Mortgage Loan Servicing Practices

(1) A third party loan servicer may not use unfair or unconscionable means in servicing any mortgage loan. Without limiting the general application of the foregoing, the following conduct is a violation of 209 CMR 18.41: (a) Failing to comply with the provisions of M.G.L. c. 183, § 54D regarding providing loan payoff information to a consumer. (b) Collecting private mortgage insurance beyond the date for which private mortgage insurance is no longer required. (c) Failing to comply with the provisions of M.G.L. c. 244, §§ 35A, 35B, or 35C regarding the right to cure a mortgage loan default and other requirements. (d) Knowingly or recklessly facilitating the illegal foreclosure of real property collateral. (e) Failing to comply with the provisions of 12 CFR 1024.38(b)(2) or other applicable provision of 12 CFR part 1024, regarding the evaluation of borrowers for loss mitigation options. (f) Failing to comply with the provisions of 12 CFR 1024.41(b)(2), or other applicable provision of 12 CFR part 1024, regarding providing borrowers with written acknowledgment of receipt of loan modification and required follow up. (g) Failing to comply with the provisions of 12 CFR 1024.41(g), or other applicable provision of 12 CFR part 1024, regarding the process of concluding the modification process prior to initiating a foreclosure. (h) Failing to comply with the provisions of 12 CFR 1024.40 or other applicable provision of 12 CFR part 1024, regarding providing borrowers with contact information for a designated individual. (i) Nothing in 209 CMR 18.41 shall be construed to prevent a third party loan servicer from offering or accepting alternative loss mitigation options, including other modification programs offered by the third party loan servicer, a short sale, a deed-in-lieu of foreclosure or forbearance, if the borrower requests such an alternative, is not eligible for or does not qualify for a loan modification under a government sponsored mortgage loan modification program or proprietary modification program, or rejects the third party loan servicer’s loss mitigation proposal. (j) 209 CMR 18.41(2) contains requirements that are in addition to those contained in M.G.L. c. 244, § 35B and 209 CMR 56.00: Foreclosure Prevention Options regarding “Certain Mortgage Loans”, as that term is defined pursuant to 209 CMR 56.02: Definitions. (2) Information and documentation provided by third party loan servicers in the context of foreclosure proceedings. To the extent a servicer is authorized to act on behalf of a mortgagee, (a) A third party loan servicer shall ensure that all foreclosure affidavits or sworn statements are based on personal knowledge. (b) A third party loan servicer shall ensure that foreclosure affidavits or sworn statements shall set forth a detailed description of the basis of affiant’s claimed personal knowledge of information contained in the affidavit or sworn statement, including sources of all information recited and a statement as to why the sources are accurate and reliable. (c) A third party loan servicer shall certify in writing the basis for asserting that the foreclosing party has the right to foreclose including, but not limited to, certification of the chain of title and ownership of the note and mortgage from the date of the recording of the mortgage being foreclosed upon. The third party loan servicer shall provide such certification to the borrower with the notice of foreclosure provided pursuant to M.G.L. c. 244, § 14, and shall also include a copy of the note with all required endorsements. (d) A third party loan servicer shall comply with all applicable state and federal laws governing the rights of tenants living in foreclosed residential properties.