NMSRD Excerpts

Chapter 1

 

Summary section, Pre-Foreclosure Notices and Other Requirements

 

Foreclosure Synopsis 

 

Judicial Foreclosure

 

Mediation

 

Nonjudicial Foreclosure 

 

Pre-Foreclosure Notices & Other Requirements

 


 

Summary section, Pre-Foreclosure Notices and Other Requirements

 

PRE-FORECLOSURE NOTICES AND OTHER REQUIREMENTS

[The following is excerpted from THE NATIONAL MORTGAGE SERVICER’S REFERENCE DIRECTORY™, 30TH Ed. This sample is provided for general illustrative purposes only and should not be used for any other purpose.]

[This sample State’s] Code section XXXXX, which bars commencement of foreclosure until the servicer provides the trustor(s) on a deed of trust with a notice identifying a single point of contact (SPOC), providing contact information for the SPOC, setting forth the nature of the default (including an itemized total required to be paid to cure the default), stating a date by when the default must be cured to avoid foreclosure, and directing the trustor(s) to contact the SPOC regarding available foreclosure relief, was amended, effective XXXX, 2014. As amended, the statute requires that the SPOC notice allow the trustor at least 30 days in which to cure the default. As amended, it also provides an exemption from compliance with the requirements of the section for financial institutions which designate and use assigned personnel in compliance with 12 C.F.R. 1024, Real Estate Settlement Procedures Act, or other federal law …

 

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Foreclosure Synopsis

 

FORECLOSURE SYNOPSIS – Nonjudicial

[The following is excerpted from THE NATIONAL MORTGAGE SERVICER’S REFERENCE DIRECTORY™, 30TH Ed. This sample is provided for general illustrative purposes only and should not be used for any other purpose.]

In [this sample State], the overwhelming proportion of foreclosures is accomplished nonjudicially. Judicial foreclosures are pursued in the rare instance when a lender wishes to obtain a deficiency judgment. Section 2924 of the Civil Code and its lettered subsections set forth the various elements of the nonjudicial process.

Nonjudicial foreclosures can be accomplished in approximately 4 months. The basic steps are recording a notice of default, obtaining a trustee's sale guarantee, mailing of copies of the notice of default, publishing, posting, mailing and recording of a notice of trustee's sale, conducting of the trustee's sale, and the recording of a trustee's deed.

FORECLOSURE SYNOPSIS – Judicial

[The following is excerpted from THE NATIONAL MORTGAGE SERVICER’S REFERENCE DIRECTORY™, 30TH Ed. This sample is provided for general illustrative purposes only and should not be used for any other purpose.]

Filing the Complaint

[This sample State] requires that all parties having an interest in the property be named in the foreclosure complaint, including all junior lienholders.

Upon receipt of the referral, the loan documents and default information will be reviewed in conjunction with the title report to prepare the proposed complaint. The proposed complaint will be forwarded to the plaintiff or its servicer for confirmation of its accuracy.

After receipt of confirmation that the proposed complaint is accurate, counsel will execute the complaint as well as all required supporting certifications and file the complaint. In [this sample State], all foreclosure complaints and subsequent pleadings in an uncontested case are filed with the Clerk of the Superior Court located in [this sample State]. All final judgments are reviewed and approved or rejected by the Office of Foreclosure, also located in …

If a matter becomes contested, the file is forwarded to the court in the county where the property is located.

Service of Process and Entry of Default

Service of the complaint can be made by a private process server or the sheriff to either the defendant, a person over the age of 14 and a member of the defendant’s household, or to a person authorized to accept service where the defendant is not an individual (i.e., a corporation, business, or a governmental entity). If the private process server or sheriff cannot obtain personal service on a defendant, the foreclosing counsel must make a diligent attempt to …

 

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Judicial Foreclosure 

 

FORECLOSURE SYNOPSIS – Judicial

[The following is excerpted from THE NATIONAL MORTGAGE SERVICER’S REFERENCE DIRECTORY™, 30TH Ed. This sample is provided for general illustrative purposes only and should not be used for any other purpose.]

Filing the Complaint

[This sample State] requires that all parties having an interest in the property be named in the foreclosure complaint, including all junior lienholders.

Upon receipt of the referral, the loan documents and default information will be reviewed in conjunction with the title report to prepare the proposed complaint. The proposed complaint will be forwarded to the plaintiff or its servicer for confirmation of its accuracy.

After receipt of confirmation that the proposed complaint is accurate, counsel will execute the complaint as well as all required supporting certifications and file the complaint. In [this sample State], all foreclosure complaints and subsequent pleadings in an uncontested case are filed with the Clerk of the Superior Court located in [this sample State]. All final judgments are reviewed and approved or rejected by the Office of Foreclosure, also located in …

If a matter becomes contested, the file is forwarded to the court in the county where the property is located.

Service of Process and Entry of Default

Service of the complaint can be made by a private process server or the sheriff to either the defendant, a person over the age of 14 and a member of the defendant’s household, or to a person authorized to accept service where the defendant is not an individual (i.e., a corporation, business, or a governmental entity). If the private process server or sheriff cannot obtain personal service on a defendant, the foreclosing counsel must make a diligent attempt to …

 

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Mediation 

 

MEDIATION

[The following is excerpted from THE NATIONAL MORTGAGE SERVICER’S REFERENCE DIRECTORY™, 30TH Ed. This sample is provided for general illustrative purposes only and should not be used for any other purpose.]

Sample 1: In [this sample State], the rules of mediation applicable to all lawsuits also apply to actions filed in regard to foreclosures, including referral to mediation in proper cases. (The actions typically challenge the conformity of the pre-foreclosure and foreclosure activities of the servicer and trustee to the applicable statutes.) Although there are no specific guidelines that apply to foreclosure-related cases, as there might be in other jurisdictions, recently enacted statutes make it clear that servicers and holders would be well-advised to work with the borrowers.

Sample 2: Foreclosure diversion programs are in place in XX of [this sample State’s] XX counties: [specified] counties. The program requirements and procedures vary widely from one county to the next. Some of the programs are mandatory, meaning that any foreclosure filed where the property is owner-occupied is scheduled for a conciliation conference. Other counties require that the borrower opt-in to the program. Finally, some counties have no actual conciliation conferences. Rather, they have hotlines that the borrowers can call and obtain stays of foreclosure up to 90 days. In counties where there are conciliation conferences, they generally require a representative of the mortgage company with settlement authority to participate in the conference by telephone, while the mortgage company's attorney attends the conference in person, along with the borrower. In certain counties, such as […], the court may order the mortgage company's representative to personally appear. …

 

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Nonjudicial Foreclosure

 

FORECLOSURE SYNOPSIS – Nonjudicial

[The following is excerpted from THE NATIONAL MORTGAGE SERVICER’S REFERENCE DIRECTORY™, 30TH Ed. This sample is provided for general illustrative purposes only and should not be used for any other purpose.]

In [this sample State], the overwhelming proportion of foreclosures is accomplished nonjudicially. Judicial foreclosures are pursued in the rare instance when a lender wishes to obtain a deficiency judgment. Section 2924 of the Civil Code and its lettered subsections set forth the various elements of the nonjudicial process.

Nonjudicial foreclosures can be accomplished in approximately 4 months. The basic steps are recording a notice of default, obtaining a trustee's sale guarantee, mailing of copies of the notice of default, publishing, posting, mailing and recording of a notice of trustee's sale, conducting of the trustee's sale, and the recording of a trustee's deed.

 

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Pre-Foreclosure Notices & Other Requirements

 

PRE-FORECLOSURE NOTICES AND OTHER REQUIREMENTS

[The following is excerpted from THE NATIONAL MORTGAGE SERVICER’S REFERENCE DIRECTORY™, 30TH Ed. This sample is provided for general illustrative purposes only and should not be used for any other purpose.]

[This sample State’s] Code section XXXXX, which bars commencement of foreclosure until the servicer provides the trustor(s) on a deed of trust with a notice identifying a single point of contact (SPOC), providing contact information for the SPOC, setting forth the nature of the default (including an itemized total required to be paid to cure the default), stating a date by when the default must be cured to avoid foreclosure, and directing the trustor(s) to contact the SPOC regarding available foreclosure relief, was amended, effective XXXX, 2014. As amended, the statute requires that the SPOC notice allow the trustor at least 30 days in which to cure the default. As amended, it also provides an exemption from compliance with the requirements of the section for financial institutions which designate and use assigned personnel in compliance with 12 C.F.R. 1024, Real Estate Settlement Procedures Act, or other federal law …

 

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