CFPB Post-Covid Mortgage Servicing Rules

By: Salvatore Carollo, Esquire

Following the expiration of the federal foreclosure moratorium on July 31, 2021, the Consumer Financial Protection Bureau (CFPB) finalized its post-Covid-19 mortgage servicing rules which took effect on August 31, 2021 and will remain in place until December 31, 2021.  Generally, the new temporary rules which have been referred to as “procedural safeguards” have been implemented to prevent a mortgage loan servicer from initiating a new foreclosure, or completing an existing foreclosure proceeding before January 1, 2022.  In addition, the temporary provisions apply to all “federally-related mortgage loans” (as defined under RESPA) that are secured by the borrower’s primary residence.  As a result, the new rules can also apply to portfolio loans, rather than just federally backed mortgage loans that were subject to the CARES Act.

The temporary rule changes require enhanced foreclosure protections through December 31, 2021.  Until then, servicers are not permitted to commence a new foreclosure due to missed payments unless one of three safeguards have been met: (1) the borrower has submitted a complete loss mitigation application; (2) the property securing the loan is deemed abandoned; and (3) the servicer has not received any communications from the borrower for at least 90 days prior to initiating the foreclosure.  The prior existing servicing rules generally prohibit a loan servicer from noticing or filing a foreclosure action until the borrower is more than 120 days delinquent.  The rule changes essentially prohibit initial notices or first filings for any type of foreclosure until after December 31, 2021 with certain limited exceptions.  The rule changes further permit servicers to offer additional streamlined loan modification options to borrowers with COVID-19 related hardships based on the submission of incomplete loss mitigation applications so long as certain criteria and modification terms are met.

The new rules have also amended prior early intervention requirements of the loan servicer and introduce “live contact” options for COVID-19 related hardships.  These early intervention protocols require servicers to discuss with certain delinquent borrowers specific COVID-19 related information at two specific times: First, at an initial live contact if the borrower is not yet in a forbearance program and the owner or the assignee of the loan offers a COVID-19 hardship forbearance program.  Second, at the last “live contact” prior to the end of the forbearance period if the borrower is in a COVID-19 related hardship forbearance program.  These rule changes make it abundantly clear that under the current administration, the CFPB is displaying a renewed focus on prioritizing consumer protection over industry concerns.  Accordingly, the financial servicing industry is expected to remain current with these ever-changing regulatory developments and ensure compliance with fair lending statutes through continuous comprehensive internal review of fair lending policies and procedures.

Ring Doorbells and Service of Process

By: Catherine Di Lorenzo, Esquire

October 1, 2021

You have to love technology. In some ways, it has enhanced our lives tremendously. However, in some ways, advancements in technology have proven to be problematic for process servers. Video home surveillance has been around for decades, but with the changes and improvements to technology, video surveillance can be integrated right into a homeowner’s doorbell and send the video right to the subscriber’s phone — even if they aren’t home.

Service of process is not an easy job. Many individuals do not understand why they are being served, the role of a process server, or the fact that being served is their constitutional right. For those who do not want to receive service of process, whether they want to try and sabotage the case by saying they were not properly served or if they are avoiding the situation entirely, video doorbells can be problematic because it gives the person who will be served a heads up. The advance notice eliminates the element of surprise that sometimes is necessary in getting a difficult defendant served. Whether the person decides to hide in the house and not answer the door or they evade service by leaving out a back door when the server arrives, video surveillance doorbells make process service more difficult, and especially so on tough serves.

Generally, Delaware allows service to be completed personally on the Defendant or through a substitute party who is over 18 and lives in the home.  In a foreclosure case service can also be effectuated by posting the complaint at the property address only after an attempt at personal service has been made.

Most video doorbells allow for communication between the process server and the person to be served. If the person verbally accepts service, you will not be able to prove that the individual accepting service is the Defendant or a resident of the home who is over 18. Unfortunately, video doorbells open up process servers to a number of liabilities with regard to effectuating proper service.  Attorneys risk their cases being dismissed if they rely on service in this manner.  While service can be completed in a foreclosure case by posting it will force lenders to incur even more costs related to the defaulted mortgage.

How video surveillance doorbells will continue to affect the civil process service industry, legislatively or otherwise, remains to be seen. While there may be some benefits to doorbells like Ring for homeowners, they certainly present some unique challenges for process servers, attorneys, and plaintiffs in general.

 

Updates Regarding New Jersey Eviction Moratoria and Procedures

By: Christopher Saliba, Esquire

On August 4, 2021, Governor Phil Murphy signed Bill Nos. S-3691 and A-4463 into law. S-3691 provides residential eviction prevention and utility assistance for renters who have been financially impacted by the COVID-19 pandemic by appropriating an additional $500 million for the COVID-19 Emergency Rental Assistance Program (CVERAP) and $250 million for utility assistance, which are programs administered by the New Jersey Department of Community Affairs (DCA). A-4463 provides an additional layer of protection for defaulted renters during the public health emergency by mandating that court records pertaining to their non-payment during this period be kept confidential.

The new legislation sets forth new eviction moratoria expirations for those who were unable to pay their rent during the period of March 1, 2020 through August 31, 2021, or, for certain tenants, through December 31, 2021. For residential tenants with household incomes below 120% Area Medium Income (AMI) but above 80%, the eviction moratorium concluded at the end of August. For certain households with incomes below 80% AMI, the moratorium concludes at the end of the year. In order for the special protections described above to take effect, the tenant must provide the required self-certification form to their landlords and/or to the court. As to evictions stemming from a residential foreclosure action, said moratorium is set to expire November 15, 2021.

While tenants who are covered by this special protection may not be evicted, the rent is still due to landlords and landlords may pursue this rent through a money judgment. Further, landlords who are receiving rental assistance must waive any late fees accrued by tenants during the special protections period and may not report delayed rent to crediting agencies. Lastly, landlords may not disclose non-payment of rent to others and prospective landlords may not deny renting to a person who wasn’t able to pay rent during the covered period of March 1, 2020 through August 31, 2021.

Pursuant to its July 1, 2021 Order, the New Jersey Supreme Court has authorized mandatory settlement conferences in all residential landlord tenant cases. This requirement took effect immediately and all vicinages will schedule settlement conferences for pending landlord tenant cases. The Order directs that priority will be given to the nearly 14,000 landlord tenant cases that have been pending for more than one year or in which more than 12 months of rent is claimed to be due.

Since the beginning of the pandemic, all landlord-tenant trials have been suspended, absent certain circumstances. The Judiciary now is gearing up to resume trials in residential landlord tenant cases, with evictions occurring in accordance with the newly enacted legislation described above.

Through the Court’s June 11, 2020, Omnibus Order, vicinages were authorized to schedule conferences in landlord tenant cases, including to conduct settlement negotiations in an effort to resolve cases without trial. However, voluntary participation has been sparce and as a result, the Court is now mandating settlement conferences to be scheduled. The Order provides that the conferences will primarily be conducted in a remote format, unless a Judge, in their discretion, schedules an in-person conference based on the individual circumstances of a case.

Both parties are required to appear at the settlement conference. The landlord is recommended to submit all required documents, such as a lease and registration statement (if applicable) five days before the settlement conference. If the landlord fails to appear, the case will be dismissed; and if the tenant fails to appear, default will be entered by the clerk.

If the landlord is prepared to proceed, the Court will hold a proof hearing; otherwise, a proof hearing will be held within 10 days of the settlement conference date. If the landlord establishes entitlement to relief at the proof hearing, the Court will enter default judgment, but the eviction cannot proceed until the end of the moratorium on residential evictions.

The goal of the settlement conferences is to have both parties appear, where the settlor will assist the parties in working out an agreement, which will be reduced to writing, placed on the record, and distributed to the parties. However, it is expected that not all matters will settle. For those where no settlement can be reached, the matter will be scheduled for trial. Trials were expected to begin September 1, 2021, but that date has been slightly pushed back due to the new legislation signed into law.

The Court’s authorization of mandatory settlement conferences does not affect commercial landlord tenant proceedings, which have resumed pursuant to the Court’s June 2, 2021, Order. Likewise, commercial foreclosure evictions are not bound by any moratoria and are allowed to proceed.

Federal National Mortgage Association v. Kathleen Halbert

By: Salvatore Carollo, Esquire

On April 9, 2021, the New Jersey Appellate Division issued an unpublished opinion in Federal National Mortgage Association v. Kathleen Halbert, 2021WL 1327160 which affirmed the trial court’s order granting a judgment of eviction in favor of plaintiff and remanded for the court to enter an amended judgment awarding defendant/tenant an additional sum for rent paid during a period of uninhabitability in 2018. The crux of defendant’s appeal involved her challenge with a part of the trial court order directing the plaintiff to pay her $9,000.00 for nine-months’ rent she paid prior to the eviction because the premises had been deemed uninhabitable since January of 2019.

The appellate court took particular note of the evidence presented at trial which in relevant part, established that defendant’s counsel identified fourteen “defective conditions” in a letter submitted to plaintiff’s counsel on December 1, 2016 that he asserted rendered the home uninhabitable. These conditions included damage to the property from pipes that burst due to cold weather, a leaking hot water heater, a septic tank that required cleaning in accordance with the “the town ordinance,” two of three bathrooms that did not function, and an inoperable oven, dishwasher, washer-dryer. Defendant’s correspondence requested remediation of the conditions, but plaintiff failed to take any action in response to the request. Defendant’s counsel submitted additional letter and email requests to plaintiff for remediation which continued to go ignored, including a January 9, 2018 email informing plaintiff’s counsel that the burst pipes caused the septic system to overflow causing sewage to flow into the first floor of the home.

Testimony from the township fire marshal and plaintiff’s own real estate broker demonstrated that the home was found to be “unsanitary for human occupancy, due to the septic backup,” and that plaintiff permitted the property to become unfit for human occupancy in January 2018 and likely prior to that date. Following a bench trial, the court found that the “home is simply uninhabitable,” and that it makes no sense for defendant to live on the second floor, and put water in the toilet so it flushes.” The court also found the home “beyond disgusting,” and determined the believable evidence” established the “property should be vacated due to mold remediation” and that “[t]here’s no question … the place has to be emptied.” As a result, the trial court granted plaintiff’s request for an order of eviction pursuant to N.J.S.A. 2A:18-61.1(g)(2), which permits removal of a tenant where the landlord “seeks to comply with local or State housing inspectors who have cited [the landlord] for substantial violations affecting the health and safety of tenants and it is unfeasible to so comply without removing the tenant. The court also concluded that, as a condition of defendant vacating the premises, plaintiff must reimburse defendant for the rent she paid ($9,000) for the nine-month period from January 2019 through the September 2019 trial. The court did not offer a reason for limiting the rental reimbursement to that period.

On appeal, the court considered the narrow issue raised by defendant that the trial court erred by limiting her recovery of rent paid to the nine-month period prior to trial. The tenant argued that she was entitled to a return of rent paid while the home was uninhabitable and that the court’s award was not supported by the evidence, which shows the property was uninhabitable for the twenty-one-month period commencing on January 8, 2018, when the pipes burst in the home. The appellate court found that the evidence overwhelmingly established that the deplorable conditions at the property rendered it uninhabitable in January 2018 and those conditions were never remediated by plaintiff. Further, the appellate court found no evidentiary support for the trial court’s unexplained decision to limit the return of rent to defendant to the nine-month period between January 2019 and the trial in September. Accordingly, the appellate court affirmed the trial court’s order directing that defendant vacate the property and requiring plaintiff to pay defendant $9,000 for the rent paid from January 2016 through September 2019 and remanded for the lower court to determine the amount of rent paid by defendant from January 2018 through December 2018 and for entry of an amended final judgment also awarding defendant the full amount of rent paid during that period.

Congratulations Steven K. Eisenberg, Esquire, MBA

Steven K. Eisenberg, Esquire, MBA

Chief Executive Officer and Founder of Stern & Eisenberg

At Stern & Eisenberg, we are always looking for ways to grow and enhance our ability to support all of our clients’ needs through our existing footprint. Part of our effort includes supporting our attorneys’ efforts to develop their abilities and knowledge in additional jurisdictions.

It is with great pleasure to announce that Steven K. Eisenberg has recently been sworn into the practice of law in the additional states of West Virginia and Maryland. He looks forward to working with the other Stern & Eisenberg attorneys licensed in those states. With the help of our Stern & Eisenberg attorneys, Steven soon will join the Federal Bars (District Courts and Bankruptcy Courts) in both states. Steven is also finalizing his admission to the New York State Bar.

The S&E family is dedicated to professional advocacy, creative solutions and legal services for our clients, partners, and community with determined integrity and intensity serving the State of Delaware, Pennsylvania, New Jersey, New York, Pennsylvania, West Virginia and (Maryland).

Steven K. Eisenberg, Chief Executive Office and Founder of Stern & Eisenberg has an extensive background in real estate and corporate matters including acquisition and sale of businesses and assets.  His practice also focuses on the representation of lenders and servicers in the enforcement and protection of their interests in the legal process, including foreclosure, bankruptcy, evictions, title claims, loan modifications, and litigation.  Having experience previously representing borrowers, Steven brings his unique perspective to the representation of his servicer, lender and business clients.  Steven is now licensed to practice law in New Jersey, Pennsylvania, West Virginia, Maryland, and the District of Columbia. He is Martindale-Hubbell AV rated.  

Congratulations Steven!