In March, I reported on a package of ten bills being considered by the New Jersey legislature that would reform the state’s residential mortgage foreclosure process. The bills were built on recommendations from a Special Committee on Residential Foreclosures that examined the state’s foreclosure practices, policies, court rules and legislation and made suggestions for improvement. Since March, a handful of the original ten bills underwent slight modifications and currently, one of the initial bills is still under consideration. At the end of April, New Jersey Governor Phil Murphy signed a modified nine-bill package into law. Notably, one of the bills in the package codifies and makes permanent the state’s Foreclosure Mediation Program. Additional information about the other bills in the package can be found here.
Archive for the ‘State Legislation’ Category
Despite employing a number of practices in response to the mortgage crisis in 2008, New Jersey has had one of the highest foreclosure rates among all states since 2015. In a continued effort to address this issue, New Jersey Chief Justice Stuart Rabner established a Special Committee on Residential Foreclosures in 2017 to review current practices, policies, court rules and legislation and develop suggestions for reform. Last year, the Committee released its report, which summarizes the history and current state of foreclosure in New Jersey and includes recommendations for reform. Towards the end of their report, the Committee notes that not only do unresolved foreclosures lead to thousands of cases remaining on court dockets, but they also depress property values, burden municipalities and reduce tax revenues.
Building on the recommendations from the Committee, the New Jersey legislature is currently considering a ten-bill package that would reform the residential mortgage foreclosure process. Introduced at the end of January, this package of ten bills seeks to expedite the foreclosure process, decrease the amount of time foreclosed properties remain on the market, and make the foreclosure mediation program permanent. The following chart summaries each bill being considered.
|Recommends revising the Fair Foreclosure Act (“FFA”) to require that notices of intention to foreclose are filed at least 30 days (but no more than 180 days) before foreclosure commences. Additionally, the bill also requires that these notices also include a notice to homeowners that they are entitled to housing counseling through the Foreclosure Mediation Program.|
|Requires the Department of Community Affairs to create a database with an interactive map that details the foreclosed properties in the state. To fund this database, this bill also establishes a $30 fee that would be collected when deeds are recorded.|
|Modifies the foreclosure process to expand the definition of what constitutes a vacant and abandoned property and requires that sales of foreclosed properties occur within 60 days of a foreclosure judgment.|
|Allows all common interest community associations to record liens for unpaid assessments.|
|Requires creditors and their in-state agents to file their contact information with the Superior Court.|
|Clarifies that the New Jersey Residential Mortgage Lending Act also applies to any out-of-state person involved in residential mortgage lending in the state.|
|Requires anyone acting as a mortgage servicer to obtain a license from the state Department of Baking and Insurance.|
|Reduces the statute of limitations for residential mortgage foreclosure actions under the FFA from 20 years to six years from the date on which the homeowner defaulted.|
|Focuses on expediting residential mortgage foreclosure proceedings. Under this bill, sheriffs would be required to conduct foreclosure sales within 120 days of receiving orders to foreclose.|
|Codifies the Foreclosure Mediation Program and makes several adjustments to the program. These changes include notifying homeowners about the program when they receive their intent to foreclose and again when a mortgage foreclosure complaint has been filed against a property. The bill also requires that these written notices must be available in both English and Spanish.|
Although these bills have several more hurdles to pass before becoming law, their introduction indicates cooperation among the executive, legislative and judicial branches during the state’s foreclosure reformation.
New California Law Requires Attorneys to Obtain Consent from Parties Regarding Mediation ConfidentialityNicole Wilmet, February 27th, 2019
A new California law now requires attorneys to provide written disclosures to and obtain consent from their clients regarding California’s mediation confidentiality restrictions. The new law, effective January 1, 2019, applies to all civil cases except class actions. Under the new law, as soon as reasonably possible before a client agrees to participate in mediation or pre-mediation consultation, attorneys must provide their client with a written disclosure that identifies the confidentiality restrictions related to mediation. These written disclosures must be in at least 12-point font and be printed in the preferred language of the client. Additionally, these disclosures must be a single page document that is not attached to any other document provided to the client and be signed by both the attorney and the client.
The impetus behind this new law is to ensure that clients understand the expansive reach of mediation confidentiality. In California:
- all communications, negotiations or settlement offers that occur during the course of mediation are confidential;
- any statements made and writings prepared in connection with a mediation are not admissible as evidence or subject to discovery;
- mediators may not be compelled to testify in any subsequent civil proceedings about any communication or conduct that occurred during or in connection with a mediation; and
- a mediator’s report, opinion, recommendation, or finding about what occurred during the mediation may not be considered by a court.
In addition to improving understanding by requiring written disclosures, California’s new law is also a step by the legislature to address a policy concern identified by California courts regarding mediation confidentiality and attorney disciplinary action. See Cassel v. Superior Court, 51 Cal. 4th 113 (2011)(in which the Court held that a party was barred from disclosing private attorney communications, that were made during the course of a mediation, as evidence in his attorney malpractice suit).
In response to Cassel, in 2012 the California Legislature passed a resolution that directed the California Law Revision Commission (“CLRC”) to evaluate the relationship between mediation confidentiality and attorney malpractice. In 2017, after five years of studying the issue, the CLRC released its recommendation which encouraged creating an exception that would allow attorneys to be held accountable for mediation misconduct. Ultimately, the final language adopted by California’s new law permits the disclosure of communication in an attorney disciplinary proceeding to prove attorney compliance with written disclosures only if the communication does not disclose anything said or done during the mediation.