The Shriver Brief : Poverty Law Commentary & Insights : Sargent Shriver National Center on Poverty Law : Affordable Housing, Healthcare Reform

Thousands of homeowners will be getting relief soon if they took out a loan with Countrywide Financial before 2008. Charges against Countrywide, now a subsidiary of Bank of America, are part of the largest mortgage-servicing case ever to come before the Fair Trade Commission (FTC), and one of the largest overall judgments. The New York Times reported that Bank of America will pay $108 million to families who were charged inflated “cost of service” fees such as lawn mowing and property inspection.

Over the past few years, Countrywide has become the poster child for the predatory lending industry and has received much of the blame for the housing crisis. Reports of abuses include the inadequate underwriting of adjustable rate mortgages or ARMs, unhelpful customer service, abysmal record keeping, abusive origination fees, and making false and defaming claims against homeowners who filed for bankruptcy protection.

As part of the monetary settlement, the FTC is requiring Bank of America to establish internal procedures and to use an independent third party to verify that bills and claims filed in Countrywide’s ongoing bankruptcy proceedings are valid. Countrywide also faces a criminal investigation by the Federal Fraud Enforcement Task Force into the defamation charges against it.

Unfortunately, Countrywide is only one of many lenders accused of predatory lending and consumer abuses. Although the FTC has played an integral role in holding Countrywide accountable, these predatory practices still abound in the mortgage industry. We need strong laws that protect consumers; that is why the Shriver Center supports an independent consumer protection agency which will prevent these abuses from happening in the future.

For more information contact the Community Investment Unit at the Shriver Center.

This article was co-authored by Susan Ritacca.

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Bill seeks to ensure that Illinois homeowners benefit from federal Making Home Affordable Program

On April 29, 2010, the Chicago Tribune reported that the number foreclosures reaching completion in the Chicago area was higher in the first quarter of 2010 than in any other period during the past five years. This is according to Woodstock Institute data released the same day. 

While the worsening crisis in the Chicago region certainly highlights the shortcomings of federal foreclosure prevention programs like the Home Affordable Modification Program (HAMP), HAMP servicers have also been failing Illinois homeowners. Advocates report that homes are being lost to foreclosure even while homeowners are still trying to modify their loans under HAMP, in violation of the program. Indeed, the National Consumer Law Center and the National Association of Consumer Advocates reports that in a recent survey of over 100 consumer advocates, nearly 95% of the surveyed advocates have represented homeowners in cases where a servicer tried to proceed with a foreclosure sale without a completed review under HAMP. HAMP can hardly be successful if homeowners who apply to the program are losing their homes because the program is violated. Illinois homeowners deserve the opportunity to try and benefit from federal foreclosure prevention programs, even if they are not as effective as was hoped.

Recognizing the need to improve the effectiveness of the HAMP program, the Treasury Department issued new directive 10-02 on March 24, 2010, that, among other things, (a) clarifies that servicers must inform homeowners who meet basic criteria about the HAMP program, (b) prohibits referrals to foreclosure until either the homeowner has been evaluated and determined ineligible for HAMP or reasonable solicitation efforts have failed; and (c) requires that a servicer of a mortgage potentially subject to HAMP certify to the foreclosure attorney or trustee that the homeowner is not HAMP-eligible before a home can go to foreclosure sale. 

Although these new rules give foreclosure attorneys better guidance about when to file cases and proceed to sale, the directives still rely on the compliance of servicers. In order for the HAMP program to truly benefit homeowners, they must be able to stop foreclosure court proceedings when the HAMP program is violated before their homes are lost.

A proposed Illinois law may help. HB 5735, spearheaded by former Representative Deborah Graham, Representative Al Riley, and Senator Jacqueline Collins, makes clear that if a home goes to foreclosure sale in violation of the Making Home Affordable Program (of which HAMP is a major component), the homeowner can have the court set aside the sale, so that the owner can continue to work through the federal program. HB 5735 should be heading to Governor Quinn’s desk shortly. We implore Governor Quinn to sign the important protections of HB 5735 into law.

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As the foreclosure crisis has unfolded throughout the country, it has become evident that renters – not just homeowners - have been victims of this crisis. Indeed, the National Low-Income Housing Coalition reports that renters make up about 40% of the families facing the loss of their housing due to foreclosure and more than one in every five foreclosed properties is a rental property. 

Residents in foreclosed properties have been caught unaware that their home is being foreclosed and have scrambled with very little notice to find safe replacement housing. Rental properties in foreclosure fall into disrepair – even when there are still families living there.  Advocates throughout the country, grappling with the effect of the economic downturn, have called for increased protections for renters affected by foreclosure. Legislators have listened.

On May 20, 2009, President Obama signed into law the Protecting Tenants at Foreclosure Act of 2009, part of the Helping Families Save Their Homes Act of 2009 (Pub. L. 111-22). This law, which sunsets in 2012, ensures that renters in foreclosed properties receive at least 90 days notice before they have to move, and that tenants who start a lease term before the notice of foreclosure may continue to live in their homes until the lease expires.

In Illinois, Representative Will Burns and Senator Jacqueline Collins have championed a bill, HB 3863, which would provide much needed protections for Illinois renters living in foreclosed properties. Currently, Illinois renters are not entitled to notice when control or ownership of the property in which they live changes as a result of foreclosure. Consequently, they frequently do not know who owns the property, where to pay rent, or who to call if repairs are necessary. Among other protections, HB 3863 would provide renters with essential information regarding their homes. 

The basic provisions of HB 3863 include:

·         During the foreclosure case, if a receiver (or mortgagee in possession) is appointed to operate and manage the property while the foreclosure case is pending, the receiver must:

a)      Make a good faith effort to identify residents of the property; and

b)      Notify residents of his or her appointment, inform residents that the property is the subject of a foreclosure action, and provide contact information for resident concerns and repair requests.

c)       Post notices with contact information at the property.

·         After the foreclosure is complete, the lender/new owner must:

a)      Make a good faith effort to identify residents of the property; and

b)      Notify residents that the lender/new owner has acquired the property, inform residents that the property has been the subject of foreclosure, and provide contact information for resident concerns and repair requests.

c)       Post notices with contact information at the property.

·         Tenants evicted as a part of the foreclosure case are granted a minimum of 30 days to move after the eviction hearing.

HB 3863 has been sent to the Governor’s desk. We implore Governor Quinn to sign it to protect the hidden victims of the foreclosure crisis.

Call 217-782-0244to encourage Governor Quinn to sign HB 3863.

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Dedicated advocates around the country are working furiously on behalf of clients who face foreclosure. Surely some of these creative minds have figured out how to solve the foreclosure crisis—haven’t they? Well, no. Lenders and loan servicers continue to resist loan modification, despite new federal incentives contained in the Home Affordable Modification Program, and advocates continue to grapple with the foreclosure monster.  

But promising efforts are underway. Philadelphia’s mandatory foreclosure diversion program, often held up as a model, can force lenders to come to the table. Of course, as advocates there point out, the program’s success relies on multiple pieces being in place: organizers (from ACORN, Philadelphia Unemployment Project, and other organizations) making personal contact with homeowners facing foreclosure, the Philadelphia Legal Assistance hotline, housing counselors, and representation in the actual mediation. While no panacea, a report on the program’s first year credits it with averting 1,400 foreclosures.

In areas where property values hit the stratosphere a couple of years ago many borrowers, to keep their homes, need not just loan modification but also principal reduction. In Los Angeles’ San Fernando Valley, advocates from Neighborhood Legal Services and community organizers from One LA joined forces to help homeowners negotiate collectively with their loan servicers; One LA used the data gathered to get the city council involved. The result is a pilot project through which, if the lender agrees to reduced principal and a fixed interest rate, the city will fund a “silent second” mortgage to reduce payments even further; the second mortgage is payable only upon sale or refinancing of the property.

Both these approaches were highlighted in a June 23 Shriver Center webinar, and the Los Angeles effort is also the subject of an article in the May-June 2009 issue of Clearinghouse Review. What innovative approaches are underway in your community? We’d love to hear about them. Email marciahenry@povertylaw.org  

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