Mediation

FORECLOSURE MEDIATION HELP BY STATE

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In response to the foreclosure crisis currently facing Florida, a number of individual judicial circuits have developed administrative procedures to give borrowers additional time and assistance in avoiding foreclosure.

- In the Fourth and Seventh Judicial Circuits, Duval and St. Johns County judges have required that all foreclosures filed have a “Notice of Legal Assistance Regarding Foreclosure Cases,” attached to the Complaint that provides borrowers with contact information for Jacksonville Area Legal Aid. Duval County judges in the Fourth Judicial Circuit are also attempting to open the lines of communication between homeowners and lenders through the establishment of a court-supervised “loss mitigation” program. Under the directives of this pending program, homeowners and creditors are given the option of filing a request for loss mitigation after the initial foreclosure complaint is filed. If the governing court enters a loss mitigation order, each party is required to designate a contact person to report to the court, negotiate in good faith, and provide the court with regular status updates detailing the negotiations.

- Nassau County judges have ordered that no foreclosure may be heard when either party appears only by telephone.

- Orange and Osceola County Judges from the Ninth Judicial Circuit, similarly cognizant of the need for substantive, face-to-face communication between the parties, have also ordered that no telephonic hearings may be conducted in foreclosure cases.

- In the Twelfth Judicial Circuit, Sarasota, Desoto, and Manatee County Judges have recently drafted new orders and forms governing foreclosures filed in those counties. These draft procedures require that a Circuit Foreclosure Liaison be appointed by each party as the court’s point of contact, and further establish the Homestead Foreclosure Conciliation Program (HFCP), which requires lenders to schedule a phone conference with homestead owners in an attempt to resolve the dispute.

- In the Eighteenth Judicial Circuit, Seminole County judges have ordered that for all residential mortgage foreclosure cases in which a responsive pleading seeking relief is filed by the borrower, the lender’s attorney must coordinate and schedule the case for mediation prior to scheduling the matter for final or summary judgment hearing. The mediation fees, which are set by administrative order, are paid in advance by the lender, and the mediation must be attended by an individual with full settlement authority. The matter may not be scheduled for final or summary judgment until this mediation process is complete.

The following list of foreclosure mediation programs was provided by the American Bar Association: Foreclosure Mediation Programs

Connecticut: The legislation mandates that homeowners facing mortgage foreclosure on primary residences may request mediation at no charge to them. The following links provide the legislation and a summary of the bill. The Connecticut program puts homeowners in direct contact with their lender to enable them to re-negotiate their mortgages by refinancing or restructuring their debt. Florida: Seminole County 18th Judicial Circuit issued an administrative order in July 2008 that all owner-occupied residential mortgage foreclosure actions be referred to mediation. The program mandates that counsel schedule the foreclosure case for mediation prior to scheduling the matter for a final or summary judgment hearing.

Iowa: In September 2007 a joint project between Iowa Mediation Services and the Attorney General’s Office established a mediation program enabling borrowers and lenders dealing with mortgage, refinancing, and foreclosure concerns to request meditation. This voluntary program includes a foreclosure hotline.

Michigan: On November 6, 2008 Michigan enacted the Michigan Home Foreclosure Prevention Act. The Act authorizes the commissioner to review the lender-borrowers information to determine whether foreclosure can be avoided. If appropriate, the commissioner may either extend the filing date for a foreclosure for up to 90 days and/or require the lender and the borrower to participate in mediation if there is a potential to work out new terms.

Minnesota: On November 20, 2008, Minnesota proposed the adoption of a “Homeowner-Lender Mediation Act.” Under the Act, before a lender forecloses on a property, the lender must give the debtor notice of the right to mediation. The homeowner then has a period of time (two weeks) to request mediation. The foreclosure process can be deferred for at least 90 days after the homeowner requested mediation so long as the parties negotiate in good faith. If a lender fails to act in good faith, the homeowner can request court-supervised mediation, in which case the foreclosure can be held in abeyance for another 60 days.

New Jersey: On October 15, 2008 the New Jersey assembly proposed Assembly Bill 2517 that will provide foreclosure mediation as part of a comprehensive plan of foreclosure prevention. In addition, New Jersey courts are requiring mediation in all cases in which homeowners contest owner-occupied foreclosure actions. The New Jersey foreclosure mediation program includes court referred mediation which is available to homeowners who have filed an answer and are contesting the foreclosure as well as to homeowners who fail to make a formal appearance and whose cases are uncontested.

New York: The Residential Mortgage Foreclosure Program - enacted in June 2008 - encourages lender-borrower negotiations prior to the filing of a foreclosure action. The program helps lender-borrowers to conduct court conferences as early as possible in the case to explore the possibility of a workout or settlement, and failing that, to arrive at a case management plan that helps avoid unnecessary delays. The homeowner is encouraged to access legal and financial counseling service providers before the early court intervention conference.

Ohio: In December 2007, the Supreme Court of Ohio recommended that all Ohio counties implement mediation residential mortgage foreclosure programs. The Court has developed an excellent mediation foreclosure page entitled “What You Need to Know” that provides questions, answers and resources for individuals facing foreclosure as well as ways for mediators to become involved. The Supreme Court of Ohio Dispute Resolution Section has also organized a multi-state group for individuals interested in building programs in their geographic area. To join this group please contact Jacqueline C. Hagerott at hagerotj@sconet.state.oh.us.

Pennsylvania: On November 12, 2008 the Court of Common Pleas of Philadelphia County adopted a Residential Mortgage Foreclosure Diversion Pilot Program. The program is designed to provide early Court intervention in residential owner occupied mortgage foreclosure cases.

SOURCE: http://www.collinscenter.org/publications/publications_show.htm?doc_id=818538


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