Bill Text: GA HB338 | 2011-2012 | Regular Session | Introduced
Bill Title: Neighborhood Stabilization Act; or NEST Act; enact
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2011-02-28 - House Second Readers [HB338 Detail]
Download: Georgia-2011-HB338-Introduced.html
11 LC
14 0449ER
House
Bill 338
By:
Representative Bryant of the
160th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Title 44 of the Official Code of Georgia Annotated, relating to property,
so as to extensively revise and enact provisions relating to the creation,
transfer, modification, and foreclosure of mortgages and deeds to secure debt as
well as other documents creating security interests; to provide a short title;
to regulate the transfer of security interests; to require recording as
condition of foreclosure; to provide for a minimum period of delinquency before
foreclosure and other proceedings may be commenced; to provide that creditors
must provide owners of residential property with a right to cure and a notice of
such right prior to commencing foreclosure proceedings; to provide for notice of
initiation of foreclosure proceedings and the contents and manner of delivery of
such notice; to prohibit deficiency judgments in certain circumstances and
authorize such judgments in certain other circumstances; to limit the authority
of nominees to initiate foreclosure proceedings or otherwise act for creditors;
to regulate the creation of reverse mortgages and require certain disclosures
and counseling in connection with such transactions; to prohibit fraudulent
activities in the process of foreclosure and provide for remedies related
thereto; to regulate the manner in which mortgages may be modified; to provide
for other related matters; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
This
Act shall be known and may be cited as the Georgia "Neighborhood Stabilization
Act" or "NEST Act."
SECTION
2.
Title
44 of the Official Code of Georgia Annotated, relating to property, is amended
by revising Code Section 44-14-64, relating to transfers of deeds to secure
debt, as follows:
"44-14-64.
(a)
All transfers of deeds to secure debt shall be in writing; shall be signed by
the grantee or, if the deed has been previously transferred, by the last
transferee; and shall be witnessed as required for deeds.
(b)
Transfers of deeds to secure debt may be endorsed upon the original deed or by a
separate instrument identifying the transfer and shall be sufficient to transfer
the property therein described and the indebtedness therein secured, whether the
indebtedness is evidenced by a note or other instrument or is an indebtedness
which arises out of the terms or operation of the deed, together with the powers
granted without specific mention thereof.
(c)
Transfer of a deed to secure debt and the indebtedness therein secured may be
made in whole or in part; provided, however, that, where the transfer is made in
part, that portion of the deed and the indebtedness therein secured to be
transferred shall be stated upon a separate instrument and not upon the original
deed.
(d)
A transfer of a deed to secure debt and the indebtedness therein secured in
whole or in part in accordance with subsections (a) through (c) of this Code
section by a financial institution having deposits insured by an agency of the
federal government or a transfer by a lender who regularly purchases or services
residential real estate loans aggregating a minimum of $1 million secured by a
first deed to secure debt encumbering real estate improved or to be improved by
the construction thereon of one to four family dwelling units, where the
transferor retains the right to service or supervise the servicing of the deed
or interest therein, need not be recorded if:
(1)
The original deed to secure debt has been recorded;
(2)
An agreement in writing exists on or before the date of the transfer between the
transferor and the transferee and sets forth the terms of the transfer and the
interests of the parties thereto; and
(3)
Possession of the deed, the instrument of indebtedness, and the instrument of
transfer is taken by such new transferee for himself or in his representative
capacity or by a representative of such transferee which may include the
transferor or any other transferee, provided that the agreement in paragraph (2)
of this subsection provides for such party to take possession.
(d)
No later than 30 days after the date on which a deed to secure debt or mortgage
loan is sold, partially sold, or otherwise transferred or assigned to a third
party, the creditor that is the new owner or assignee of the debt shall notify
the mortgagor in writing of such transfer; the identity, address, and telephone
number of the new creditor; the date of transfer; and the name of an agent or
representative authorized to act on behalf of the new creditor and shall on the
face of the assignment include a valid mailing address and legal description of
the real property sold, partially sold, or otherwise transferred or
assigned.
(e)
As described in subsection (d) of this Code section, the transfer by a financial
institution or lender of a deed to secure debt and the indebtedness therein
secured in whole or in part without recording in accordance with this Code
section shall be effective to provide the new transferee with priority over all
subsequent claims against the deed and the indebtedness therein secured to the
extent of the interest so transferred, and the priority shall not be lessened by
the fact that the transfer is not recorded; provided, however, that a transfer,
satisfaction, cancellation, release, quitclaim deed, or modification executed
and recorded by the holder of record of the deed to secure debt shall be
effective to transfer, satisfy, cancel, release, quitclaim, or modify, as the
case may be, all interest of the holder of record of the deed to secure debt and
all interest of all transferees claiming by, through, or under the holder of
record of the deed to secure debt.
(e)
A grantor, or his or her transferee or duly authorized representative, shall be
entitled to receive without charge a payoff balance from the holder of a deed to
secure debt on real property by requesting in writing said balance. The
grantor's request shall set forth the period of time which the payoff balance
should be accurate and shall be mailed to the holder of the deed to secure debt
by certified mail or statutory overnight delivery.
(f)
Where the holder of the right to service or supervise the servicing of the
transferred deed to secure debt and the indebtedness therein secured is a
financial institution or lender as described in subsection (d) of this Code
section, it shall have the same rights, responsibilities, and obligations to act
in all matters concerning the servicing, administration, and cancellation of the
deed and indebtedness as to third parties as if no such transfer had taken
place.
(f)
The holder of a deed to secure debt or note secured by real property shall
provide within 30 days of receiving a written request from the grantor or the
grantor's transferee or duly authorized representative, a statement under oath,
from a corporate officer of the payoff balance.
(g)
A transfer of a deed to secure debt shall not be recorded unless it includes the
mailing address of the last transferee thereof. Failure to comply with this
provision shall not be a defense to any foreclosure or grounds to set aside any
foreclosure of any deed to secure debt.
(g)
If the request provided in subsection (e) of this Code section contains
information insufficient to allow compliance, the holder of the debt deed shall
serve upon the grantor or person by whom the request was made, a statement in
writing, stating specifically what additional information is needed, and such
compliance shall constitute compliance with this Code section.
(h)
A grantor or his transferee shall be entitled to receive without charge a payoff
balance from the holder of a deed to secure debt on real property by requesting
in writing said balance and providing a self-addressed stamped
envelope.
(h)
On or after July 1, 2011, if a deed to secure debt or mortgage has been assigned
by the original grantee or mortgagee, the trustee, or any substitute trustee,
under any deed to secure debt or mortgage shall not proceed with any sale of the
property unless: (1) all assignments of the mortgage have been duly recorded
with the land records in the superior court of the county in which the property
is located; and (2) the person or persons or entity or entities who assert that
they are the holder of the security deed or note with the right to enforce the
obligation secured by the deed or mortgage can directly trace their interest
through the duly recorded assignments to the original grantee or
mortgagee.
(i)
If all assignments of the security deed or mortgage have not been duly recorded
with the land records in the Superior Court of the county in which the property
is located, the trustee, or any substitute trustee, may not proceed with the
sale of the property conveyed to him by the security deed or mortgage until: (1)
the recordation of any assignments necessary to trace the interest of the person
who asserts that he is the holder of the obligation secured by the security deed
or mortgage to the original grantee or mortgagee or, if an intervening
assignment cannot be recorded because the assignee no longer exists, the
provision of an affidavit by the party secured to the trustee, or any substitute
trustee, attesting under penalty of perjury that the person is the party secured
under the deed of trust, and (2) the payment of all fees, taxes, and other costs
applicable to the recording of the assignments. The person who asserts that he
is the holder of the obligation secured by the security deed or mortgage is
solely responsible for paying all such fees, taxes, and other
costs.
(j)
Failure to comply with subsections (a), (d), (e), (h), and (i) of this Code
section is a defense to any foreclosure or grounds to set aside any foreclosure
of any deed to secure debt.
(k)
Any creditor who fails to comply with any requirement imposed under this Code
section with respect to any person is liable to such person in an amount equal
to the sum of:
(1)
Any actual damage sustained by such person as a result of the
failure;
(2)
In the case of an individual action twice the amount of any finance charge in
connection with the transaction; and
(3)
In the case of an individual action relating to a credit transaction that is
secured by real property or a dwelling, not less than $1,000.00 or greater than
$2,000.00 and the costs of the action, together with a reasonable attorney's fee
as determined by the
court."
SECTION
3.
Said
title is further amended by inserting a new Article 6A of Chapter 14 to read as
follows:
"Article
6A
44-14-150.
(a)(1)
As used in this article the term:
(A)
'Mortgagor' means a borrower of a mortgage loan.
(B)
'Residential property' means real property located in the State of Georgia
having thereon a dwelling house with accommodations for four or less separate
households and occupied, in whole or in part, by the mortgagor; provided that
the residential property shall be limited to the mortgagor's principal place of
residence not to include investment property or property taken in whole or in
part as collateral for a commercial loan.
(2)
This Code section shall apply only to residential property.
(b)
Notwithstanding any other law to the contrary, a mortgagee or lender shall
neither forward a Right to Cure notice nor initiate foreclosure proceedings
until such time as the mortgagor is 120 days late on mortgage payments, subject
however to subsection (c) of this Code section.
(c)
Prior to the initiation of proceedings any mortgagor shall have a 45-day Right
To Cure a default of a required payment as provided in such residential mortgage
or security deed or deed secured by such residential property by payment in full
of all amounts that are due without acceleration of the maturity of the unpaid
balance of such mortgage. The mortgagee or lender shall, at least 45 days prior
to the initiation of foreclosure proceedings, give written notice of the Right
to Cure by certified mail or statutory overnight delivery to the mortgagor. The
Right to Cure shall be used only once every seven years regardless as to how
many mortgagors are listed on the mortgage.
(d)
No person or entity, shall accelerate the maturity of the unpaid balance of a
residential mortgage or otherwise enforce any monetary provision of the mortgage
note because of the failure to make any payment by any method authorized by any
law until at the end of the expiration of the 45-day Right to Cure
period.
(e)
The notice of Right to Cure shall provide the mortgagor with the following
information:
(1)
A statement informing the mortgagor that the mortgagor has the right to cure the
default by paying the sum of money required to cure the default;
(2)
The name, address, and telephone number of a person to whom the payment shall be
made;
(3)
A statement that failure to cure the default shall result in increased costs as
the result of the initiation of a foreclosure proceeding and that these costs
shall include but are not limited to attorney fees, advertising costs, and other
expenses; and
(4)
The name, address, and telephone number of the person whom the mortgagor can
directly contact should the mortgagor disagree with the amount required to cure
the default.
(f)
Notice of the initiation of proceedings to exercise a power of sale in a
mortgage, security deed, or other lien contract shall be given to the mortgagor
by the secured creditor after the expiration of the period granted the mortgagor
under subsections (b) through (d) of this Code section. At the expiration of
the Right to Cure period, the mortgagee or lender or mortgage servicer shall
provide written notice to the present owner of the property to be sold of the
intent of the secured party to foreclose upon the property. The notice shall
contain the name, address, and telephone number of the party secured, the
trustee, and any employee or department of the mortgage servicer, the party
secured, or any agent of the party secured that can be contacted for inquiries
regarding alternatives to foreclosure, including loan modifications. The notice
shall include the name and license number of the Georgia mortgage lender and
mortgage originator if applicable. The notice of intent to foreclose shall be
either:
(1)
Sent by: statutory overnight delivery or by certified mail, postage prepaid,
return receipt requested, bearing a postmark from the United States Postal
Service, and by first-class mail; or
(2)
Served personally upon the mortgagor or grantor by a sheriff or deputy sheriff
of the county where the mortgagor or grantor is domiciled or at the present
owner's last known address as such owner and address appear in the records of
the party secured.
A
copy of the notice of sale to be submitted to the publisher of the legal organ
in the county where the property is located for publication shall be tacked to
the property.
(g)
The notice of intent to foreclose shall contain the following: (1) the amount
required to cure the default and reinstate the loan, including all past due
payments, penalties, and fees; (2) a statement recommending that the mortgagor
or grantor seek housing counseling services; (3) the telephone number and the
Internet address of nonprofit and government resources available to assist
mortgagors and grantors facing foreclosure, as identified by United States
Department of Housing and Urban Development; (4) an explanation of the Georgia
foreclosure process and time line, as prescribed by the Georgia Department of
Banking and Finance; and (5) a loss mitigation application.
(h)
The notice of intent to foreclose shall also include:
(1)
Instructions for completing the loss mitigation application, a telephone number
to call to confirm receipt of the application, and a description of the
eligibility requirements for the loss mitigation programs offered by the secured
party that may be applicable to the loan secured by the mortgage or security
deed that is the subject of the foreclosure action;
(2)
An envelope preprinted with the address of the person responsible for conducting
loss mitigation analysis on behalf of the secured party for the loan secured by
the mortgage or security deed that is the subject of the foreclosure action;
and
(3)
An affidavit stating or a statement under oath stating: (1) The date on which
the default occurred and the nature of the default; and (B) if applicable, that
a notice of intent to foreclose was sent to the mortgagor or grantor in
accordance with this Code section and the date on which the notice was
sent.
(i)
The notice of intent to foreclose shall be accompanied by: (A) the original or a
certified copy of the mortgage or security deed; (2) a statement of the debt
remaining due and payable supported by an affidavit of the secured party or the
agent or attorney of the secured party; (3) a copy of the debt instrument
accompanied by an affidavit certifying ownership of the debt instrument; (4) if
applicable, the original or a certified copy of the assignment of the mortgage
for purposes of foreclosure or the deed of appointment of a substitute trustee;
and (5) any parties identified pursuant to paragraph (4) of this subsection that
received any assistance pursuant to Title I of the Emergency Economic
Stabilization Act of 2008 (12 U.S.C. 5211 et seq.) and the amount of any such
assistance received.
(j)
The notice of intent to foreclose shall be accompanied by a statement of
findings as to whether the covered residential mortgage was made and serviced in
compliance with the terms of, and regulations under, the following laws: (1) the
Truth in Lending Act (15 U.S.C. 1601) and Regulation Z of the Board of Governors
of the Federal Reserve System under such Act; (2) the Equal Credit Opportunity
Act (15 U.S.C. 1691 et seq.) and Regulation B of the Board of Governors of the
Federal Reserve System under such Act; (3) the Fair Debt Collection Practices
Act (15 U.S.C. 1692 et seq.); (4) The Real Estate Settlement Procedures Act of
1974 (12 U.S.C. 2601 et seq.) and Regulation X of the Secretary of Housing and
Urban Development under such Act; and (5) a statement the mortgagor has engaged
in a good faith effort to avoid foreclosure by providing a reasonable
alternative to foreclosure.
(k)
The notice of intent to foreclose shall include a statement to the mortgagor
that:
(1)
The mortgagor has the right to cure the default by paying all past due payments,
penalties, and fees and reinstate the loan at any time up to one business day
before the foreclosure sale occurs; and
(2)
The secured party or an authorized agent of the secured party shall, on request,
provide to the mortgagor or grantor or the mortgagor's or grantor's attorney
within a reasonable time the amount necessary to cure the default and reinstate
the loan and instructions for delivering the payment.
(l)
The notice of intent to foreclose shall include the name, address, and local or
toll free telephone number of a person to whom the payment or tender referred to
in subsection (k) of this Code section shall be made and the acceptable manner
of tender.
(m)
Failure to comply with any provision of subsections (a) through (l) of this
Code section is a defense to foreclosure.
(n)
If a mortgage is refinanced as a result of procedures under subsections (a)
through (l) of this Code section and the mortgagor fails to make the first
payment on the new mortgage loan or fails to make the first three consecutive
payments of the new mortgage loan, the mortgagee does not have to again comply
with subsections (a) through (l) of this Code section and can immediately
proceed to foreclose said property.
(q)
Notwithstanding any other provision in this Code section, nothing contained in
this Code section shall preclude a court from granting equitable
relief."
SECTION
4.
Said
title is further amended by revising Code Section 44-14-161, relating to
deficiency judgments after sales under power, as follows:
"44-14-161.
(a)
When any real estate is sold on foreclosure, without legal process, and under
powers contained in security deeds, mortgages, or other lien contracts and at
the sale the real estate does not bring the amount of the debt secured by the
deed, mortgage, or contract, no action may be taken to obtain a deficiency
judgment
unless the
person instituting the foreclosure proceedings shall, within 30 days after the
sale, report the sale to the judge of the superior court of the county in which
the land is located for confirmation and approval and shall obtain an order of
confirmation and approval
thereon.
(b)
A lender or secured creditor who has conducted a judicial foreclosure on real
property has the right to seek a deficiency judgment only if the sale of the
real property did not bring the amount of the debt secured by the
deed.
(b)
The court shall require evidence to show the true market value of the property
sold under the powers and shall not confirm the sale unless it is satisfied that
the property so sold brought its true market value on such foreclosure
sale.
(c)
The court shall direct that a notice of the hearing shall be given to the debtor
at least five days prior thereto; and at the hearing the court shall also pass
upon the legality of the notice, advertisement, and regularity of the sale. The
court may order a resale of the property for good cause
shown."
SECTION
5.
Said
title is further amended by revising Code Section 44-14-162.2, relating to
notice of foreclosure to the debtor, as follows:
44-14-162.2.
(a)
Notice of
the initiation of proceedings to exercise a power of sale in a mortgage,
security deed, or other lien contract shall be given to the debtor by the
secured creditor no later than 30 days before the date of the proposed
foreclosure. Such notice shall be in writing, shall include the name, address,
and telephone number of the individual or entity who shall have full authority
to negotiate, amend, and modify all terms of the mortgage with the debtor, and
shall be sent by registered or certified mail or statutory overnight delivery,
return receipt requested, to the property address or to such other address as
the debtor may designate by written notice to the secured creditor. The notice
required by this Code section shall be deemed given on the official postmark day
or day on which it is received for delivery by a commercial delivery firm.
Nothing in this subsection shall be construed to require a secured creditor to
negotiate, amend, or modify the terms of a mortgage
instrument.
Where a notice
of Right to Cure is required under Code Section 44-14-159, the notice shall be
delivered to the mortgagor by the following means: (1) sent by certified mail
return receipt requested bearing a postmark from the United State Postal Service
and also by first-class mail or statutory overnight delivery; or (2) served
personally when delivered by hand upon the mortgagor or grantor by a sheriff or
deputy sheriff of the county where the mortgagor domiciled or the present
owner's last known address as such owner and address appear in the records of
the party secured and tacked to the property.
(b)
The notice
required by subsection (a) of this Code section shall be given by mailing or
delivering to the debtor a copy of the notice of sale to be submitted to the
publisher.
Notice of the
initiation of proceedings to exercise a power of sale in a mortgage, security
deed, or other lien contract shall be given to the debtor by the secured
creditor no later than 30 days before the date of the proposed foreclosure. The
notice of initiation of proceeding to exercise a power of sale shall be
delivered to the mortgagor by the following means: (1) sent by certified mail
return receipt requested bearing a postmark from the United States Postal
Service and also by first-class mail or statutory overnight delivery; or (2)
served personally when delivered by hand upon the mortgagor or grantor by a
sheriff or deputy sheriff of the county where the mortgagor domiciled or the
present owner's last known address as such owner and address appear in the
records of the party secured and tacked to the property. The notice required by
this subsection shall be deemed delivered to the mortgagor when delivered to the
mortgagor or when mailed to the mortgagor at the mortgagor's last known address
to the mortgagee or to anyone holding thereunder. The notice shall include a
copy of the notice of sale to be submitted to the publisher of the legal organ
in the county where the property is located for publication and other materials
as required under Code Section 44-14-159 in the case of residential
property.
(c)
Notice sent pursuant to subsections (a) and (b) of this Code section shall
provide the mortgagor with the following information: (1) a statement informing
the mortgagor that the mortgagor has the right to cure the default by paying the
sum of money required to cure the default; (2) the name, address, and telephone
number of a person to whom the payment shall be made; (3) a statement that
failure to cure the default shall result in increased costs as the result of the
initiation of a foreclosure proceeding and that these cost shall include but are
not limited to attorney fees, advertising costs, and other expenses; and (4) the
name, address, and telephone number of the person whom the mortgagor can
directly contact if the mortgagor disagrees with the amount required to cure the
default.
(d)
Failure to comply with any provision of this Code section is a defense to
foreclosure."
SECTION
6.
Said
title is further amended by revising Code Section 44-14-324, relating to
assignments of liens, as follows:
"44-14-324.
(a)
Except as otherwise provided by law, assignments of all liens shall be in
writing. Under an assignment, the assignee shall have all the rights of the
assignor as provided by law.
(b)
On and after July 1, 2011, if a deed to secure debt or mortgage has been
assigned by the original grantee or mortgagee, the trustee, or any substitute
trustee, under any deed to secure debt or mortgage, shall not proceed with any
sale of the property unless: (1) all assignments of the mortgage have been duly
recorded with the land records in the Superior Court of the county in which the
property is located; and (2) the person or persons or entity or entities who
assert that they are the holder of the obligation secured by the deed or
mortgage can directly trace their interest through the duly recorded assignments
certified by the clerk of superior court to the original grantee or
mortgagee.
(c)
If all assignments of the deed of trust or mortgage have not been duly recorded
with the land records in the Superior Court of the county in which the property
is located, the trustee, or any substitute trustee, may proceed with the sale of
the property conveyed to him by the deed of trust or mortgage upon: (1) the
recordation of any assignments necessary to trace the interest of the person who
asserts that he is the holder of the obligation secured by the deed of trust or
mortgage to the original grantee or mortgagee or, if an intervening assignment
cannot be recorded because the assignee no longer exists, the provision of an
affidavit by the party secured to the trustee, or any substitute trustee,
attesting under penalty of perjury that the person is the party secured under
the deed of trust, and (2) the payment of all fees, taxes, and other costs
applicable to the recording of the assignments. The person who asserts that he
is the holder of the obligation secured by the deed of trust or mortgage is
solely responsible for paying all fees, taxes, and other costs
required.
(d)
A nominee of a grantee, mortgagee, or beneficiary for a security deed or
mortgage has no authority to request that the trustee, or any substitute
trustee, proceed with any sale of the property and the trustee, or any
substitute trustee, shall not proceed with any such sale upon the request of the
nominee. As used in this subsection, the term 'nominee' means a person who is
designated in the security deed or mortgage or who is subsequently designated to
act on behalf of the grantee, mortgagee, or beneficiary. The term 'nominee'
does not include an agent or other fiduciary.
(e)
All rights that are reserved to the lender in the security deed or mortgage for
the right to appoint a successor trustee or trustees are reserved to the holder
of the note and not to a nominee. A nominee that has no pecuniary interest in
the note and cannot prove value received for the note may not act on behalf of
or foreclose on any
mortgage."
SECTION
7.
Said
title is further amended by adding a new Chapter 17 to read as
follows:
"CHAPTER
17
44-17-1
This
chapter shall be known and may be cited as the 'Secure Reverse Mortgage
Act.'
44-17-2
As
used in this chapter the term 'mortgagor' means an applicant for a reverse
mortgage who: (1) has a gross income of less than 50 percent of the area median
income, as periodically determined by the United States Department of Housing
and Urban Development; (2) is over 62 years of age; (3) possesses assets,
excluding a primary residence, valued at less than $120,000.00; and (4) is not
an agent, trustee, personal representative, attorney-in-fact, guardian, or
conservator signing on behalf of the mortgagor unless approved by Order of a
Court of competent jurisdiction.
44-17-3.
No
mortgagee shall make a reverse mortgage loan pursuant to this chapter to a
mortgagor unless: (1) the actual mortgagor has signed in writing for the reverse
mortgage; and (2) at or before the date of closing of any reverse mortgage loan
the mortgagee has received from an independent organization a certificate in
writing verifying that the mortgagor has received counseling in-person
concerning the ramifications and consequences of receiving a reverse mortgage.
The independent organization providing counseling cannot be affiliated with a
lender, mortgage banker, servicer, or mortgage broker who offers a reverse
mortgage product. All such independent counselors must be licensed mortgage
loan originators in Georgia and shall be approved by the Georgia Department of
Banking for purposes of such counseling.
44-17-4.
A
reverse mortgage loan closed and otherwise consummated with a borrower who has
not received required counseling by an independent party approved by the
Department of Banking and Finance shall be unenforceable.
44-17-5.
The
Department of Banking and Finance shall adopt regulations to administer and
implement this chapter."
SECTION
8.
Said
title is further amended by adding a new Chapter 18 to read as
follows:
"CHAPTER
18
44-18-1.
This
chapter shall be known and may be cited as the 'Foreclosure Fraud Civil Action
Act.'
44-18-2.
As
used in this chapter, the term:
(1)
'Residential property' means a one-to-four unit residential family dwelling
owned and occupied in whole or in part by the mortgagor and located within the
State of Georgia.
(2)
'Person' means a natural person, corporation, partnership, limited liability
company, limited partnership, trust, real estate trust, or any other
entity.
44-18-3.
(a)
Any person who: (1) knowingly makes, uses, or causes to be made or used a
false, misleading, or fraudulent record, document, or statement or causes such a
record, document, or statement to be recorded in the real property records of
this state; or (2) knowingly swears or affirms falsely to any matter in support
of any foreclosure upon a residential property under this chapter shall be
liable for a civil penalty of $5,000.00 for each violation.
(b)
Any attorney for the county or city in which an alleged violation of this Code
section occurred may bring an action to recover the civil penalty which shall be
paid into the local treasury. A person violating this Code section shall be
liable for reasonable attorney fees and costs of a civil action brought to
recover any such penalty.
(c)
The owner of the residential property subject to foreclosure has a civil cause
action against a person who has violated this Code section and shall be entitled
to recover from such person compensatory damages in the amount of three times
the damages incurred by the owner as a result of the violation in addition to
reasonable attorney fees and costs for said
action."
SECTION
9.
Said
chapter is further amended by adding a new Chapter 19 to read as
follows:
"CHAPTER
19
44-19-1.
This
chapter shall be known and may be cited as the 'Mortgage Modification Safe
Harbor Act.'
44-19-2.
As
used in this chapter, the term:
(1)
'Loan modification' means a permanent change in one or more of the terms of a
mortgagor's loan. Changes to a mortgage modification include but are not limited
to extending the term of the loan, changing the monthly payments, and changing
the interest rate.
(2)
'Mortgage modification' means a process whereby the terms of a mortgage are
modified outside the original terms of the contract agreed to by the lender and
borrower.
(3)
'Trial modification' means a temporary modification to a mortgagor's loan
extended by the lender or secured party.
(4)
'Permanent modification' means a permanent modification to a mortgagor's loan
extended by the lender or secured party.
44-19-3.
(a)
Any creditor, servicer, secured party, or other entity who evaluates or has the
authority to extend a mortgage modification shall:
(1)
Provide in writing to the mortgagor clear and concise information as to how a
mortgagor can obtain a loan modification and avoid foreclosure;
(2)
Provide written confirmation of the borrower's submission of the first document
in support of a request for a modification within ten business days of receipt.
The confirmation will include basic information about the loan modification
process and include a clear date stamp identifying receipt of the
documents;
(3)
Identify a single point of contact who will be responsible for processing a
borrower's request for a modification and will be the consumer's consistent and
primary point of contact; and
(4)
Provide written notice of any required documents that are missing from the
borrower's initial written submission within 30 days of receiving the
submission. The notice will list all the specific documents that are missing
and describe any deficiencies in the documents included in the borrower's
initial submission. Additional documents that may be necessary will be
requested in writing within ten days of identifying the need for the
documents.
(b)
Any and all decisions concerning the mortgagor's complete modification requests
shall be reviewed and a decision on the mortgagors initial request for a
modification within 60 days following the borrower's initial
request.
(c)
During any mortgage modification the lender or secured party creditor shall not
report any derogatory credit ratings to any credit reporting
agency.
(d)
The mortgagee shall neither commence nor continue a foreclosure during active
loan modification negotiations.
(e)
The creditor, servicer, secured party, or other entity who extends a mortgage
modification shall appoint a dedicated relationship manager for each mortgagor
seeking modification.
(f)
All mortgage modifications shall be in writing and filed in the real property
records of the county where the real property subject to the modification is
located.
(g)
As long as the mortgagor is in compliance with the terms, covenants, and
agreements embodied in the loan modification, there shall no initiation of the
foreclosure process.
(h)
The failure of any lender or secured party creditor to place the terms of a
trial modification in writing shall result in the trial modification converting
to a permanent modification of the loan terms.
(i)
All loan modifications shall be sent by certified mail and first class mail to
the mortgagor within 15 days of entering into an agreement.
40-19-4
(a)
Should any mortgagee or secured party creditor fail to extend to a mortgagor a
mortgage modification, the mortgagee shall deliver to the mortgagor a notice of
denial by the following means: (i) sent by certified mail return receipt
requested bearing a postmark from the United States Postal Service and by
first-class mail; or (2) served personally upon the mortgagor or grantor by a
sheriff or deputy sheriff of the county where the mortgagor domiciled or the
present owner's last known address as such owner and address appear in the
records of the party secured and tacked to the property.
(b)
If the mortgagee or secured party creditor fails to extend to a mortgagor a
modification, the mortgagee shall review the modification request and allow the
mortgagor 30 days to raise disputed facts.
(c)
The notice of denial shall provide the mortgagor with the following
information:
(1)
An affidavit indicating that:
(A)
The creditor has made a good faith effort to negotiate and agree upon a
commercially reasonable alternative to foreclosure;
(B)
The creditor has considered an assessment of borrower's current circumstances
including, without limitation, income, debts, and obligations; and
(C)
The creditor has calculated the net present value of receiving payments pursuant
to a modified mortgage loan as compared to the net recovery following
foreclosure using the equations currently utilized and approved by the Federal
Deposit Insurance Corporation or the United States Department of Treasury;
and
(2)
A copy of the all numerical values and valuations utilized in reaching the
outcome.
(d)
For purposes of this Code section, the determination as to whether a creditor
has made a good faith effort to negotiate and agree upon a commercially
reasonable alternative to foreclosure shall be determined by whether the
creditor has considered factors including but not limited to: (1) an assessment
of the mortgagor's current circumstances, including but not limited to the
mortgagor's current income, debts, and obligations; (2) the value of receiving
payments pursuant to a modified mortgage loan as compared to the anticipated net
recovery following foreclosure; and (3) the interests of the creditor in the
event the creditor has received federal or state money.
(e)
The notice to the mortgagor shall provide the mortgagor with the following
options:
(1)
The mortgagor has the right to sell the property prior to the foreclosure sale
and use the proceeds to pay off the loan;
(2)
The mortgagor has the right to redeem the property by paying the total arrears
due, prior to the foreclosure sale; and
(3)
The mortgagor may have the following additional rights, depending on the terms
of the residential mortgage:
(A)
To transfer the property to a third party subject to the security interest held
by the residential mortgage lender and the transferee's right, if any, to cure
the default; and
(B)
To refinance the obligation by obtaining a loan which would fully repay the
residential mortgage creditor; and
(C)
To voluntarily grant a deed to the residential mortgage lender in lieu of
foreclosure."
SECTION
10.
All
laws and parts of laws in conflict with this Act are repealed.