Here are some Programs that may help, but in general most are disregarded by the lenders. This information is a matter of public record and not intended to create an attorney client relationship or give legal advise in any way.
“Residential Foreclosure Prevention Laws and Programs: In 2008-09, Congress enacted an exhaustive body of consumer protective legislation meant to reduce the rise in residential foreclosures and stabilize property values. The Federal Reserve Board has issued related consumer protection regulations and, in 2009, the U.S. Treasury Department instituted residential mortgage modification and refinancing programs to assist distressed homeowners. State law too was revised to help stave off the mounting foreclosure crisis in California.
A comprehensive treatment of these developments is beyond the scope of this Practice Guide. However, a summary of the most relevant programs is set forth below:
a. California Perata Mortgage Relief Act (interim requirements re notice of default for certain residential loans):
b.California Foreclosure Prevention Act (interim requirements re notice of sale for certain residential loans):
c. California residential mortgage loan modification laws:
d. Housing and Economic Recovery Act of 2008 (HERA): The Housing and Economic Recovery Act of 2008 (HERA, Pub.L. 110-289, 122 Stat. 2654) was signed into law July 30, 2008. Components of the HERA key to preventing residential foreclosures follow:
1) HOPE for Homeowners Act of 2008 (HOPE): HERA spawned the HOPE for Homeowners Act of 2008 (HOPE), a voluntary program authorizing the FHA torefinance homeowners into 30-year fixed rate FHA mortgages. From October 1, 2008, until September 30, 2011, the principal balance and interest rate for eligible homeowner mortgages is reduced through refinancing into affordable FHA-insured loans based on current property values. [12 USCA | 1715z-23]
To qualify, a homeowner’s existing mortgage must have originated on or before January 1, 2008. In addition, the homeowner must, among other things, be unable to afford his or her current mortgage payments, as defined, have a mortgage debt-to-income ratio greater than 31% as of March 1, 2008, provide documentation the home is his or her primary residence, and certify he or she has not intentionally defaulted on the subject mortgage. [See 12 USCA | 1715z-23(e),(s)(3)]
The principal loan amount generally cannot exceed 90% of the appraised value of the subject property. Moreover, homeowners must share equity and any future appreciation in the subject property with the FHA. [See 12 USCA | 1715z-23(e)(2),(k)]
(2) Servicemembers Civil Relief Act: HERA enhanced the statutory foreclosure protections afforded servicemembers. Significantly, an action to foreclose on a servicemember’s secured real property that is filed during, or within nine months after, the servicemember’s military service period may be stayed, as defined, for a period of time ‘as justice and equity require.’ Moreover, any sale, foreclosure or seizure of the real property is invalid if made during, or within nine months after, the servicemember’s service period. [50 App. USCA | 533(b), (c) (12/31/12 ‘sunset’ date)]
In addition, a trust deed (or other security in the nature of a mortgage) taken by a servicemember alone or jointly with his or her spouse, before the servicemember enters military service, may not bear interest in excess of 6% per year during the servicemember’s service period and for one year thereafter. [50 App. USCA | 527(a)]
e.[6:511.6] Helping Families Save Their Homes Act of 2009: The Helping Families Save Their Homes Act was signed into law May 20, 2009. Its purpose is to prevent mortgage foreclosures and enhance mortgage credit availability. Among other things, the Act authorizes mortgage loan servicers to modify loans and engage in other loss mitigation activities consistent with guidelines issued by the Secretary of the Treasury. It also provides a servicer ‘safe harbor’ for mortgage loan modifications and amends various provisions for refinancing mortgage loans under the HOPE program . [See 15 USCA | 1639a]
The Act recommends that the Department of Justice establish a nationwide mortgage fraud task force and that a foreclosure moratorium be instituted for first mortgages secured by the borrower’s principal dwelling until such time as foreclosure mitigation provisions (e.g., the HOPE program) have been implemented and determined operational. [Pub.L. 111-22, 123 Stat. 1632, || 301 & 401]
f. Making Home Affordable Refinance Program (HARP): The Making Home Affordable Refinance Program was developed by the U.S. Treasury Department and implemented in March, 2009. It assists homeowners who are current on their mortgage (and those unable to refinance because of declining property values) to refinance into more affordable loans. The program, scheduled to end December, 2012, applies only to first mortgages that do not exceed 125% of the current market value of the property.
To qualify, a homeowner must be the owner occupant of a one-to-four-unit property and current on his or her mortgage. In addition, the loan must be owned or securitized by Fannie Mae or Freddie Mac.
(Fannie Mae and Freddie Mac each have tollfree telephone numbers and Web sites to provide information on loans they own or securitize.)
g. Home Affordable Modification Program (HAMP): The Home Affordable Modification Program (HAMP) was developed by the U.S. Treasury Department as part of the Making Home Affordable Refinance Program (above). HAMP works in tandem with the HOPE program (¶ 6:511.4), allowing homeowners who are behind on their mortgage payments to modify the terms of their first mortgage by lowering monthly payments to 31% of their gross income. This level is achieved by reducing the interest rate to as low as 2% and extending the term of the loan or deferring payment on part of the principal. The program includes the use of short sales and deeds in lieu of foreclosure if a borrower cannot complete the modification process.
A critical eligibility requirement is that default in payment by the borrower be reasonably foreseeable. Servicer participation in HAMP is voluntary; however, Fannie Mae, Freddie Mac and financial institutions receiving assistance under the Financial Stability Plan are required to implement the plan. The program is scheduled to end December 31, 2012.
(1) Participating servicers who fail to provide HAMP loan modifications to eligible homeowners; defense to foreclosure? Servicers participating in HAMP are required to review a borrower’s eligibility for the program and cannot conduct a foreclosure sale absent such a review. In fact, HAMP servicers are not even supposed to initiate foreclosure proceedings until a borrower has been evaluated and determined ineligible for the program, or if the borrower fails to respond to the servicer’s Trial Period Plan offer. [See Pub.L. 111-22, | 401]
The HAMP guidelines–explicitly adopted by Congress in the Helping Families Save Their Homes Act –are directly analogous to FHA rules requiring servicers to engage in loss mitigation. As with the FHA program, participating servicers must sign a contract with the Treasury financial agent agreeing to review all eligible borrowers according to a Net Present Value (NPV) analysis before proceeding with a foreclosure sale. A servicer’s failure to comply with the HAMP NPV analysis arguably constitutes ‘unclean hands’ and therefore should preclude foreclosure.
h. Home Affordable Foreclosure Alternatives (HAFA): Effective April 5, 2010, the U.S. Treasury Department introduced the Home Affordable Foreclosure Alternatives program (HAFA), which contains viable options for homeowners who are unable to keep their homes through HAMP. Specifically, HAFA provides servicers with incentives to allow short sales or deeds-in-lieu of foreclosure for eligible homeowners who wish to avoid foreclosure. While participation in HAFA cannot save a homeowner from losing his or her property, it can eliminate the effects of a foreclosure on the homeowner’s credit. Servicers participating in HAMP are required to comply with HAFA. The program is scheduled to end December 31, 2012.////