[HISTORY: Adopted by the City Council of the City of Springfield
as indicated in article histories. Amendments noted where applicable.]
[Adopted 11-22-2011 (Title 7, Ch. 7.60, of the 1986 Code)]
Unsecured and unmaintained vacant properties and foreclosing
properties present a danger to the safety and welfare of public safety
officers, the public, occupants, abutters and neighborhoods and, as
such, constitute a public nuisance. This article is enacted to promote
the health, safety and welfare of the public, to protect and preserve
the quiet enjoyment of occupants, abutters and neighborhoods, and
to minimize hazards to public safety personnel inspecting or entering
such properties.
For the purposes of this article, the following words shall,
unless the context clearly requires otherwise, have the following
meanings:
A person or entity that holds or controls, partially, wholly,
indirectly, directly, or in a nominee capacity, a mortgage loan securing
a residential property, including, without limitation, a mortgagee,
an originator, holder, investor, assignee, successor, trust, trustee,
nominee holder, mortgage electronic registration system or mortgage
servicer, including the Federal National Mortgage Association or the
Federal Home Loan Mortgage Corporation. "Creditor" shall also include
any servant, employee or agent of a creditor.
An effort by each party upon being present or taking part
in the mediation conference as required and defined by this article
in an effort to negotiate and agree upon a commercially reasonable
alternative to foreclosure as described in MGL c. 244, § 35A(c).
An individual mortgagor, his or her assignee, successor,
or a trust or trustee who owns and resides in residential real property
located in the City, and for whom such residential real property is
his/her principal residence.
The formal discussion and negotiation undertaken by the parties
in a good faith effort to negotiate and agree upon a commercially
reasonable alternative to avoid foreclosure and held at a location
mutually convenient to the parties. Both the homeowner/mortgagor and
lender/mortgagee must be physically present for the mediation conference
unless telephone participation is mutually agreed upon.
A neutral not-for-profit organization with offices located
in the City of Springfield and experienced in the mediation of the
residential foreclosure process, familiar with all programs available
to help homeowners avoid foreclosure, and knowledgeable of the mortgage
foreclosure laws of the commonwealth. The mediation program manager
shall sign a user agreement with the City authorizing the receipt
and use of personal and financial information for the purposes of
the mediation program only. Such mediation program manager shall ensure
the security and confidentiality of any and all information received
or exchanged under the program consistent with applicable federal,
state, and City laws. Access to such program information shall be
limited to those officers and employees of the organization who require
the information to properly perform services under the City's
mediation program, and that the organization and its officers and
employees may not access, modify, use or disseminate such information
for inconsistent or unauthorized purposes.
The foreclosure mediation program established in the City of Springfield pursuant to this article and described in § 182-5.
An individual:
Whose training complies with the qualifications standards for
neutrals specified in the guidelines for training mediators adopted
by the Supreme Judicial Court of Massachusetts pursuant to Rule 8
of the Uniform Rules for Dispute Resolution; and
Who has completed training on foreclosure mediation; and
Who has a working knowledge of all federal, state, and City
programs available to help homeowners retain their homes.
An entity to whom property is mortgaged, the mortgage creditor
or lender, including, but not limited to, service companies, agents,
lenders in a mortgage agreement, and any successor in interest and/or
assignee of the mortgagee's rights, interests or obligations
under the mortgage agreement.
A loan to a natural person made primarily for personal, family
or household purposes secured wholly or partially by a mortgage on
residential property.
An entity which administers or at any point administered
the mortgage; provided, however, that such administration shall include,
but not be limited to, calculating principal and interest, collecting
payments from the mortgagor, acting as escrow agent or foreclosing
in the event of a default.
The holder of a mortgage loan that is secured wholly or partially
by a mortgage on residential property.
Real property that is owner-occupied as an owner's principal
residence, located within the City, that is either a single-family
dwelling or a structure containing not more than four residential
units, and shall also include a residential condominium unit or a
residential co-op unit occupied by an owner as an owner's principal
residence.
The homeowner/mortgagor and the creditor/mortgagee or their
assigns or successors.
See "residential property" as defined in this section.
Notwithstanding any general or special law to the contrary,
all mortgage foreclosures in the City of Springfield pertaining to
residential property which is owner-occupied as the owner's principal
residence shall be required to go through a City-approved mediation
program as set out in this article, and obtain a certificate verifying
the mortgagee's good faith participation in foreclosure mediation.
The City of Springfield is hereby empowered to establish a mediation
program relative to mortgage foreclosures in accordance with this
article and promulgate regulations as necessary and appropriate to
implementing such a mediation program involving mortgagees, creditors,
mortgagors, homeowners, utilizing City-approved mediation program
managers and mediators to mediate between the mortgagee, or its assigns,
and a mortgagor/homeowner who owns residential real property in the
City which is occupied by the mortgagor as his or her principal residence.
Such mediation shall be facilitated by a City-approved mediation program
manager according to procedures established by this article. Said
mediation program may only relate to the mediation of mortgage foreclosures
of residential real property in the City of Springfield that is the
mortgagor's principal residence.
A.
The City shall establish a mediation program to provide mediation
for all foreclosures of mortgages on owner-occupied residential property
with no more than four units that is the primary residence of the
owner-occupant. The program shall address all issues of foreclosure
where applicable, including but not limited to reinstatement of the
mortgage, modification of the loan and restructuring of the mortgage
debt, including the reduction and forgiveness of mortgage debt. The
parties are required to make a good faith effort in mediation as defined
in this article. Mediations conducted pursuant to the program shall
use the calculations, assumptions and forms that are established by:
(1)
The Federal Deposit Insurance Corporation and published in the Federal
Deposit Insurance Corporations Loan Modification Program Guide available
on the Federal Deposit Insurance Corporation's publicly accessible
website;
(2)
The Home Affordable Modification Program;
(3)
Any modification program that a lender uses which is based on accepted
principles and the safety and soundness of the institution and recognized
by the National Credit Union Administration, the Division of Banks
or any other instrumentality of the commonwealth;
(4)
The Federal Housing Agency; or
(5)
Similar federal programs.
B.
The City shall provide for a means of evaluating and selecting qualified
mediation program managers. The City shall also provide for a means
of assessing and evaluating annually the City's mediation program,
including reports and data related to:
(1)
The number of mortgagors who are notified of mediation;
(2)
The number of mortgagors who attend mediation and who receive counseling
or assistance;
(3)
The number of certificates of completion issued under the program;
and
(4)
The results of the mediation process, including the number of loans
restructured, number of principal write-downs, interest rate reductions
and, to the extent such information is available, the number of mortgagors
who default on mortgages within a year after restructuring.
C.
The City may terminate a mediation program manager's participation
in the mediation program for good cause, as determined by the appropriate
City official. In such case, the mediation program manager shall deliver
to the City all records and information in its possession for appropriate
preservation and storage.
Except for financial information otherwise permitted by law
to be disclosed, any financial statement or information provided to
the City or its approved independent counseling agencies or provided
to the mortgagee or mortgagor during the course of mediation in accordance
with this article is confidential and shall not be available for public
inspection. Any financial statement or information to reasonably facilitate
the mediation shall be made available as necessary to the mediator
and to the attorneys or representatives, if any, of the parties to
the mediation. Any financial statement or information designated as
confidential under this section shall be kept separate and apart from
other papers and matters not the subject of the mediation. No mortgagee
shall be required to disclose information in violation of MGL c. 93H,
and 201 CMR 17.
[Amended 1-13-2014]
Within 10 days of serving notice upon the mortgagor pursuant
to MGL c. 244, § 35A(g), the mortgagee or creditor shall
provide the City with a copy of said notice. The receipt of said notice
shall constitute the beginning of the mediation process as set forth
in this article, and at that time the City shall notify the creditor/mortgagee
and the mortgagor of their rights and responsibilities under this
article regarding mediation. It is the intent and purpose of this
article that mediation commence within 45 days of the mortgagor receiving
notice of his or her right to cure as provided in MGL c. 244, § 35A(g)
and (h). The City shall refer the matter for mediation to an approved
mediation program manager, which shall have the responsibility of
assigning a mediator and scheduling the parties to immediately commence
mediation pursuant to this article. The parties shall participate
in good faith in such mediation consistent with the creditor's
and mortgagor's rights and obligations set forth in MGL c. 244,
§ 35A, and the mediation shall proceed with the parties'
good faith effort to negotiate and agree upon a commercially reasonable
alternative to foreclosure as defined in MGL c. 244, § 35A(c).
The mediation shall continue without delay until completion, but shall
in no way constitute an extension of the foreclosure process, nor
an extension of the right to cure period. Notwithstanding the limitation
in the previous sentence, the mediation may be extended by mutual
agreement for good cause.
The mediation program established by this article shall include,
and be limited to, the following steps:
A.
The parties shall participate in a mandatory loan/mortgage mediation
conference at a location mutually convenient to the parties. All parties
and/or their respective representatives present at said mediation
conference must have authority to enter into any agreements renegotiating
the mortgage that is the subject of the foreclosure, or to otherwise
resolve the pending foreclosure. Telephone participation by the creditor/mortgagee
shall not be permitted unless mutually agreed to by all parties.
B.
Said mediation conference shall be scheduled at a time and place
to be determined by the mediation program manager, but not later than
45 days following the mortgagor's receipt of his or her notice
of right to cure. The parties will be noticed under the mediation
program by certified and first class mail.
C.
Prior to the scheduled mediation conference, the mortgagor shall
be assigned a City-approved loan counselor. If the mortgagor is already
working with a City-approved loan counselor, no assignment is necessary.
However, such loan counselor must agree to work with the mortgagor
during the mediation process in accordance with the provisions of
this article.
D.
The mortgagor shall cooperate in all respects with the mediation
program manager, providing all necessary financial and employment
information. The mortgagor shall complete any and all loan resolution
proposals and applications as appropriate. The mortgagor must provide
evidence of current income. The mortgagee's representative shall
bring and make available the mortgage, note, all assignments, as well
as a detailed accounting of the outstanding balance, costs and fees.
E.
If, after two attempts by the mediation program manager to contact
the mortgagor, the mortgagor fails to respond to the mediation program
manager's request to appear for the mediation conference, or
the mortgagor fails to cooperate in any respect with the requirements
outlined in this article, the requirements of this article will be
deemed to be satisfied upon verification by the City-approved mediation
program manager that the required notice was sent; and if so, a certificate
shall be issued immediately by the mediation program manager certifying
that the creditor/mortgagee has satisfied the mediation requirements
of this article.
F.
If it is determined, after a good faith effort made by the creditor/mortgagee
at the mediation conference with the mortgagor, that the parties cannot
come to an agreement to renegotiate the terms of the loan in an effort
to avoid foreclosure, such good faith effort on behalf of the creditor/mortgagee
shall be deemed to satisfy the requirements of this article. A certificate
certifying such good faith effort pursuant to this article shall be
issued immediately and without delay by the mediation program manager
authorizing the creditor/mortgagee to proceed with its rights under
Chapter 244 of the General Laws.
The City of Springfield is hereby authorized to enact and from
time to time revise by ordinance a reasonable and appropriate mediation
registration fee to be charged to the parties for the services attendant
to administering the mediation program established under this article.
A mortgagor's portion of the fee shall not exceed 15% of the
total cost of the mediation. A mortgagor's inability to pay for
mediation shall not be a bar to participation in the mediation program.
A.
A mortgagee's failure to comply with any section of this article
shall result in a fine of $300 owed to the City of Springfield, for
each instance of a violation, to be charged to the mortgagee in accordance
with MGL c. 40, § 21.
B.
Every calendar day of noncompliance with the sections of this article
shall constitute a separate violation subject to the penalties described
under this section, up until the end of the right-to-cure period.
C.
Said fine or fines under this section shall be recovered by indictment
or complaint pursuant to MGL c. 40, § 21.
D.
No fines pursuant to this article shall be charged to the borrower
either directly or indirectly.
