An Act Implementing the Division of Banks Mortgage Summit Recommendations
House 4085 is a message filed by Governor Deval Patrick to provide assistance to homeowners
facing foreclosure, criminalize mortgage fraud, prohibit abusive mortgage foreclosure rescue schemes, and other measures as part of a comprehensive plan to prevent predatory lending and protect families facing foreclosures.
SECTION 1 of this legislation seeks to add a new section, section 35DD, to Massachusetts General Laws chapter 10 to establish a Division of Banks Trust Fund which would be used solely in connection with the establishment, administration, operation and updating of a mortgage foreclosure database which would be established under SECTION 5 of this legislation. The Division of Banks Trust Fund would consist of 100% of the fee revenue collected from the filing fee in connection with filing a Notice of Intent To Foreclose and Right To Cure with the Division as required by SECTION 5 of the legislation. The filing fee for the Notice of Intent To Foreclose and Right To Cure shall be established by the Secretary of Administration and Finance.
SECTION 2 of this legislation seeks to add a new section, section 6D, to chapter 183 of the Massachusetts General Laws in order to require every mortgage and assignment of a mortgage secured by one-to-four family, owner-occupied real estate in the Commonwealth to have endorsed on it the name, post office address and license number of the mortgage broker and, if applicable, the mortgage loan originator responsible for placing such mortgage loan with a mortgage lender. This endorsement, or a notation that no mortgage broker or mortgage loan originator was involved in the transaction, shall be recorded as part of the mortgage. Failure to include this information shall not affect the validity of the mortgage. No register of deeds shall accept a mortgage or assignment of mortgage for recording unless it is in compliance with this section.
SECTION 3 amends Massachusetts General Laws chapter 183, section 27 to mandate that a foreclosing mortgagee provide to the mortgagor a written, itemized accounting of the disposition of the proceeds of a foreclosure sale, including, but not limited to, the sale price, legal fees, auctioneer fees, publication costs, and other fees, and any surplus due to the mortgagor or the amount of any deficiency within 30 days of the date of the foreclosure sale.
SECTION 4 seeks to add a new section, section 69, to chapter 183 of the Massachusetts General Laws in order to prohibit a mortgage lender from making a variable or adjustable rate mortgage loan on one-to-four family, owner-occupied property in the Commonwealth unless (1) the loan meets all the standard underwriting criteria for a conventional mortgage loan as established by the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation and is rated “A” paper under those criteria; or (2) the mortgagor affirmatively opts in writing for the
variable or adjustable rate mortgage loan and receives certification from a counselor with a third-party nonprofit organization approved by the U.S. Department of Housing and Urban Development, a housing agency of the Commonwealth, or the regulatory agency which has jurisdiction over the creditor, that the mortgagor has received counseling on the advisability of the loan transaction. Counseling shall be allowed by telephone. If a mortgage loan is made in violation of this section, the variable or adjustable rate terms shall not be enforceable and the mortgagee shall only be entitled to collect interest at the lesser of the original interest rate,
including any discounted rate, or the current adjusted rate. The Commissioner of Banks may issue directives or guidelines, or adopt regulations to administer this section.
SECTION 5 amends the Massachusetts foreclosure statute, Massachusetts General Laws chapter 244, by adding four new sections, section 14A, 14B, 14C and 14D.
Section 14A prohibits a mortgage holder from foreclosing on an owner-occupied, one-to-four family property unless the mortgagee has provided the borrower with a 90-day Notice of Intent To Foreclose and Right To Cure as set out in the legislation. A copy of this notice shall be filed with the Division and this filing shall include the rate of interest on such loan and whether the loan has a variable or fixed rate of interest. Section 14A also prohibits the lender from charging the borrower any attorneys’ fees or other fees and charges other than per diem interest during the
90-day right to cure.
Section 14B states that the mortgagee may, without further action, proceed with the foreclosure sale if the borrower fails to cure the default during the 90-day right to cure. If the property is sold at a foreclosure sale, the mortgagee shall notify the Division, in writing, of the date of such foreclosure sale and the purchase price obtained at such sale and shall include a copy of the Notice of Intent To Foreclose and Right To Cure for said property. The information filed is relative to the foreclosure database established by Section 14D.
Section 14C prohibits foreclosure rescue schemes by making any reconveyance agreement between a homeowner who is in default or foreclosure and a purchaser illegal and unenforceable in the Commonwealth unless the purchaser is a spouse, parent, grandparent, child, grandchild, sibling, aunt or uncle of the homeowner.
Section 14D requires the Division of Banks to maintain a foreclosure database relative to foreclosure activity by mortgage lenders, mortgage holders and mortgage servicers as well as mortgage brokers and loan originators who placed such mortgage loans in the Commonwealth. Such data shall be public and include, among other things, analysis on foreclosure notices compared to foreclosure sales and any patterns on the geographic location on foreclosures. SECTION 1 of the legislation relates to the expenses required for the administration of the database.
SECTION 6 amends Massachusetts General Laws chapter 255E, section 2 in order to delete the mortgage lender or mortgage broker licensing exemption for any nonprofit agency or corporation incorporated under the laws of the Commonwealth for the purpose of assisting low to moderate income households in the purchase or rehabilitation of family residences of four or less units and which holds tax exempt status granted under the provisions of Section 501(c)(3) and 501(c)(4) of the Internal Revenue Code.
SECTION 7 establishes the crime of mortgage fraud in the Commonwealth by adding a new Section 35A to Massachusetts General Laws chapter 266. This amendment sets forth the various activities that trigger this statute, when, with the intent to defraud, a person knowingly:
(1) makes or causes to be made any deliberate material misstatement, material
misrepresentation or material omission during or in connection with the mortgage lending
process with the intention that it be relied on by a mortgage lender, mortgagor or any
other party to the mortgage lending process;
(2) uses or facilitates the use of any deliberate material misstatement, material
misrepresentation or material omission during the mortgage lending process with the
intention that it be relied on by a mortgage lender, mortgagor, or any other party to the
mortgage lending process;
(3) receives any proceeds or other funds in connection with a residential mortgage
closing that the person knew resulted from a violation of (1) or (2) of this subsection;
(4) coerces or induces a real estate appraiser to inflate the value of real property used as
collateral for a residential mortgage loan;
(5) represents or implies that a real estate appraiser will not be selected to conduct an
appraisal or selected for future appraisal work unless the appraiser agrees in advance to a
value, range of values or a minimum value for the real property;
(6) represents or implies that a real estate appraiser will not be paid for an appraisal
unless the appraiser agrees in advance to a value, range of values or a minimum value for
the real property;
(7) conspires to violate any of the provisions of paragraphs (1) through (6) of this
(8) files or causes to be filed with the register of deeds of any county of the
Commonwealth any document that the person knows to contain a deliberate material
misstatement, material misrepresentation or material omission.
There are provisions for venue for litigation, including the county in which the residential
property is located; any county in which any act was performed in furtherance of the violation;
any county in which any person alleged to have violated this section had control or possession of
any proceeds of the violation; if a closing occurred, in any county in which the closing occurred;
or any county in which a document containing a deliberate material misstatement, material
misrepresentation, or material omission is filed with the register of deeds.
There is a provision authorizing District Attorneys and the Attorney General to conduct the
criminal investigation and prosecution under this section. The penalty for a violation of this
section is imprisonment in state prison for up to 5 years or in a house of correction for up to 2.5
years, by a fine not to exceed $10,000 for a natural person or $100,000 for any other person, or by
both such fine and imprisonment. If a violation of this section involves engaging or participating
in a pattern of residential mortgage fraud or a conspiracy or endeavor to engage or participate in a
pattern of residential mortgage fraud, the penalty is imprisonment in state prison for up to 15
years and by a fine not to exceed $50,000 for a natural person or $500,000 for any other person,
or by both such fine and imprisonment. Each instance of residential mortgage fraud under this
section is a separate offense. All real and personal property subject to a violation of this section
shall be subject to forfeiture to the Commonwealth.
SECTION 8 of the legislation authorizes the Division of Banks Trust Fund, established under
SECTION 1 of this legislation, to retain all unexpended funds for fiscal years 2008, 2009 and
2010. Funds deposited in the Fund that remain unexpended at the end of the fiscal year and that
exceed 20% of the Fund’s expenditures for the previous fiscal year shall revert to the General
Fund beginning in Fiscal Year 2011.
SECTION 9 makes the act effective upon passage.
Note: As the title indicates, this legislation is based on the recommendations of a Mortgage
Summit convened by the Massachusetts Division of Banks. The Mortgage Summit resulted in
the formation of two Working Groups. One was to focus on Education and Foreclosure
Assistance and the other had jurisdiction for Rules and Enforcement. The Working Groups
concluded their work and made their recommendations at the end of March. This full report,
entitled Report of the Mortgage Summit Working Groups, is available at http://www.mass.gov/Eoca/docs/dob/Mortgage_Summit_Final_20070409.pdf.