20 Jun Texas, Nevada, and North Carolina Legislative and New York Regulatory Update
The Texas legislature recently enacted legislation governing expedited foreclosure proceedings related to the foreclosure home equity liens, effective June 14, 2013. The Nevada legislature recently enacted legislation, effective June 10, 2013, governing obligations of mortgage servicers. The North Carolina legislature recently amended its laws governing attorney’s fees paid to trustees, effective June 12, 2013. New York extended Emergency Rules.
TEXAS HOUSE BILL 2978
For a power of sale exercised by the filing of an application for an expedited court order allowing the foreclosure of a home equity lien, service of citation must be completed in accordance with the rule of civil procedure for procedures related to foreclosures of certain liens or the rule of procedure for citation in district or county courts.
Following the filing of a response to an application for an expedited foreclosure proceeding, a court may, in the court’s discretion, conduct a hearing to determine whether to order mediation. A court may not order mediation without conducting a hearing. The lender or borrower may request a hearing to determine whether mediation is necessary or whether an application is defective. A hearing may not be conducted before the expiration of the borrower’s deadline to file a response. A hearing may be conducted by telephone.
Not later than the 10th day before the date of a hearing, the court will send notice of the hearing to the parties concerning whether the hearing will be conducted by telephone and, if applicable, instructions for contacting the court and attending by telephone.
At a hearing, the court must consider objections to the referral of the case to mediation. If the court orders the case to mediation, the mediation must be conducted before the expiration of any procedural deadline.
If the parties to a case that has been ordered to mediation are unable to agree on the appointment of a mediator, the court may appoint a mediator. If a mediator is appointed by the court, the court will provide all parties with the name of the chosen mediator at the mediation hearing if the parties are unable to agree to a mediator at the hearing. A mediator’s fee will be divided equally between the parties.
The parties may agree to waive the mediation process.
The court may not conduct a hearing if the applicant has served the citation in compliance with Texas procedural rules, and a response to the application has not been filed before the applicable procedural deadline.
If a borrower fails to attend a mediation hearing after receiving notice from the court, the court:
- May not order mediation; and
- Must grant or deny the lender’s motion for default.
If a borrower attends a hearing and mediation is ordered, any mediation must take place not later than the 29th day after the lender filed a motion for default order.
Not later than March 1, 2014, the Texas Supreme Court will promulgate the following forms for use in expedited foreclosure proceedings related to the foreclosure of home equity liens:
- A form for application for an expedited foreclosure proceeding;
- A form for a supporting affidavit; and
- A form for any court-required citation.
NEVADA SENATE BILL 389
“Banking or financial institution” means any bank, savings and loan association, savings bank, thrift company, credit union, or other financial institution that is licensed, registered, or otherwise authorized to do business in Nevada.
A borrower may submit a written request to the servicer of the mortgage/deed of trust for a certified copy of the note, the mortgage/deed of trust, and all assignments of the note and mortgage/deed of trust if:
· The real property subject to the mortgage/deed of trust is a single-family dwelling;
· The borrower is the owner of record of the real property;
· The borrower currently occupies the real property as his or her principal residence; and
· The servicer or lender is a banking or financial institution or any other business entity that is licensed, registered, or otherwise authorized to do business in Nevada.
Not more than 10 days after receipt of a written request, the servicer of the mortgage/deed of trust must provide to the borrower the identity, address, and any other contact information of the current owner or assignee of the note and mortgage/deed of trust.
If the servicer of the mortgage/deed of trust does not provide a certified copy of each document requested within 30 days after receipt of the request, or if the documents provided by the servicer indicate that the lender does not have a recorded interest in or lien on the real property which is subject to the mortgage/deed of trust:
- The borrower may report the servicer and the lender to the Division of Mortgage Lending or the Division of Financial Institutions of the Department of Business and Industry, whichever is appropriate; and
- The appropriate division may take whatever actions it deems necessary and proper, including, without limitation, enforcing any applicable laws or regulations or adopting any additional regulations.
NORTH CAROLINA HOUSE BILL 407
The clerk of the superior court of the county where the power of sale foreclosure proceeding was held has discretion to allow reasonable counsel fees to an attorney serving as a trustee (in addition to the compensation allowed to the attorney as a trustee) where the attorney, on behalf of the trustee, renders professional services as an attorney that are different from the services normally performed by a trustee and of a type which would reasonably justify the retention of legal counsel by a trustee who is not licensed to practice law. Counsel fees are presumed reasonable if such fees comply with North Carolina law governing such fees. However, the clerk of court is not prevented from deeming a higher fee reasonable.
NEW YORK EMERGENCY RULES PART 420 and SUPERVISORY PROCEDURES MB 107 AND MB 108 (effective May 23, 2013)
Our January 25, 2010, March 22, 2010, August 10, 2010, December 16, 2010, March 24, 2011, June 30, 2011, September 29, 2011, March 23, 2012, June 6, 2012, December 27, 2012, and April 1, 2013 Compliance Memorandums discussed Emergency Regulations issued by the Department of Financial Services (“DFS”) addressing mortgage loan originator licensing and application requirements. The DFS recently extended the Emergency Regulations through August 19, 2013.
NEW YORK EMERGENCY RULES PART 418 AND SUPERVISORY PROCEDURES MB 109 and 110 (effective June 9, 2013)
Our July 21, 2009, October 27, 2009, January 25, 2010, March 22, 2010, August 10, 2010, December 16, 2010, March 24, 2011, June 30, 2011, September 29, 2011, January 25, 2012, April 11, 2012, July 11, 2012, October 17, 2012, and April 1, 2013 Compliance Memorandums discussed Emergency Regulations issued by the DFS addressing mortgage loan originator licensing and application requirements and mortgage loan servicer registration and financial responsibility requirements. The DFS recently extended all of the Emergency Regulations through September 8, 2013.