than one county, the provisions of G.S. 45‑21.7 apply."
SECTION 4. This act becomes effective November 1, 2010, and expires on May 31, 2013.