Any Port(al) in a Storm (of Foreclosure): Refining Loss Mitigation Through Technology, 0916 SCBJ, SC Lawyer, September 2016, #38
Author | Hon. John E. Waites and Andrew A. Powell, J. |
Hon. John E. Waites and Andrew A. Powell, J.
Introduction
The Loss Mitigation/Mortgage Modification Mediation Program (LM/MM Program) was developed for certain cases in the U.S. Bankruptcy Court for the District of South Carolina to assist borrowers and mortgage creditors in resolving loan defaults through the facilitation of good-faith communication regarding loss mitigation and mortgage modifications. This article explores the origination, development and success of the LM/MM Program in the South Carolina Bankruptcy Court.
What is loss mitigation?
As a result of the 2008 mortgage crisis, loss mitigation became a part of the national policy as a means of addressing the significant increase in mortgage loan defaults.[1] Loss mitigation is the negotiations between a mortgage creditor and a borrower to avoid foreclosure after the borrower has missed mortgage payments. While there are several forms of loss mitigation,
For the majority of consumer mortgage loans, the servicer of the loan has an obligation to review the borrower for loss mitigation eligibility. The servicer is a separate company that serves as the mortgage creditor’s agent to collect on the loans, including collecting payments, bringing foreclosure actions and conducting loss mitigation reviews. Most new U.S. mortgage loans are either guaranteed or backed by Fannie Mae, Freddie Mac, the Federal Housing Administration or the Department of Veteran Affairs (GSE Loans)
Issues in loss mitigation
As the participation in loss mitigation negotiations increased, issues involving loss mitigation also rose. Traditionally, to commence a loss mitigation review, borrowers are required to provide several documents evidencing their current financial situation and hardship to the creditor.
While many borrowers successfully obtain loan modifications through this approach, it is not uncommon for issues to develop during the loss mitigation review. For example, loss mitigation reviews can be protracted if the initial documentation submitted is incorrect or incomplete and requires additional documentation to be submitted. Further, if a document is not reviewed in a timely fashion, the document can become “stale” and require further submissions, which also delays the process. As documentation is generally mailed, disputes can occur about whether the borrower in fact submitted the documents and whether the mortgage creditor received them.
Confusion can also be created by the servicer who conducts the loss mitigation review on behalf of the mortgage creditor. Many servicers are divided into different departments including separate foreclosure, bankruptcy and loss mitigation departments. These departments can be located in offices in different states, increasing the likelihood of miscommunication. This internal disconnect can cause mixed messages to be sent to the borrower regarding the status of loss mitigation.
It is also not uncommon for communication to break down because a party becomes nonresponsive or because of a...
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