The required state dispute resolution program has not been set up, slowing many repossessions
POSTED: 1:30 a.m. HST, May 29, 2011
It will be several months until a key consumer-protection provision of Hawaii's overhauled foreclosure law can be used. But there has been one immediate impact: a freeze on many new foreclosures and auctions of homes owned by occupants.
The new law, which took effect earlier this month, did not prescribe a foreclosure moratorium, but the law prohibits lenders from holding nonjudicial foreclosure auctions until borrowers have an opportunity to participate in a dispute resolution program.
The dispute resolution program, a pivotal piece of the law, is slated to begin operating by Oct. 1. So in effect, existing foreclosure cases between owner-occupants and lenders are on hold for up to five months.
Several hundred to a couple thousand auctions of owner-occupant homes could be frozen, based on a rough estimate derived from RealtyTrac foreclosure data.
Some 365 homes have been repossessed by lenders each month on average this year through April, according to the real estate research firm.
The law also is hindering lenders from starting some new foreclosure cases until the state is ready with the dispute resolution program. This could postpone hundreds of foreclosure filings over the next few months.
The freeze stands to affect many, but not all, auctions and new foreclosure cases.
Only nonjudicial foreclosures against homeowners who have lived in their homes for a minimum 200 consecutive days are eligible to participate in the dispute resolution program.
Excluded are judicial foreclosure cases, which represent a small minority of home foreclosures, and cases involving commercial property, time shares and homes owned by investors. Foreclosures initiated by condominium or homeowner associations are also exempt from this aspect of the law.
The freeze, to be sure, is temporary. But it's not yet clear how lenders and borrowers will proceed with foreclosures under the law once all of its parts go into effect.
The law, Act 48, was enacted May 5 when Gov. Neil Abercrombie signed Senate Bill 651. The law gives owner-occupants in nonjudicial foreclosure an option to force lenders or mortgage servicers to engage in face-to-face or teleconferenced dispute resolution overseen by a professional facilitator before a foreclosure can be completed with an auction of the property.
UNDERSTANDING DISPUTE RESOLUTIONA key provision in Hawaii’s new foreclosure law is dispute resolution. Below are details about borrower participation:
>> Participation is limited to owner-occupants of residential property under nonjudicial foreclosure. (Nonjudicial foreclosures happen when lenders pursue foreclosure outside court, which is the case for most home foreclosures in Hawaii.)
>> Owner-occupants must reside at the property for a minimum 200 consecutive days.
>> Owners of time shares, vacation homes and commercial property aren’t eligible.
>> Participation is optional and isn’t expected to be right for people who are jobless or otherwise can’t pay a reasonably restructured mortgage.
>> If a homeowner doesn’t elect dispute resolution, the foreclosure may proceed. If not participating in dispute resolution, a homeowner may convert a nonjudicial foreclosure to a judicial foreclosure by filing a petition with state Circuit Court by Aug. 15 for existing cases or within 30 days after receiving a foreclosure notice.
>> If a qualified homeowner elects dispute resolution, the lender must participate.
>> Participating homeowners must receive counseling from a certified housing or finance counselor before the dispute resolution meeting.
>> Homeowners are required to provide income and loan documentation as well as records of any loan modification efforts.
>> The program costs $300 for a participating homeowner.
>> Existing foreclosure cases that haven’t already resulted in a property auction must be refiled and will be subject to dispute resolution.
>> Lenders will be required to notify borrowers and the state Department of Commerce and Consumer Affairs of nonjudicial foreclosure cases. The agency will then send information to homeowners about the dispute resolution program.
>> Lenders can’t file such notices until the program is set up. It could be Oct. 1 before the program is running.
>> Once the program is running, DCCA will take no longer than 20 days after receiving a dispute resolution application to set a date, time and place for a dispute resolution session run by a trained mediator. Session will be scheduled within 30 to 60 days unless an alternate date is agreed to mutually.
>> Dispute resolution session shall be no more than three hours but may be extended by one additional three-hour session at the facilitator’s discretion.
>> If parties reach an agreement, foreclosure is terminated.
>> If parties don’t reach an agreement, foreclosure resumes.
Another part of the law allows borrowers to convert a nonjudicial foreclosure to a judicial foreclosure overseen by a judge.
Industry observers say it will be interesting to see how use of the law plays out — especially regarding how many borrowers use the dispute-resolution tool and whether lenders avoid it by turning to judicial foreclosure.
State officials are working to set up the dispute resolution program.
The Department of Commerce and Consumer Affairs will run the program with help from the Judiciary.
Under the law, lenders must send foreclosure notices to DCCA in addition to borrowers, and after that the agency will send borrowers information about the dispute resolution program.
Once a borrower receives a notice from DCCA, he or she has 30 days to decide whether to seek dispute resolution. If the borrower opts to participate, the borrower must consult with a housing or credit counselor, and the agency has 20 days to schedule a meeting between the borrower, lender and a trained neutral mediator. Attorneys and counselors may attend the meeting, which is limited to one or two three-hour sessions.
Because of the deadlines, dispute resolution professionals, or mediators, must be ready for cases once DCCA begins accepting notices. So DCCA isn't accepting foreclosure notices from lenders yet.
The agency is hiring a specialist to administer the program but isn't estimating when it might be ready to accept foreclosure notices from lenders. The law requires the program be operating no later than Oct. 1.
The Judiciary will contract to provide mediators for the program. The Judiciary already works with mediators under its Alternative Dispute Resolution program designed to help mitigate all kinds of disputes without litigation.
The Judiciary's Alternative Dispute Resolution program contracts with Mediation Centers of Hawaii Inc., a statewide nonprofit coalition of five mediation organizations, under a $390,000 contract.
A similar setup could be arranged for the foreclosure program. The cost for the new program will be mostly paid for by user fees, and is designed to be financially self-sufficient.
Homeowners and lenders participating in the program must each pay $300. Lenders must pay an additional $250 into the program fund each time they start a nonjudicial foreclosure. A new $100 fee also was added to any purchase of owner-occupied homes that are sold through nonjudicial foreclosure.
To prime the fund and start running the program, DCCA is advancing $400,000 from its general operating fund to pay for the program administrator, an office assistant, mediation services and other expenses.
Typically, mediators working in the Judiciary's Alternative Dispute Resolution program volunteer their time. Mediators include a large number of attorneys and other business professionals often with expertise in specific subject areas of disputes. The foreclosure mediation program will require special training for mediators, though mediation industry representatives believe there are enough mediators to handle the anticipated extra demand.
Hawaii's largest mediation firm, Mediation Center of the Pacific, has about 200 volunteer mediators, according to Tracey Wiltgen, executive director of the firm and administrator of the coalition.
It's hard to estimate how many borrowers will elect to participate in foreclosure mediation. In cases where a homeowner can't pay even a reasonably reduced mortgage payment, mediation won't make sense. Some idea of participation can be gleaned from a program in Nevada largely used as a model for Hawaii's program.
Nevada has the worst foreclosure problem in the country, with foreclosure affecting 1 out of every 11 households in that state last year.
From July 2009, when Nevada's program was launched, through June 2010, borrowers sought dispute resolution in 11 percent of foreclosure cases, representing 8,738 mediation efforts. In 46 percent of completed mediations, borrowers were able to stay in their home, according to Nevada judiciary officials.
If Hawaii has a similar experience, close to 1,370 borrowers might opt for dispute resolution, resulting in 630 staying in their homes. There were 12,425 foreclosure cases in Hawaii last year, according to RealtyTrac.
Of course, several factors stand to sway results, including differences in unemployment rates, property values, owner-occupant ratios and the extent of exotic, or nontraditional, loans in Hawaii compared with Nevada.
One major difference with Nevada's program is that it allows borrowers or lenders to have mediation decisions reviewed by a judge.
"We call our program mediation with a kick," said Michael Sommermeyer, quality assurance manager for Nevada's foreclosure mediation program.
Hawaii's program doesn't provide for judicial review, but borrowers can convert a nonjudicial foreclosure to a judicial foreclosure that is overseen by a Circuit Court judge. This option is anticipated to be used by borrowers who contend a lender is improperly foreclosing, and is not available if a borrower chooses dispute resolution.
The Judiciary adopted a petition form and temporary rules May 18 and is accepting conversion petitions.
Local foreclosure attorneys say lenders are carefully reviewing the law and studying their options. Some attorneys suspect lenders might sidestep the dispute resolution program by avoiding nonjudicial foreclosure in favor of judicial foreclosure.
Judicial foreclosures typically take longer and cost more, in part because legal documents and attorneys are involved. But one potential benefit for lenders is that they can seek to have borrowers pay any difference between what they owe and what a lender receives from selling their home. This is known as a deficiency judgment and can be collected long after foreclosure.
Deficiency judgments historically had not been pursued in Hawaii nonjudicial foreclosure cases, and are explicitly prohibited by the new law.
Lenders might deem the added expense of a judicial foreclosure worth it if they can collect big enough deficiency judgments.
There was no spike in judicial foreclosures in Nevada, but Nevada law allows deficiency judgments in nonjudicial foreclosure cases.
State Rep. Bob Herkes, who along with Sen. Rosalyn Baker was a chief architect of Hawaii's foreclosure reform bill, said the issue of lenders shifting to judicial foreclosures and deficiency judgment claims was a concern, but that he has no idea how serious the possibility might be.
Sommermeyer, the quality assurance manager for Nevada's foreclosure mediation program, said initial predictions by lenders that doom and gloom would result from Nevada's law haven't proved true.
Supporters of Hawaii's law generally believe lenders will embrace the new nonjudicial foreclosure requirements and work with borrowers more closely to avoid foreclosure where it's possible.
Stephen Levins, director of the state Office of Consumer Protection, believes that timetables under the dispute resolution program could actually speed up loan modification cases and resolve bad loans — either through restructuring or foreclosure — more quickly, which would benefit everyone.
If the dispute resolution program starts by Oct. 1, the first lender-borrower meetings are expected to start Jan. 1. The law calls for the program to expire Sept. 30, 2014.