Rules in place for D.C. foreclosure-prevention program

Banks stopped repossessing District homes in mid-November as they waited on city officials to set the ground rules for an ambitious new foreclosure-prevention program.

The final rules were unveiled Friday, but that’s unlikely to jump-start D.C.’s foreclosure process. Lenders must sort through a backlog of troubled loans, set up new systems and reach out to struggling borrowers as they ramp up for the program.

Starting May 25, before lenders press forward with a foreclosure, they must first offer the affected homeowners a shot at mediation, which will enable them and the borrowers to explore foreclosure alternatives under the watchful eye of a neutral third party. Those alternatives can include lowering a borrower’s payment to an affordable level.

The program’s launch promises to slow the District’s ultra-speedy foreclosure process, though housing advocates and counselors are unsure whether it will indeed help borrowers save their homes or simply delay the inevitable. A similar program in Maryland offers mixed results.

“Our biggest fear is that people’s expectations for mediation will be too high,” said Marian Siegel, executive director of Housing Counseling Services in the District. “If the numbers don’t work, they don’t work.”

Even so, the program triggers a sea change in the way the District handles foreclosures.

Until recently, D.C. borrowers who defaulted on their loans would get a notice in the mail informing them that their homes would be sold at a foreclosure auction, typically 30 days after the notice was mailed. The lender’s only obligation was to send the notice. It did not have to verify whether the homeowner had received it.

Some D.C. homeowners got a break in September, when a few of the nation’s largest lenders temporarily halted foreclosures in some areas because of paperwork errors.

But on Nov. 17, then-Mayor Adrian Fenty (D) signed emergency legislation that revamped the city’s entire foreclosure system. Lenders were banned from initiating foreclosures until the rules were finalized on Friday. Those rules require lenders to send a notice to borrowers when they default on their loans. In that notice, the lenders must offer borrowers a chance to opt for mediation. Borrowers must pay $50 to participate.

“People are going to get a very heavy packet and they should open it,” said Wendy Weinberg, a supervising attorney at the Legal Aid Society of D.C. “They will have only 30 days to elect mediation and if they don’t, they will lose the opportunity and the lender will have the right to sell their homes in 30 days.”

If borrowers do not respond or opt out, the District’s Department of Insurance, Securities and Banking (DISB) will issue a certificate to the lender confirming that it complied with the law and enabling the lender to move forward with a foreclosure.

The new rules are not likely to immediately open the floodgates on default notices. Lenders may want to send a few borrowers through this process to test it out before they commit to sending out hundreds of foreclosure notices, several attorneys said.

“There’s going to be a learning curve now that lenders have some direction on what the forms are that need to be filed,” said Roy Kaufmann, a real estate attorney in the District and a lobbyist for the D.C. Land Title Association. “A lot of these forms are computer-generated.”

Jeffrey Fisher, an attorney who handles D.C. foreclosures, said he’s advising lenders to create a “game plan” before sending out the notices because any missteps can cost them.

DISB, which is running the mediation program, is hiring administrative law judges and attorneys to act as mediators. Those mediators can slap lenders with a $500 fine for each day they do not act in “good faith,” a condition Fisher finds problematic.

“That’s what makes it tricky,” Fisher said. “You have lots of rules on what is and isn’t good faith but in the end it’s very subjective. It’s going to be a trap for lenders.”

Roughly two dozen states have mediation programs, according to the National Consumer Law Center. The one in Maryland allows homeowners who were rejected for loan modifications to opt for mediation.

Since Maryland’s program was enacted in July, 712 borrowers have applied for mediation, according to state records. Of those, 153 reached an agreement that satisfied them and their lenders, even if it meant losing their homes in the end.

“In one case, we were able to negotiate for a woman to stay in her house long enough for her child to complete the school year,” said Anthony DePastina, a consumer attorney at Baltimore’s Civil Justice. “Sometimes it’s about getting a soft landing.”

Another 129 cases are in limbo and 430 were not resolved, sometimes because the borrower did not show up for mediation sessions.

The process can be fraught with glitches, said Laura Margulies, a Maryland attorney. She said she managed to secure a loan modification for one of her clients in mediation seven months ago, but the lender has yet to come through with the paperwork.

“I have to go back to court to compel the lender to deliver those documents,” Margulies said. “But this was a better result than having my client lose the house.”

Dina ElBoghdady covers housing policy for The Washington Post.
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