The Oregon Legislature’s hurried enactment of Senate Bill 1552 results in the creation of a mandatory foreclosure mediation system in certain situations. For lenders who have, in the prior year, commenced more than 250 non-judicial foreclosures of residences (i.e., foreclosures by trustee’s advertisement and sale rather than through court proceedings), participation in the mediation process is mandatory, unless the borrower declines or otherwise fails to participate in the process.
Lenders who have not commenced more than 250 non-judicial foreclosures of residential trust deeds in the prior year do not have to participate in the mediation program, provided that they timely file an appropriate affidavit with the Attorney General’s office. Details of the program are being fleshed out and the state is seeking to educate mediators quickly. There are also provisions under which borrowers are required to consult with housing counselors approved by the United State Department of Housing and Urban Development prior to the mediation. There are costs of the mediation which are borne by the borrower and lender. It is not currently clear what the cost for a mediation will be or just how the costs are split.
The required mediation does not apply if the lender elects to proceed with a judicial foreclosure.
It appears that the required mediation will apply even if the borrower and lender have previously entered into a modification agreement, without the assistance of the legislatively mandated mediator, but the agreement is subsequently breached. Thus, if there has been a move by larger lenders, prior to this legislation, to pursue alternatives to completion of foreclosures, this legislation may actually discourage those lenders from continuing such efforts by forcing them into the legislatively mandated process. Of course, to the extent that lenders have refused to submit to mediation processes of any kind, this legislation will impose an obligation to mediate. Since a mediator cannot compel either side to do anything, the only absolute that can be anticipated is that it will cost more for lenders to go through the non-judicial foreclosure process.
The legislation requires that the lender’s representative at the mediation either have full settlement authority or be able to get that during the mediation session, bring the complete payment history for the loan, bring evidence to establish that the beneficiary owns the beneficial interest (this is a response to the MERS situation), and bring other documents. The Attorney General may identify other documents to be brought, as well. In addition, the Attorney General will create and distribute mediation guidelines.
Any lender who is required to mediate under the statute will also have to pay an additional $100 fee for the filing of the notice of default. Those $100 fees will end up with the Attorney General in a fund called the Foreclosure Avoidance Mediation Fund, which is used for paying the expenses of coordinating the mediation program and related expenses.
The legislation includes potential liability for the lender for failure to comply, in the amount of actual damages plus $500 for each failure to comply. The legislation is not simple. The regulations to come from the Attorney General should shed light on a number of issues but may add still more steps to the process.
If you are a lender planning to foreclose a residential loan non-judicially, you must become familiar with this legislation.