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FILED 'OHNA.ToMAsnéo
IN THE SUPREME COURT OF FLORIDA DEC 16 2013
ctsag EME COURT
SUPREME CASE NO. SC13-1800
L.T CASE NO. 4D12 - 2831, 11 - 11023
I ''''^"'''^^'"'^"^"^"T"^"°°""'' PETITIONER
VS.
BANK UNITED
RESPONDENT
ON REVIEW FROM THE FOURTH DISTRICT COURT OF APPEAL
PETITIONER LILIA NIVIA A/K/A SAMANTHA ROUSSELL
INITIAL BRIEF
I LILIA NIVIA A/K/A SAMANTHA ROUSSELL
PETITIONER
19940 STONEBROOK ST. WESTON, FL 33332
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TABLE OF CONTENTS
I
I I Table of citations
Preface
Statement of the case and
Assignments of error
Summary of Argument
Argument
Conclusion
I Certificate of Service
Certificate of Compliance
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2
facts 3-6
7
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9-13
14
15
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I TABLE OF CITATIONS
1.-Directive 10-02, March 21, 2010
2.-Paragraph 2.3.2 (Non-Approval Notice) Chapter II:HAMP,
MHA
I Handbooks V 3. 2 and V 4 . 3
I 3.-Paragraph 3.4.3 (Certification Prior to Foreclosure
Sale)
Chapter II: HAMP, MHA Handbooks V 3.2 and V 4.3
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PREFACE
In this Brief, the Petitioner Lilia Nivia will be referred to
as
"Nivia", the Respondent Bank United will be referred to as
"The
I Bank".
The following symbols
I < «>«eocre ¤n×»»eei·
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will be used:
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STATEMENT OF THE CASE AND FACTS
1.-On August 5, 2005 Nivia executed and delivered a Note and
a
Mortgage for the amount of $491,700.00 Four hundred Ninety
one
I Thousand Seven Hundred dollars on behalf of Bank United
FSB.
The collateral of this mortgage is the property located at
19440
Stonebrook Street, Weston Florida 33332.
I 2.-That on May 21, 2009 Bank United FSB was closed by the
Office
of the Thrift Supervisor ("OTS") and the Federal Deposit
Insurance Corporation ("FDIC") was appointed receiver.
3.-Subsequent to the closure of Bank United , FSB , " The
Bank"
I acquired the assets and most of the liabilities of Bank
United
, FSB, from the FDIC as Receiver for Bank United , FSB.
4.-On May 12, 2011 "The Bank" filed a Verified Foreclosure
Complaint in the 17th JudiCial CirCuit Of Florida, Case No.
11011023 against "Nivia".
5.-On May 12, 2011, the Clerk of the Court issued the
summons
for the action above stated.
6.-"Nivia" was not served with the summons and Complaint by
"The
Bank" s Process Server.
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http:491,700.00
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7. - On July 6, 2011 "The Bank" notified "Nivia" of the
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Foreclosure process by a publication on the Broward
Business Review .
8.-On August 31, 2011 "The Bank" filed a Motion for
Judgment of Foreclosure.
Daily
Summary
9.-On August 31,
against "Nivia".
2011 "The Bank" filed a Motion for Default
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10.-On November 30, 2011 the Circuit Court issued a Final
Judgment of Mortgage Foreclosure, scheduling a public sale
January 26, 2012.
for
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11.-On January 23, 2012 "Nivia" filed Bankruptcy Chapter 7
in
the U.S. Bankruptcy Court Southern District of Florida (Fort
Lauderdale) Case No. 12-11627-RBR.
12.-On February 14, 2012 Nivia' s Bankruptcy case was
dismissed.
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13.-On February 27, 2012
lower Court that she had
Plaintiff "The Bank".
"Nivia"
filed a
filed a Notice informing the
Modification package with
14.-On March 2, 2012 "The Bank"
Ogrodnik (Relationship Manager)
represented by Elizabeth
sent a letter to "Nivia".
On this letter "The Bank" informed
cure her mortgage delinquency. One
"Nivia" about her options
of the options was the
to
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offering of any MHA (Making Affordable)
Forbearance, and Deed in Lieu).
Program (HAMP, HAFA,
15.-On April 2, 2012 "The Bank"
Reschedule Foreclosure Sale.
filed a Plaintiff's Motion to
I 16.-On April 4,
Modification.
2012 "Nivia" filed a Motion to Finalize
I 17.-On April 4, 2012 the
Rescheduling Foreclosure
lower court issued
Sale for August 2,
an Order
2012.
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18.-On July 16, 2012 "Nivia" filed a Motion to Stop
Foreclosure
Sale of 08-02-2012 and Request of 120 Days to Finalize
Modification.
19.-On July 19,
requesting more
Application.
2012 "The Bank" sent a letter
documentation to evaluate her
to "Nivia"
Loan Modification
20.-On July 31, 2012 "The Bank" delivered a
informing her that her Modification Request
her Debt Ratio was too high.
letter to "Nivia"
was denied because
I 21.-On July 31, 2012 "Nivia" sent
disputing its calculations of her
a letter to
Debt Ratio.
"The Bank"
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22.-On July 31, 2012 the Lower Court issued an Order denying
Nivia" Motion to Stop Foreclosure Sale of 08-02-2012 and
Request of 120 Days to Finalize Modification.
23.-On July 31, 2012 "Nivia" appealed the order issued by
the
Lower Court denying "Nivia" Motion to Stop Foreclosure Sale
of
08-02-2012 and Request of 120 Days to Finalize Modification.
24.-On
Cancel
August 1, 2012 "Nivia" filed an Emergency Motion to
Foreclosure Sale of 08-02-2012 following HAMP guidelines.
I 25.-On August 1, 2012 the Lower Court
Cancel Foreclosure Sale of 08-02-2012
Denied Nivia' s
following HAMP
Motion to
guidelines.
26.-On
opened
August 3, 2012 the Fourth District Court
the Case Number 4D12-2831.
of Appeals
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27.-On May 31, 2013 "Nivia" filed in the Fourth District
Court
of Appeals filed A Notice to Invoke Discretionary
Jurisdiction
of the Supreme Court.
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ASSIGNMENTS OF ERROR
1.-The Circuit Court erred when it issued the order of April
4,
2022 Re-scheduling the foreclosure Sale date for August 2,
2012.
2.-The Circuit Court erred when it issued the Order of July
31,
I 2012 denying Nivia's Motion to Stop Foreclosure Sale and
Request
of 120 days to finalize Modification .
3.-The Fourth District Court of Appeals erred when on
05-22-2012
affirmed the decision of the Circuit Court denying Nivia's
Motion to Stop Foreclosure Sale and Request of 120 days to
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SUMMARY OF ARGUMENT
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The Directive of 10-02 of March 24, 2010 is complemented by
paragraphs 2.3.2 (Non-Approval Notices) and 3.4.3
(Certification
prior to Foreclosure Sale) of Chapter II-HAMP, MHA Handbook
V
4.3 both clauses stipulate that prior to the foreclosure
auction
the servicer must give the borrower enough time to accept an
I alternative to foreclosure consequently the order matter of
this appeal should be reversed.
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ARGUMENT
FIRST ASSIGNMENT OF ERROR
The Circuit Court erred when it issued the Order of April 4,
2012 Re-scheduling the foreclosure sale date for August 2,
2012
due to the fact that Appellant requested a modification of
her
loan according to the guidelines of the Making Home
Affordable
Program (HAMP) .
On February 29, 2012 "Nivia" requested a modification of her
loan according to HAMP.
"The Bank" sent "Nivia" two letters: The first one dated
03-02
2012, acknowledging "Nivia " requests and the second dated
07
19-2012 stipulating that while "The Bank" was considering
Nivia's requests for HAMP (Home Affordable Modification
Program)
her home will not be referred to foreclosure or if the
foreclosure process was already in progress any scheduled
foreclosure sale will not occur pending The Bank's
I determination.
Consequently the Circuit Court should halt the foreclosure
proceedings.
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SECOND ASSIGNMENT OF ERROR
The Circuit Court erred when it issued the order of July 31,
I 2012 denying Nivia's Motion to Stop Foreclosure Sale and
Request
of 120 days to finalize modification.
I During the hearing "Nivia" invoke Clause 2.3.2 of V.4.3 MHA
Booklet (Non-Approval Notices for borrowers) that clearly
stipulates that a servicer may not conduct a foreclosure
sale
I within 30 calendar days after the date of a Non-Approval
Notice or any longer period required to review supplemental
material
provided by the borrower in response to a Non-Approval
Notice
unless the reason for non-approval is 1) Loan originated
after
January 1, 2009, not a first loan , or current unpaid
balance
above the program limit 2) Loan paid off , or charged off
and
borrower released from liability for repayment 3) property
condemned or has more than four dwelling units , 4) Loan
subject
to involuntary transfer to s nom-participant 5) Offer not
accepted by borrower /request withdrawn.
THIRD ASSIGNMENT OF ERROR
I The Fourth District Court of Appeals erred when on
05-22-2013
affirmed the order of the Circuit Court issued on July 31,
2012
on the grounds that the Court was not obligated to stop the
sale
for 30 days following the HAMP Supplemental Directive 10-02
of
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March 24, 2010 , because the directive does not require a
thirty
day postponement, where the request for HAMP modification
was
made after a foreclosure date have been set, and the reason
for
I denial was the
requirements.
ineligibility of the mortgagor under HAMP
I It is the true the Directive of 10-02 of March 24, 2010
stipulates
or conduct
that a servicer may not
a scheduled foreclosure
refer any loan to foreclosure
sale unless and until at
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least one of the following circumstances exists: The borrower
is
evaluated for HAMP and is determined to be ineligible for
the
program, but the same directive provide to the borrowers the
alternative to dispute the bank' s decision (Borrower' s
Response
period) .
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...the servicer may not conduct a foreclosure sale within30
calendar days after the date of a Non-Approval notice or any
longer period required to review supplemental material
provided
by the borrower in response to a non-approval notice unless
the
reason for non-approval is 1) Ineligible mortgage, 2)
Ineligible
property, 3) Offer not accepted by borrower/request withdrawn
or
4) the loan was previously modified under HAMP.
Furthermore the Directive 10-02 of March 21, 2010 is
complemented with paragraphs 2.3.2 (Non-Approval Notices)
and
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3.4.3 (Certification prior to foreclosure sale) of Chapter
II
I HAMP, MHA Handbooks V 3.2 and V 4.3.
I 2.3.2 Non-Approval Notices
For borrowers not approved for a TPP or permanent HAMP
modification, the Non-Approval
I Notice provides the primary reason(s) for the non-approval.
In
addition to the information listed in Section 2.3.1, any
Non-
Approval Notice must also: Include a description of other
I foreclosure alternatives for which the borrower may be
eligible,
if any, including but not limited to other modification
programs, short sale and/or deed in lieu of foreclosure.
I Identify the steps the borrower must take in order to be
considered for those options. If the servicer has already
approved the borrower for a foreclosure alternative program,
I information necessary to participate in or complete the
alternative should be included.
Whenever a non-government foreclosure prevention option is
I discussed, the notice should be clear that the borrower
was
considered but is not eligible for HAMP.
The servicer may not conduct a foreclosure sale within the
30
calendar days after the date of a Non-Approval Notice or any
longer period required to review supplemental material
provided
by the borrower in response to a Non-Approval Notice unless
the
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reason for non-approval is (1) ineligible mortgage, (2)
ineligible property, (3) offer not accepted by borrower
/request
withdrawn, or (4) the loan was previously modified under
HAMP.
3.4.3 Certification Prior to Foreclosure Sale
I Servicers must develop and implement written procedures
applicable to all loans that are potentially eligible for
HAMP
(and are subject to Section 2.2) that require the servicer
to
I provide to the foreclosure attorney/trustee a written
certification that (i) one of the circumstances under
Section
3.1 exists, and (ii) all other available loss mitigation
I alternatives have been exhausted and a non-foreclosure
outcome
could not be reached. This certification must be provided no
sooner than seven business days prior to the scheduled
foreclosure sale date (the Deadline) or any extension
thereof.
In addition, if the servicer is subject to section 4 of
Chapter
I, the servicer must consult the relationship manager and
obtain
affirmation via e.mail or other writing that, to the best of
the
relationship manager's knowledge, all available loss
mitigation
alternatives have been exhausted and a non-foreclosure
outcome
I could not be reached.
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I CONCLUSION
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The Circuit Court order of 07-31-2012 Denying Nivia' s
Motion
Stop Foreclosure Sale and Request of 120 days to Finalize
Modification should be reversed and this matter should be
remanded for further proceedings.
to
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I CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the
foregoing
has been served by U.S. mail to Kahane and Associates, P.A
at
8201 Peters Road , Suite 3OOO, Plantation, Florida 33324
this
November 15 , 2013 .
IL VIA A/K/A SAMANTHA ROUSSELL
I PETITIONER
19940 STONEBROOK ST .
WESTON, FL. 33332
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I I I CERTIFICATE OF COMPLIANCE I I hereby certify that this
petition complies with the font
requirements of Rule 9.210 of the Florida Rules of Appellate
procedure.
I I 4L1A4IvIA A/K/A SAMANTHA ROUSSELL
I PETITIONER
19940 STONEBROOK ST.
WESTON, FL. 33332
I I I I I I I I I
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IN THE SUPREME COURT OF FLORIDA
SUPREME CASE NO. SC13 - 1800
L.T CASE NO.: 4D12 - 2831, 11 - 11023
I LILIA NIVIA A/K/ A SAMANTHA ROUSSELL
I APPELLANT
VS.
BANK UNITED
APPELLEE
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APPENDIX TO BRIEF OF APPELLANT
I I LILIA NIVIA A/K/A SAMANTHA ROUSSELL KAHANE & ASSOCIATES,
PA
APPELLANT 8201 Peters Road, Suite 3000 19940 Stonebrook Street
Plantation, F133324 Weston, FL 33332
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I I INDEX TO APPENDIX TO BRIEF OF APPELLANT
I ITEM PAGE
SUPPLEMENTAL DIRECTIVE 10-02 OF MARCH 24, 2010 1-11
I "^"'"°"°"'^""°"°^"'"""°°"^""""''°"®·'"^°''''^"°'° "'' VERIFIED
COMPLAINT 16-44
MOTION FOR SUMMARY FINAL JUDGMENT OF FORECLOSURE 45-47
I "'"^''"°°"""'°'"°"'°^°''°""'°®""" ** MOTION TO STOP
FORECLOSURE SALE OF 08-02-2012 AND REQUEST OF 120
DAYS TO FINALIZE MODIFICATION 53-54
NOTICE OF HEARING (GENERAL) 55-56
BANK UNITED LETFER 57
ORDER OF JULY 31, 2012 58
I ""'''''^''°''^' EMERGENCY MOTION TO CANCEL FORECLOSURE SALE OF
08-02-12
FOLLOWING HAMP GUIDELINES 60-64
MOTION TO OBJECT SALE OF 08-02-12, TO VACATE CERTIFICATE OF
SALE AND OPPOSSITION TO ISSUANCE OF CERTIFICATE OF TITLE
65-66
VERIFIED STATEMENT AS TO MILITARY STATUS 67-69
I CERTIFICATE OF TITLE 70
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Help for America's HomeownerS MAKING HOME AFFORDABLE
Supplemental Directive 10-02 March 24, 2010
Home Affordable Modification Program - Borrower Outreach and
Communication
Background
In Supplemental Directive 09-01, the Treasury Department
(Treasury) announced the eligibility, underwriting and servicing
requirements for the Home Affordable Modification Program (HAMP).
Under HAMP, servicers apply a uniform loan modification process to
provide eligible borrowers with sustainable monthly payments for
their first lien mortgage loans. This Supplemental Directive
represents an ongoing effort to improve program effectiveness by
amending policies and procedures related to borrower outreach and
communication, especially with respect to the initiation and
continuation of foreclosure actions and extending HAMP benefits to
borrowers who have filed for bankruptcy court protection. These
changes become effective on June 1, 2010. The changes set forth
herein do not abridge a servicer's ability to service delinquent
loans in accordance with industry standards.
The significant changes described in this Supplemental Directive
include:
�042Clarification of the requirement to solicit proactively all
borrowers whose first mortgage loans are potentially eligible for
HAMP and who have two or more payments due and unpaid. Reasonable
solicitation efforts are defined.
�042 (i) a borrower has been evaluatedProhibition against
referral to foreclosure until either: and determined to be
ineligible for HAMP; or (ii) reasonable solicitation efforts have
failed.
�042A requirement that a servicer, in certain specific
circumstances, allow a 30-day borrower response period following
issuance of a Non-Approval Notice before a foreclosure sale may be
conducted.
�042A requirement that a servicer provide a written
certification to the foreclosure attorney or trustee stating that a
borrower is not HAMP-eligible before a foreclosure sale may be
conducted.
�042A requirement that servicers must consider borrowers in
active bankruptcy for HAMP if a request is received from the
borrower, borrower's counsel or bankruptcy trustee.
�042Clarification of the requirement that servicers use
reasonable efforts to obtain approval from investors to participate
in HAMP.
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EXHIBIT A BORROWER RESPONSE PERIOD
The model clause in this exhibit provides sample language that
may be used to explain the I borrower response period that exists
after a borrower is issued a Non-Approval Notice unless the
reason for non-approval is (1) ineligible mortgage, (2)
ineligible property, (3) offer not accepted by borrower/request
withdrawn or (4) the loan was previously modified under HAMP. Use
of the model clause is optional; however, it illustrates a level of
specificity that is deemed to be in compliance with language
requirements of this Supplemental Directive.
I You have 30 calendar days from the date of this notice to
contact [name of servicer] to discuss the reason for non-approval
for a HAMP modification or to discuss alternative loss mitigation
options that may be available to you. Your loan may be referred to
foreclosure during this time, or any pending foreclosure action may
continue. However, no foreclosure sale will be conducted and you
will not lose your home during this 30-day period [or any longer
period required for us to review supplemental material you may
provide in response to this Notice].
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This Supplemental Directive provides guidance to servicers of
first lien mortgage loans that are not owned or guaranteed by
Fannie Mae or Freddie Mac (Non-GSE Mortgages). Servicers of first
lien mortgage loans that are owned or guaranteed by Fannie Mae or
Freddie Mac should refer to the related HAMP guidelines issued by
the applicable GSE.
Borrower Communication
Borrower Solicitation Each servicer must have clear and
comprehensive internal written policies for identification and
solicitation of borrowers who are potentially eligible for HAMP
based on information in the servicer's possession. These procedures
should follow investor guidelines and comply with all contractual
restrictions and with applicable laws, rules and regulations,
including, but not limited to, the Fair Debt Collection Practices
Act.
Servicers must pre-screen all first lien mortgage loans where
two or more payments are due and unpaid to determine if they meet
the basic criteria for consideration under HAMP (one-to-four unit
residential property, occupied by the borrower as his or her
principal residence, not vacant or condemned, originated on or
before January 1, 2009, unpaid principal balance does not exceed
$729,7501 and not previously modified under HAMP). Servicers must
proactively solicit for HAMP any borrower whose loan passes this
pre-screen, unless the servicer has documented that the investor is
not willing to participate in HAMP pursuant to the "Investor
Solicitation" section of this Supplemental Directive.
Solicitation must include written communication clearly
describing HAMP. Use of the form of solicitation letter available
on www.HMPadmin.com shall satisfy this requirement. The servicer's
HAMP solicitation may also identify other options potentially
available to help the borrower cure the delinquency and retain
homeownership. A servicer is deemed to have made a "Reasonable
Effort" to solicit a borrower if over a period of at least 30
calendar days: (1) the servicer makes a minimum of four telephone
calls to the last known phone numbers ofrecord, at different times
of the day; and (2) the servicer sends two written notices to the
last address of record by sending one letter via certified/express
mail or via overnight delivery service (such as Federal Express or
UPS) with return receipt/delivery confinnation and one letter via
regular mail. Any contact with eligible borrowers, whether by
telephone, mail or otherwise, must (1) advise borrowers that they
may be eligible for HAMP; (2) clearly describe the Initial Package
required to be submitted by the borrower pursuant to Supplemental
Directive 10-01 and state what other information the servicer needs
to complete the HAMP analysis; (3) provide a toll-free telephone
number through which the borrower can reach a servicer
representative; and (4) identify any unique requirements the
servicer may have established for submission of an Initial Package
received later than 30 calendar days prior to a scheduled
foreclosure sale date. All contact attempts must be documented in
the servicing file. If the servicer has documentation evidencing
that it satisfied the Reasonable Effort standard for HAMP prior to
the effective date of this Supplemental Directive, re-solicitation
of the borrower is not required.
1Maximum loan tim t for one unit dwelling. 2 units - $934,200; 3
units - $1,129,250; 4 units - $1,403,400,
suppiemental Directive 10-02 Page 2
http:www.HMPadmin.com
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Successful efforts by a servicer to communicate with the
borrower or co-borrower about resolution of the delinquency are
termed "right party contact" for purposes of this Supplemental
Directive. If right party contact is established and the borrower
expresses an interest in HAMP, the servicer must send a written
communication to the borrower via regular or electronic mail that
clearly describes the Initial Package required to be submitted by
the borrower to request a HAMP modification. The communication
should:
�042Describe the income evidence required to be evaluated for
HAMP;
�042 the for Modification and Affidavit (RMA) (or other
proprietaryProvide Request financial information form substantially
similar in content to the RMA and, if necessary, a Hardship
Affidavit); and
�042Include an Internal Revenue Service (IRS) Form 4506T-EZ (or
IRS Form 4506-T, if necessary).
The communication should also include clear language stating
that during the HAMP evaluation the home will not: (i) be referred
to foreclosure; or (ii) be sold at a foreclosure sale if the
foreclosure process has already been initiated. In the
communication, the servicer must include a specific date by which
the Initial Package must be returned, which must be no less than 15
calendar days from the date ofthe communication. Electronic mail
for this purpose may only be sent to an email address provided by
the borrower when right party contact was made. Such email address
must be documented in the servicing file.
If right party contact is established prior to satisfaction of
the Reasonable Effort standard, the servicer must continue to take
steps to satisfy the Reasonable Effort standard until the Initial
Package is submitted by the borrower.
If right party contact is established but the borrower does not
submit an Initial Package, the servicer must resend the Initial
Package communication. Again, the servicer must include a specific
date by which the Initial Package must be returned, which must be
no less than 15 calendar days from the date of the second
communication. If the borrower does not respond by providing an
Initial Package within the required time period set forth in the
second communication, the servicer may determine the borrower to be
ineligible for HAMP.
If right party contact is established but the borrower submits
an incomplete Initial Package within the required time period, the
servicer must comply with the Incomplete Information Notice
requirements set forth in Supplemental Directive 10-01. If the
borrower does not respond to either the 30-day Incomplete
Information Notice or the 15-day Incomplete Information Notice by
providing a complete Initial Package within the required time
period, the servicer may determine the borrower to be ineligible
for HAMP.
The servicer is not required to send an Initial Package if, as a
result of discussions with the borrower, the servicer determines
that the borrower does not meet the basic eligibility criteria for
HAMP as described in Supplemental Directive 09-01, or the servicer
determines that the borrower's monthly mortgage obligation
(including principal interest, taxes, insurance and
Supplemental Directive 10-02 Page 3
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i homeowner's association fee, if applicable) is substantially
less than 31% ofthe borrower's gross monthly income. Such decision
must be documented in the applicable servicing file.
Other Borrower Communication As set forth in Supplemental
Directives 09-07 and 10-01, servicers must acknowledge the
Initial
I Package within 10 business days of receipt through a written
communication to the borrower that includes a description of the
servicer's evaluation process and timeline. Additionally, the
communication must include clear language that states that during
the HAMP evaluation the
I home will not: (i) be referred to foreclosure; or (ii) be sold
at a foreclosure sale if the foreclosure process has already been
initiated. If the Initial Package is received from the borrower via
email, the servicer may email the acknowledgement to the same email
address from which the Initial Package was received or other email
address designated by the borrower in the Initial Package.
I Servicer communications should provide the borrower with clear
written information designed to help the borrower understand the
modification process in accordance with Supplemental Directive
09-01. These communications must provide a toll-free telephone
number where the
I borrower can reach a representative of the servicer capable
ofproviding specific details about the HAMP modification process.
The hours of operation for the toll-free telephone number should be
listed.
Servicers must have adequate staffing, written procedures,
resources and facilities for receipt, management, retention and
retrieval of borrower documents to ensure that borrowers are not
required to submit multiple copies of documents. Servicers must
accept the RMA and other required verification documents submitted
on behalf of borrowers by HUD-approved housing counseling agencies,
non-profit consumer advocacy organizations, legal guardians, powers
of attorney or legal counsel when the borrower has provided written
authorization or provides written authorization contemporaneously
with the submission of the RMA. The borrower is considered to have
provided written authorization if a copy of the power of attorney,
order of guardianship, or other legal papers authorizing the third
party to act on behalfofthe borrower are provided. Written
authorization may be supplanted by the legal documents authorizing
a third party to act more generally on behalf of the borrower in
cases of disability or borrowers unavailable due to active duty
military service.
Servicers must have written procedures and personnel in place to
provide timely and appropriate I responses to borrower inquiries
and complaints in connection with HAMP within the timelines
specified in this and previous Supplemental Directives. These
procedures must include a process through which borrowers may
escalate disagreements to a supervisory level, where a separate
I review of the borrower's eligibility or qualification can be
performed.
Foreclosure Actions
I The following guidance replaces in its entirety the guidance
set forth on page 14 of Supplemental Directive 09-01 under the
heading "Temporary Suspension of Foreclosure Proceedings".
I Supplemental Directive 10-02 Page 4
5
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Prohibition on Referral and Sale A servicer may not refer any
loan to foreclosure or conduct a scheduled foreclosure sale unless
and until at least one of the following circumstances exists:
�042The borrower is evaluated for HAMP and is determined to be
ineligible for the program; or
�042The borrower is offered a trial period plan, but fails to
make a trial period payment by the last day ofthe month in which
such payment is due; or
�042The servicer has established right party contact, has sent
at least two written requests asking the borrower to supply
required information in accordance with this Supplemental Directive
and has otherwise satisfied the Reasonable Effort solicitation
standard, and the borrower failed to respond by the dates indicated
in those requests; or
�042The servicer has satisfied the establishing right party
contact; or
Reasonable Effort solicitation standard without
I �042The borrower or co-borrower states he or she is not
interested in pursuing a HAMP
modification and such statement is reflected by the servicer in
their servicing system.
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Borrower Response Period Supplemental Directive 09-08 describes
circumstances in which a written Non-Approval Notice must be
provided to borrowers who have not been approved for HAMP. The
servicer may not conduct a foreclosure sale within the 30 calendar
days after the date of a Non-Approval Notice or any longer period
required to review supplemental material provided by the borrower
in response to a Non-Approval Notice unless the reason for
non-approval is (1) ineligible mortgage, (2) ineligible property,
(3) offer not accepted by borrower/request withdrawn or (4) the
loan was previously modified under HAMP.
I A model clause describing these rights is attached as Exhibit
A. Use of the model clause is optional; however, it illustrates the
level of specificity that is deemed to be in compliance with the
language requirements ofthis Supplemental Directive.
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Halt ofExisting Foreclosure Actions During a Trial Period Based
on Verified Income With respect to a borrower who submits a request
for HAMP consideration after a loan has been referred to
foreclosure, the servicer shall, immediately upon the borrower's
acceptance of a trial period plan based on verified income as
described in Supplemental Directive 10-01 and for the duration of
the trial period, take those actions within its authority that are
necessary to halt further activity and events in the foreclosure
process, whether judicial or non-judicial, including but not
limited to refraining from scheduling a sale or causing a judgment
to be entered.
I The servicer shall not be in violation of this instruction to
the extent that: (a) a court with jurisdiction over the foreclosure
proceeding (if any), or the bankruptcy court in a bankruptcy case,
or the public official charged with carrying out the activity or
event, fails or refuses to halt some or all activities or events in
the matter after the servicer has made reasonable efforts to
I Supplemental Directive 10-02 Page 5
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move the court or request the public official for a cessation of
the activity or event; (b) the servicer must take some action to
protect the interests of the owner, investor, guarantor or servicer
of the loan in response to action taken by the borrower or other
parties in the foreclosure process; or (c) there is not sufficient
time following the borrower's acceptance of the trial period plan
for the servicer to halt the activity or event, provided that in no
event shall the servicer permit a sale to go forward. The servicer
must document in the servicing file if any of the foregoing
exceptions to the requirement to halt an existing foreclosure
action are applicable.
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Deadline for Suspension ofForeclosure Sales When a borrower
submits a request for HAMP consideration after a foreclosure sale
date has been scheduled and the request is received no later than
midnight of the seventh business day prior to the foreclosure sale
date (the "Deadline"), the servicer must suspend the sale as
necessary to evaluate the borrower for HAMP. Servicers are not
required to suspend a foreclosure sale when: (1) a request for HAMP
consideration is received after the Deadline; (2) a borrower
received a HAMP modification and lost good standing; (3) a borrower
received a HAMP offer and failed to make one or more payments under
the trial period plan by the last day of the month in which it was
due; or (4) a borrower was evaluated based upon an Initial Package
and determined to be ineligible under HAMP requirements.
The servicer shall not be in violation of this instruction to
the extent that a court with jurisdiction over the foreclosure
proceeding (if any), or the bankruptcy court in a bankruptcy case,
or the public official charged with carrying out the activity or
event, fails or refuses to halt the sale after the servicer has
made reasonable efforts to move the court or request the public
official for a cessation of the sale. The servicer must document in
the servicing file if the foregoing exception to the requirement to
suspend an existing foreclosure sale is applicable.
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A borrower will be deemed to have requested consideration for
HAMP when a complete Initial Package (i.e., RMA, Form 4506T-EZ,
required evidence of income) is received by the servicer or its
foreclosure attorney/trustee prior to the Deadline. However, the
servicer may establish additional requirements for requests
received later than 30 calendar days prior to a scheduled
foreclosure sale date, including, for example, a requirement that a
complete Initial Package be delivered through certified/express
delivery mail with return receipt/delivery confirmation to either
the servicer or the foreclosure attorney/foreclosure trustee. These
requirements must be posted on the servicer's website and
communicated to the borrower in writing in accordance with the
Borrower Solicitation requirements of this Supplemental Directive
or through other written communication.
8 If the borrower contacts the servicer prior to the Deadline,
the servicer must inform the borrower of the Deadline and any
submission requirements.
I Mitigating Foreclosure Impact The servicer must take the
following action to mitigate foreclosure impact:
I •042Simultaneous Trial Period Plan and Foreclosure
Explanation. When a borrower is simultaneously in foreclosure and
is either being evaluated for HAMP or is in a trial period plan,
the servicer must provide the borrower with a written notification
that
supplemental Directive 10-02 Page 6
7
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explains, in clear language, the concurrent modification and
foreclosure processes and that states that even though certain
foreclosure activities may continue, the home will not be sold at a
foreclosure sale while the borrower is being considered for HAMP or
while the borrower is making payments under a trial period plan.
Model language for this notification is attached as Exhibit B. Use
of the model language is optional; however, it illustrates the
level of specificity that is deemed to be in compliance with the
language requirements of this Supplemental Directive.
�042Foreclosure Attorney/Trustee Communication. Servicers must
develop and implement written policies and procedures to provide
notification to their foreclosure attorney/trustee regarding a
borrower's HAMP status, including whether the borrower is
potentially eligible for HAMP (and is subject to the Borrower
Solicitation requirements of this Supplemental Directive), and
whether the borrower is being evaluated for, or is currently in, a
HAMP trial period plan. Servicers must ensure that their
foreclosure attorney/trustee adheres to all of the requirements of
this Supplemental Directive with respect to referral to
foreclosure, stay of foreclosure actions and suspension of
foreclosure sales.
�042 Servicers must develop and implement writtenCertification
Prior to Foreclosure Sale. procedures applicable to all loans that
are potentially eligible for HAMP (and are subject to the Borrower
Solicitation requirements of this Supplemental Directive) that
require the servicer to provide to the foreclosure attorney/trustee
a written certification that (i) one of the five circumstances
under the "Prohibition on Referral and Sale" section of this
Supplemental Directive exists, and (ii) all other available loss
mitigation alternatives have been exhausted and a non-foreclosure
outcome could not be reached. This certification must be provided
no sooner than seven business days prior to the scheduled
foreclosure sale date (the Deadline) or any extension thereof.
Borrowers in Bankruptcy
Borrowers in active Chapter 7 or Chapter 13 bankruptcy cases
must be considered for HAMP if the borrower,2 borrower's counsel or
bankruptcy trustee submits a request to the servicer. With the
borrower's permission, a bankruptcy trustee may contact the
servicer to request a HAMP modification. Servicers are not required
to solicit these borrowers proactively for HAMP. Borrowers who are
in a trial period plan and subsequently file for bankruptcy may not
be denied a HAMP modification on the basis of the bankruptcy
filing. The servicer and its counsel must work with the borrower or
borrower's counsel to obtain any court and/or trustee approvals
required in accordance with local court rules and procedures.
Servicers should extend the trial period plan as necessary to
accommodate delays in obtaining court approvals or receiving a full
remittance of the borrower's trial period payments when they are
made to a trustee, but they are not required to extend the trial
period beyond two months, resulting in a total five-month trial
2 Where the borrower filed the bankruptcy pro se, (without an
attorney), it is recommended that the servicer provide information
relating to the availability of a HAMP modification to the borrower
with a copy to the bankruptcy trustee. This communication should
not imply that it is in any way an attempt to collect a debt.
Servicers must consult their legal counsel for appropriate
language.
supplemental Directive 10-02 Page 7
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period. In the event of a trial period extension, the borrower
shall make a trial period payment for each month of the trial
period, including any extension month.
When a borrower in an active Chapter 13 bankruptcy is in a trial
period plan and the borrower has made post-petition payments on the
first lien mortgage in the amount required by the trial period
plan, a servicer must not object to confinnation of a borrower's
Chapter 13 plan, move for relief from the automatic bankruptcy
stay, or move for dismissal of the Chapter 13 case on the basis
that the borrower paid only the amounts due under the trial period
plan, as opposed to the non-modified mortgage payments.
Borrowers who have received a Chapter 7 bankruptcy discharge in
a case involving the first lien mortgage who did not reaffirm the
mortgage debt under applicable law are eligible for HAMP. The
following language must be inserted in Section 1 of the Home
Affordable Modification Agreement:
"I was discharged in a Chapter 7 bankruptcy proceeding
subsequent to the execution of the Loan Documents. Based on this
representation, Lender agrees that I will not have personal
liability on the debt pursuant to this Agreement."
Substitution of Income Documents When a borrower is in an active
Chapter 7 or Chapter 13 bankruptcy, the servicer may accept copies
of the bankruptcy schedules and tax returns (if returns are
required to be filed) in lieu of the RMA and Form 4506T-EZ, and may
use this information to determine borrower eligibility (with the
income documentation). Servicers should request the schedules and
tax returns from the borrower, borrower's counsel or bankruptcy
court. If the bankruptcy schedules are greater than 90 days old as
of the date that such schedules are received by the servicer, the
borrower must provide updated evidence of income to determine HAMP
eligibility. Additionally, either directly or through counsel,
borrowers must provide a completed and executed Hardship Affidavit
(or RMA).
Waiver ofTrial Period Plan Pending development of systems
capability, and at the discretion of the servicer, borrowers in an
active Chapter 13 bankruptcy who are determined to be eligible for
HAMP may be converted to a permanent modification without
completing a trial period plan if:
�042The borrower makes all post-petition payments on their first
lien mortgage loan due prior to the effective date of the Home
Affordable Modification Agreement, and at least three ofthose
payments are equal to or greater than the proposed modified
payment;
�042The modification is approved by the bankruptcy court, if
required; and
�042The trial period plan waiver is permitted by the applicable
investor guidelines.
When payments under a bankruptcy plan are used in lieu of a
trial period in accordance with these guidelines, the servicer and
borrower will be eligible to accrue "pay for success" and "pay for
performance" incentives for the length of a standard HAMP trial
period.
supplemental Directive 10-02 Page 8
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Changes to several data reporting attributes under HAMP will be
required to enable servicers to report a bankruptcy plan in lieu of
a HAMP trial period. Servicers should look for a full description
and detail of the data attributes for bankruptcy reporting to be
posted on www.HMPadmin.com. Servicers may not exercise this waiver
authority until the data elements are posted and the system
capability exists to support this policy change.
Continued HAMP Eligibility
Servicers are reminded of those situations when a borrower may
seek reconsideration for a HAMP modification. As stated in
Supplemental Directive 10-01, a borrower who has been evaluated for
HAMP but does not meet the minimum eligibility criteria described
in the "HAMP Eligibility" section of Supplemental Directive 09-01
or who meets the minimum eligibility criteria but is not qualified
for HAMP by virtue of a negative NPV result, excessive forbearance
or other financial reason, may request reconsideration for HAMP at
any time prior to the Deadline if they experience a change in
circumstance. In these cases, the servicer is obligated to consider
the borrower's request pursuant to its obligations under the
Servicer Participation Agreement (SPA).
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A servicer's SPA obligation to offer the borrower a HAMP
modification is considered satisfied, and the borrower is not
eligible for a subsequent HAMP offer, if the borrower either (1)
received a HAMP modification and lost good standing, or (2) the
borrower received a HAMP offer and either failed to make one or
more payments under trial period plan by the last day of the month
in which it was due, or if applicable, failed to provide (i) all
required documents by the end of the trial period; or (ii) the Home
Affordable Loan Modification Agreement and all related documents by
the last day ofthe month in which the Modification Effective Date
occurs.
I Servicing Transfers of Loans in Foreclosure
i The servicer may transfer a loan free and clear of all
HAMP-related obligations under the SPA if one of the five
circumstances under the "Prohibition on Referral and Sale" section
of this Supplemental Directive exists with respect to such loan,
and any applicable response period has elapsed, unless a borrower
with continued HAMP eligibility requests consideration prior to the
effective date of the servicing transfer. Such loans are not
required to be transferred pursuant to the form of Assignment and
Assumption Agreement attached as Exhibit D to the Servicer
Participation Agreement. Servicers should refer to the "Transfers
of Servicing" section of Supplemental Directive 09-01 for guidance
regarding servicing transfers of loans modified pursuant to
HAMP.
Investor Solicitation
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Within 90 days of executing a Servicer Participation Agreement
(SPA), the servicer must review all servicing agreements to
determine investor participation in the program. Within 30 days of
identifying an investor as a non-participant, the servicer will
contact the investor in writing at least once, encouraging the
investor to permit modifications under HAMP.
I Supplemental Directive 10-02 Page 9
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Within 60 calendar days following the effective date of this
Supplemental Directive, participating servicers must, if they have
not already done so, provide to Fannie Mae, as Treasury's Program
Administrator: (1) the number of investors for whom it services
loans; (2) a list of those investors who do not participate in
HAMP; and (3) the number of loans serviced for each investor that
does not participate in HAMP. Servicers that execute a SPA after
the date of
I this Supplemental Directive must provide the investor
participation list to Fannie Mae, as Treasury's program
administrator, within 120 days of SPA execution.
Servicers are required to notify Fannie Mae, as Treasury's
Program Administrator, of changes to the Investor Participation
List within 30 calendar days of any change.
Documentation
Servicers are required to maintain appropriate documentary
evidence of their HAMP-related activities, and to provide that
documentary evidence upon request to Freddie Mac as the Compliance
Agent for Treasury. As Compliance Agent, Freddie Mac will
incorporate the additional requirements articulated in this
Supplemental Directive into its compliance program. Servicers must
maintain documentation in well-documented servicer system notes or
in loan files for all HAMP activities addressed in this
Supplemental Directive, including, but not limited to, the
following:
�042All HAMP related communications, whether verbal or written,
with or to the borrower or I trusted advisor (including but not
limited to the dates of communications, names of
contact person(s), and a summary of the conversation), including
any email correspondence to or from the borrower.
�042Pre-screening of loans for HAMP prior to referring any loan
to foreclosure or conducting scheduled foreclosure sales.
�042Postponement of scheduled foreclosure sales in applicable
scenarios.
I �042 or Chapter 13Substitution of income documents for
borrowers in active Chapter 7 bankruptcy.
�042Waiver ofthe trial period plan for borrowers in active
Chapter 13 bankruptcy.
�042Policies and procedures required by this Supplemental
Directive.
�042Certification prior to foreclosure sale.
�042Evidence of assessment of investor willingness to
participate in HAMP and any specific outreach to investors on
either a portfolio or loan-by-loan basis, including copies of any
contracts with investors relied upon in denying HAMP modifications.
This should include, where applicable, documentation relating to
specific parameters or limitations on participation required by
investors for steps in the waterfall.
�042Evidence of receipt of the Initial Package from a
borrower.
I Supplemental Directive 10-02 Page 10
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MAKING HOME AF FORDABLE I
E
Making Home Affordable~ Program Handbook for Servicers of
Non-GSE Mortgages
A of June 1, 20 1
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MAKING HOME AF FORDABLE
8
E 1
Chapter ||
Home Affordable Modification Program (HAMP)
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§
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and can request assistance in understanding the Borrower Notice
by asking for MHA Help.
Any information, disclosures or notices required by the
borrower's mortgage documents and applicable federal, state and
local law.
2.3.2 Non-Approval Notices
For borrowers not approved for a TPP or permanent HAMP
modification, the Non-Approval Notice provides the primary
reason(s) for the non-approval. In addition to the information
listed in Section 2.3.1, any Non-Approval Notice must also:
�042Include a description of other foreclosure alternatives for
which the borrower may be eligible, if any, including but not
limited to other modification programs, short sale and/or deed in
lieu of foreclosure.
�042Identify the steps the borrower must take in order to be
considered for those options.
�042If the servicer has already approved the borrower for a
foreclosure altemative program, information necessary to
participate in or complete the alternative should be included.
Whenever a non-government foreclosure prevention option is
discussed, the notice should be clear that the borrower was
considered but is not eligible for HAMP.
The servicer may not conduct a foreclosure sale within the 30
calendar days after the date of a Non-Approval Notice or any longer
period required to review supplemental material provided by the
borrower in response to a Non-Approval Notice unless the reason for
non-approval is (1) ineligible mortgage, (2) ineligible property,
(3) offer not accepted by borrower / request withdrawn, or (4) the
loan was previously modified under HAMP.
A model clause describing these rights is provided in Exhibit A.
Use of the model clause is optional; however, it illustrates the
level of specificity that is deemed to be in compliance with the
language requirements of this Handbook.
in addition, effective February 1, 2011, if the servicer has
performed an NPV evaluation, regardless of whether a negative NPV
result was the actual reason for the non-approval of the borrower,
the Non-Approval Notice must list the NPV Data Input Fields and
Values used in the NPV evaluation as listed in Exhibit A. The
purpose of providing this information is to allow a borrower who is
ineligible because the transaction is NPV negative the opportunity
to correct values that may impact the analysis of the borrower's
eligibility. All Non-Approval Notices must include an e-mail
address and mailing address for communicating with the servicer if
the borrower wishes to dispute the reasons for a non-approval
determination and to submit written evidence. Because the NPV Data
input Fields and Values must be disclosed to a borrower declined
for HAMP whenever an NPV evaluation is performed, regardless of
whether a negative NPV result was the reason for non-approval,
servicers are encouraged to assess all other borrower eligibility
criteria before performing an NPV evaluation in order to reduce
instances in which NPV Data input Fields and Values must be
disclosed when a negative NPV result is not the reason for
non-approval. In fact, if NPV Data Input Fields and Values are
included in a Non-Approval Notice but the reason the for the
non-approval was not a negative NPV result, the Non-Approval Notice
must include a statement that the borrower is not entitled to
dispute the NPV Data input Fields and Values.
A Non-Approval Notice must be mailed no later than 10 business
days following the date of the servicer's determination that a TPP
or a permanent HAMP modification will not be offered.
I Chapter 11: HAMP MHA Handbook v3.2 54
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3.4.2 ForeciosureAttorney/Trustee Communication
Servicers must develop and implement written policies and
procedures to provide notification to their foreclosure
attorney/trustee regarding a borrower's HAMP status, including
whether the borrower is potentially eligible for HAMP (and is
subject to Section 2.2), and whether the borrower is being
evaluated for, or is currently in, a TPP. Servicers must ensure
that their foreclosure attorney/trustee adheres to all of the
requirements of Section 3.1, Section 3.2 and Section 3.3 with
respect to referral to foreclosure, stay of foreclosure actions and
suspension of foreclosure sales.
3.4.3 Certification Prior to Foreciosure Sale
I Servicers must develop and implement written procedures
applicable to all loans that are potentially eligible for HAMP (and
are subject to Section 2.2) that require the servicer to provide to
the foreclosure attorney/trustee a written certification that (i)
one of the circumstances under Section 3.1 exists, and (ii) all
other available loss mitigation altematives have been exhausted and
a non-foreclosure outcome could not be reached. This certification
must be provided no sooner than seven business days prior to the
scheduled foreclosure sale date (the Deadline) or any extension
thereof.
4 Request forModifiCation For all TPPs with effective dates on
or after June 1, 20ìØ, a servicer may evaluate a borrower for HAMP
only after the servicer receives the following documents,
subsequently referred to as the "Initial Package". Throughout this
Handbook, unless otherwise indicated, all references to the
"borrower" include any and all co-borrowers. The Initial Package
includes:
1 •042RMA Form, •042IRS Form 4506-T or 4506T-EZ, •042Evidence of
income, and •042Dodd-Frank Certification.
For all documents required by Treasury (other than for IRS Form
4506-T/4506T-EZ), electronic submission and signatures are
acceptable.
4.1 Request for Modification and Affidavit (RMA) Form
E The RMA provides the servicer with borrower financial
information, including the cause of the borrower's hardship. The
financial information and hardship sections of the RMA must be
completed and executed by the borrower and, if applicable, any
co-borrower. The RMA is available on www.HMPadmin.com.
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Servicers may require use of the RMA by all borrowers requesting
consideration for HAMP or may use other proprietary financial
information forms that are substantially similar in content to the
RMA. When provided by or on behalf of the borrower, the RMA form
must be accepted by servicers in lieu of any servicer-specific
form(s). When the RMA is not used, servicers must obtain an
executed MHA Hardship Affidavit, which is available on
www.HMPadmin.com. Servicers may also incorporate all of the
information on this standalone affidavit into their proprietary
form. Throughout this Handbook, the term RMA is used to indicate
both the HAMP RMA form and servicer proprietary forms substituted
for the RMA.
4. i.1 HardshipAffidavit
E Included in the RMA is a Hardship Affidavit. Every borrower
seeking a modification, regardless of delinquency status must sign
a Hardship Affidavit that attests that the borrower is unable to
continue making full mortgage payments and describes one or more of
the following types of hardship:
I chapter 11: HAMP MHA Handbook v3.2 60
15
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CIVIL DIVISION CASE NO.
BANKUNITED, u
Plaintiff,
I - 11- ULIA NIVIA A/K/A ULIA ALCIRA NIV1A;1TNKNOWN SPOUSE OF
L1L1A NPilA A/K/A UUA ALCIRA NIVIA;
-lSLES AT WESTON llOMEOWNERS' ASSOC1ATION, INC.;sUNKNOWN
PERSON(S) IN POSSESSION OF THE SUBJECT PROPERTY;
Defendants. . .. '
yERIF1ED COMPLAINT
The Plaintiff, BANKUNITED, sues the Defendants named in the
caption hereofand alleges:
1. This is an action to foreclose a mortgage on real property in
BROWARD County, Florida.
2. On Auguai 5, 2005, LILIA NIVIA cxecuted and delivered a
promissory note and UUA NIVIA executed
and delivered a purchase money mortgage securing payment of the
same. Said mortgage was recorded in
OfFtcial Records Book 40625, Page 884, of the Public Records of
BROWARD County, Florida, and which
mortgaged the property described therem, then owned by and in
possession of anid mortgagor. The Note
was negotiated and/or transferred to the Plaintiff. A copy of
the noic, mortgage, and assigmnent of
mortgage are attached hereto and made a part bereof.
The payee of the note and originator of this mortgage loan,
BankUmied, FSB, Plaintiff's predecessor in 3.
interest, was closed on May 2L 2009, by the Ofnce of the Thrift
Supervision ("OTS") and the Federal
Deposit Insurance Corporation ("FDIC") was appointed
Receiver.
Subsequent to the closure ofBankUnited, FSB, Plaintiff
BankUnited, a newly chartered federal savings4.
bank, acquired the assets and most of the liabilities of
BankUnited, FSB from the FDIC as Receiver for
BankUnited, FSB. 5. The subject Mortgage was transferred from
BankUnited, FSB to Plaintiff. BankUnited.
-
I licensed by the State of Florida. Moreover, its principal
place of business is m the state ofFlorida;
therefore, it is not a foreign entity pursuant to Fla. Stat. §
665 1011 that can be required to post a cost bone.
'l. Plaintig is a person entitled to enforce the note and
mortgage.
8. Defendant(s), LILIA NTVIA A/K/A LILIA ALCllLA N1VIA, own(s)
the property..
9. There has been a default under the note and mortgage held by
Plaintiff in that the payment due luly 1, 2010,
and all subsequent payments have not been made. Plaintiff
declares the full amount due under the note and
mortgage to be now due.
10. All conditions precedent to the filing of this action have
been performed or have occurred.
I 1. There is now due, owing and unpaid to Plaintiff herem
$563,335.03 on principal of said note and mortgage,
§ plus interest from June 1, 2010, and title search expenses for
ascertaining necessary parties to this suit,
esemw shortage, advances, late fees, costs and attorneys
fees.
I 12. Plaintiff has obligated itself to pay the undersigned
attorneys a reasonable fee for their services herein.
13. UNKNOWN SPOUSE OF LlLIA NIVIA A/K!A LILIA ALCIRA NIVIA may
claim some mierest or lien
upon the subject property. Said interest, if any, is subject and
inferior to the hen ofPlaintiffs mortgage.
14. ISLES AT WESTON HOMEOWNERS' ASSOCIATlON, INC. may claim some
interest in or lien upon the
subject property by virtue of UNPAID ASSESSMENTS AND MAINTENANCE
FEES. Said interest, if
any, is subject and inferior to the lien of Plaintiff s
mortgage.
15. Defendant, Unknown Person(s) m Possession of the Subject
Property, may claim an interest in the subject
property by virtue of being in actual posession uf &une or
by virtue of c ten:mcy at will, hur the intemt if
any, is subject and inferior to the lien of Plaintiff s
mortgage, or is otherwise terminable as provided by law.
WH EREFORE, Plaintiff prays as follows:
(a.) That this Court will take jurisdiction of this cause. of
the subject matter and the parties hereto.
(b.) That this Court ascertain and determine die sums of money
due and payable to the Plaintiff from
the Defendants.
(c.) That the sum ofmoney found to be due as aforesaid be
decreed by this Court to be a lien upon the
lands described in Plaintiff s mortgagc.
(d.) That such lien be foreclosed in accordance with the rules
and established practice of this Court,
and upon failure of the Defendants to pay the amount of money
found to be due by them to the
Plaintiff, the said land be sold to satisfy said lien.
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of the Defendants herein or any person or parties claiming by,
through or under them since the
institution of this suit,
(f.) That all right, title or interest of the Defendams or any
person claiming by, through or under them
be forever barred and foreclosed.
(g.) That the Court retain jurisdiction of this cause to grant
further relief as the Court deems just and
proper including. but not hmited to, deficiency judgmentfs) if
the proceeds of the sale are
insufficient to pay Plainuffs claim. Reservation of jurisdiction
pertaining to deficiency judgments
shall not apply to matters wherein the debt has been properly
scheduled and discharged m
bankruptcy,
Kahane & Associates. P.A. 8201 Peters Road, Ste. 3000
Plantation, Florida 33324 Telephone: (954)382-3486 Telefacsunile.
(954) 382-5380
Dy Courtney Rilbourne. Esq. Bar. No.: 44349
Wendy C. MäDSWC FBN 1202
i VERfFICATION OF COMPLAINT
I Uuder penalty of perjury, I declare that I have read the
foregoing Complaint, and the facts alleged therein ar ue and
correct to the best of my knowledge and bel ef.
Dared: of Wu 2011.
Ban Un d -
Print Name and Title
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Hollywood, FL 33021 alww BANKUNITED, FSB
7815 NW 148 ST, MIAMI LAKES, FL 33016 DEPA Cl ER #2 18 Pages
e
I
BANKUNITED, FSB ATTN: POST CLOSING 7815 NW 148 STREET MIAMI
LAKES, FL 33016
DEFINITIONS
~ [Space Al>ove Thl
MORTGAGE Line For Recording Dataj · - · -- ,
Words used n multiple scenons of ilus document are defined below
and other v.ords are defined in Sections A 1 L 13 and 21. Ceriam
ndes regarding the usage of uords used m this documem are also
provided m Scenon ¼
18,. 20
(A) "Security Instrument" means this document, which is dated
August 05, 2005 Riders lo this document (B) "Borrower"is LlLIA
NIVIA, A SINGLE WOMAN
, together with all
8
Borrower is the mortgapor under this Securiiv Instrument (C)
"Lender"isBankUnited,FSB
Lender is a CORPORATION the laws of UNITED STATES OF AMERICA
7815 NW 148 STREET, MIAMI LAKES, Florida 33016
orpamzed and exisimp under
I
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. 1,endei is the morleauce under uns Securiiv Insuument. (D)
"Note"means the pron»ssory noic signed bs Honower and daiej August
05, 20Ö5 states that Borrower owes Lender Four Hundreif Ninety One
Thousand Seven Hundred and nol100
Dollars n!.S. $491,700.00 ) plus mierest. Borrower has in omised
to pay this debt in regular Periodic Payments and to pay the debt
in fuh not later than September 01, 2035
(E) "Property" means the propeny that is described below under
the headmg 'l ransfer of Rights in the Properi (F) "Loan" means the
debi evidenced by the Note. plus interest any prepayment charges
and hac charges due under the Note, and all sums due undes this
Security Instrument plus interesi.
(G) "Riders" means all Riders to this Securiiv Instrument that
are executed bv Porrower. The following Riders are to be executed
by Borrower [check box as applicablel
2
Adjustable Rate Rider Condannmum Rider 1 second llome Rider
Halloon Rider Planned I:nit Development Rider |_ Other(s)
[specifyl
j 1 -4 Fannly Rider Biweekly Payment Rider
1 FLORIDA-Siugle l·amily-Fannie Mae/Freddie Mac UNIFORM
INSTRUMENT
»EM 41M1 $1! MFFL3112 il* i "! ll /"& '
000458364-7 Form 3010 1/01 uMLATLAND E
°°''''°°" "°°°**°* 3 ''' "'4°"''''
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(H) "Applicable Law" means all controlling applicable federal
state and loca! statutes. regulatna. ordiLawe admimstrative roles
and orders (that have the eiTect of law) as well as all applicable
final, nowappeulable judicial opunota
(I) "Community Association Dues, Fees, and Assessments" means
all dues, fees. assessmenu and other charges that are imposed on
Horrower or the Property by a condoininiuni a»ociwion. honieuwners
association or sinnlar organization.
(J) "Electronic Funds Transfer" means any transfei of funds,
other than a transaction originated by cheel draft or
similar paper nistn»nent. which is initiated ihrough an
electronic ternünal telephonic ins1rument, computer, or magnetic
tape
so as to order. instruct, on authorize a finaticial msntunon to
dehn or creda an account Such term includes. but is not limited
to. ixunt-of4ale transfers. automated teller machine
transactions, tr:msfers mitmwd by ielephone. wire transfers and
automated clearinghouse transfers.
(K) "Escrow Items" means those items that are described in
Section 3. (L) "Miscellaneous Proceeds" means any compensatioti,
settlement, awmd of damages- or proceeds pmd by any third party
tother than insurance proceeds paid under the coverages described
in Section 5) for: ti) daniage to. or destruction of, the
Property; (ii) condemnation or other taking of all or any part
of the Property; (iii) conveyance in lieu of condeinnatioti: or
liv i udsrepresentations of, or omissions as to. the value
and/or condiuon of the Property. (M) "Mortgage Insurance" means
insurance protecting Lender against the nonpayment of. or defauh
on. the Loan. (N) "Periodle Payment" means the regularly schednkxl
amouni due fm ri) principal mal interest under the Note. plus
tii) any amounts under Section 3 ol'ihis Seenrity Instrumen1.
(O) "RESPA" means the l«eal hstate Settlemen1 Procedures Act i12
UXC k2601 ei sep ami its implementing repulation. Regulaiion X (2-1
C1'.R. Part 3500). as they nnght he amended from time to time, or
any addilional or successor legislation
or regulation thai governs the same subject tuaner. As used in
this Security Instrument. "RESPA" refers to all requirements and
restrictions that arc imposed in regard to a "feclerally related
mortgage loan" even if the Loan does not qualify as a
"federally related mortgage loan" under RESPA.
(P) "Successor in Interest of Borrower" means any party that has
taken iiile to the Property, whether or noi that party has assumed
Borrowcr's obligations under the Noie and/or 1bis Security
histrmnent.
TR ANSFER OF RIGHTS IN THE PROPERTY
Tlus Security Instrument secures to 1.ender:
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y ..Applicable Law" means all controlling applicable federal
stwe and local statutes. regulations. orperty by a condominium
asweianon. hoineowners associatum or simihir orpamzation.
(J) "Electronle Funds Transfer" means any transfer of 1onds.
other than a transaction originated by cheek. lustrmnent and the
Note. For
this purpose. Borrower does hereby moricace, grant and convey io
Lender. the followine described property located m theCOUNTY - �042
BROWARD
11ype dRecordmp.turbdicúon) |Nmm of Recoidmg Jurisdacnon!
LOT 26, BLOCK 6, ISLES AT WESTON, ACCORDING TO THE PLAT THEREOF,
RECORDED IN PLAT BOOK 171, PAGE (S) 40-56, OF THE PUBLIC RECORDS OF
BROWARD COUNTY, FLORIDA
19440STONEBROOKSTREET which cunently has the address of
WESTON . Fh>rnia 33332 rProperty Address"): Icuyl F/4 úM
TOGETHER WITH all the improvements now or hereafter erected on
the property, and all casements, appurtenances, and fixtures now or
hereafter a part of the property. All replacements and additions
shall also be covered by this Security instrument. All of the
foregoing is referred to in this Security Instrument as the
"Property
FLORi1MÄingle innsDy Fannie Mue/Freddle Ms UNRFORM INSTR| FMENT
orX)4s9364.7 Forza .7010 1892
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BORROWER COVENANTS that Borrower is lawfulk seised of the estate
hereby conveyed and has the nghi to umrtgage. grant and convey the
Property and that the Properry is imencmnhered. excepi lor
enemnbrances of record Borrower warrauis and wiH defend pencrally
ihe hile io the Propery ayans wl clanns and demands. subjeci io any
encumbrances of record
THIS SbCURITY INSTRUMENT combines uniform covenants for na1ional
use and non-uniform covenants with Innned variations by
jurisdiction to constitute a uniform security instrument covermg
real property.
UNIFORM COVENANTS. Borrower and Lender covenant and aprec as
follows:
1. Payment of Principal, Interest, Escrow ltems, Prepayment
Charges, and Late Charges. Borrower shall pav when due the pr
ucipal of, and interest on. the debt evidenced b3 the Note and any
prepayment charges and late charges due
under the Note. Rorrower shall also pay funds for l¼crow ltems
pursuani to Seelion R Payments due under the Note and this
Securii> lustrumeni shall he made in ILS currency. However,
if any chech or other instrument received by Lender as payinent
under the Note or this Security Instrument is returned to Lender
unpajd, Lender may require that any or all
subsequent payments due under the Note and this Security
Instrument be made in one or more of the following forms, as
selected hv Lender: (a) cash: (b) money order: cc) certified
check, bank check, treasurer's check or cashier's check. provided
any such check is drawn upon an insinntion whose deposits are
insured by a federal agency. instrumentality. or entity; or id)
Electronic Funds Transfer .
Payments are deemed received by Lender when received at the
location designated in the Note or at such othei k3canon as may he
designaled by Lender in accordance with the notice provisions in
Seenon 15. Lender may return any paymeni or partial payment if the
payment or partial payments are msulTicicm to brmg the Loan
enrrent. Lender may accept any payment
or panial payment msufhcient to bring the 1.oan curreni. withoin
wmver of any rights hereunder or prejudice to as rights to
refuse such payment or partial payments m the future. but Lender
is not obhpated in apply such payments at the inne such payments
are accepted. If each Periodic payment is applied as of us
scheduled due date. then Lender need not pay micrcsi on unapplied
funds. Lender may hold such unapplied funds until Rorrower makes
payment to brmy the Loxu current. If
Borrower does not do so wnhin a reasonable period of inne,
Lender shall eaber apply such funds or return them to Rorrower. If
no1 applied earlier, such funds will he applied to the ouis1anding
principal balance under the Note nmnediately prior to
foreclosure. No offsei or claim which Borrower might have now or
in the inture agains1 Lender shall reheve Borrower from
making payments due undet the Note and this Security Instrument
or perfomung the covenants and apeements secured by this Security
lustnunent.
2. Application of Payments or Proceeds. Incep1 as otherwise
described in this Section 2, all payments accepted and applied by
Lender shall he applied m the following order ol priority; (a)
interest due nuder the Note: (b) principal due
under the Note: ic) amounts due under Section 4 Swh payments
shall be applied to each Periodic Pnynicnt in the orden in wluch n
becenne due. Any remaintug amounts shall be applied first to late
charges, second to any other announts due under this Sceuruy
instrument, and then to reduce the principal balance of the
Note.
If Lender receives a payment from Borrower for a delinqueni
Periodic Payment which includes a sullicien1 amoum in
pay any late charge due, the payment may be applied to the
dehnquent payment and the late charge. If more than oise Periodic
Payment is outstanding, Lender may apply any payment received from
Borrowei to the repayment of the Periodic Payments
i . and to the exteni that, each payment can be paid in full. To
the ex tent that any excess exists aftei the payment is applied to
t i payment of one or more Periodic payments, such excess may be
applied to any late charges due. Volumaryprepayments shall be
applied first to any prepayment charges and then as described in
the Noie.
Any application of payments. msurance proceeds. or Mmeellancons
Proceeds to principal due under the Note shall extend or postpone
the due dale, or change the amount. of the Periodic Payments
3. Funds for Escrow Items. Borrower shall >ay to L i | | 3 .
>until the Note is paid in full, a sum ithe "Fun is" 1 em er on
i ie c ay I crioda I ayments are due unden the Note,
other items which can attain priority over this S ur t h n e
nent ol amounts due for: (a) taxes and assessnients and payments or
ground rents on the Property if a - ( a ien or encumbrance on the
Property; (b) leasehold and (d) Mortgage Insurance premiums if n3;
el premiums for any and all msurance required by Lender under
Section 5:
Mortgage Insurance premiums in accordane th tfimy surns payable
by Borrower to Lcnder m lieu of the payment of origination or at
any time durine the term of the L ie pr sions of Seehon 10. These
iicm3 are called "Escrow Items." Ai
Assessments, if any, he escrowed by Borrower ancl orm ender may
require that connnnnity Association Dues. Fees. and
promptly furnish to Lender all notices of tunoti sue i dues,
fees and assessments shall be an Eserow Item. Borrower shall nts io
be paid under this Section. Borrower shall pay Lender the Funds
for
FLORIDA.-Singk Family_. Fannie Mae/Freddle Mac UNIFORM INSTR I
rMENT ITEM misucou!U MFFL3112 000458364-7 FormJoloIA)1
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Fscrow licms unless I ender waives Borrower s obbgation to pay
the Funds for mn or ali incrow heno. I.ende, may g mve
Borrower's ohhganon to pay to Lendet Funds for any or all Escrow
licms at any tinic. Any such wmer may onl3 be in writmp in the
cient of such waiver. Borrower shall pay directly, when and where
payable. the amoums due for anv Escrou
hems foi which payment of Funds has been waited by Lender and.
if Lender requires, shall furnish to Lendes receipis evidenemy such
payment withm such time periotl as lander may require. Borrower's
obligation to make such payments and
to provide receipts shall f or all purposes be deemed to be a
covenant and agreement contained in ibis Seenrity Instrument. as
the phrase "covenant and agreemen1" is nsed m Seen»n 9 If Borrower
is obhgated to pay Escrow items directly. puisuant to a waivet and
Borrower fails to pay the amoum due for an Eserow item. Lender ma3
cxercise its rights under Section 9 and
pay such amount and Borrower shall then he obligated tmder
Secuon 9 to repay to Lender any such amount. Lender nmy rev oke the
waiver us to any or aH Esenm hems at an> time by a nonce given
in accordance with Section 15 and. upon such
revocation. Horrower shall pay to Lendcr all 1-nnds and m such
iunoonts that are ilien required under this Seeiion 3. hender may,
at any time, collect and hold Funds m an amouni ta) suffiaent to
pennit Lender to up ly the Funds at the
tinie speedied umler RliSPA. and (b d 11 i noi to excee le
maximinn amount a lender can require under RESPA. Lender shall
estimate the amount of Funds due on the basis of current data
and reasonable estimates of expenditures of future Escrow hems on
otherwise in accordance with Applicable Law.
1he Funds shall be held in an institulion whose deposits are
insured h3 a federal agency, instrinnentality, or enliti (mc u
ingFLender, if I.ender is an instunhon whose deposib in so insured)
or in any Federal Honie Loan Bank. 1 ender shalÍ app 3 e mids to
pay the Escrow items no laser than the time specified under RESPA.
Lemier shall not charge Borrower for holdmg and applymg the F.nnds.
annually analy4mg the escrow account. or ventying the F.scrow
Items. miless Lender pays
Borrower mierest on the l'unds ami Applicable 1.au pernnts
Lender to nutke such a charge. (Inless an agreement is made in
wnling or Applicable I,aw requires interest to be paid on the
Funds. Leialer shall noi be required to pav Borrower an) tuterest
or earnmgs on the I-tmds. Borrower and Lender can agree in wrning,
however, ihal niterest shall be paid on the Funds Lender shall give
to Borrower, without charge, an annual accounting of the Funds as
reipureel by RESPA.
If there is a surphis of Funds held in escrow. as defined under
RESPA, Lcnder shall account to Borrower for the excess innds m
accordance with RESPA. If there is a shortage of Funds held m
escrow. as clefined tinder RESPA, Lender shall notify Bonower as
required by RESPA. and Borrower shall pay to Lender the amount
necessary to make up the shorta e in accor
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I require Borrower to pay in connection with this 1 oan, either:
(a) a one-tmie charge for flood zone detennntation.
cerufication and uackum services· or íbi a onedime charge for
flood wne delenmnauon and cernítcanon services and subsequent
charges each inne rernappings or sunilar changes ocem which
reasonably might affect such detennmanon or certificauon, Borrower
shall also be responsible for lhe payment of im) fees nnposed by
the Federal Emergency Managemem
Agency in conuccoon with the reuew of any dood zone deternunauon
resuliing from an ohjeerion by Borrower
If Borrower 1mis to umintain any oj ihe coverages described
abme, 1,ender may oNam insurance coverayc. ai Lender option and
Borrower's expense. Lendet is undei no ohhymion lo pmebase any
partienhir type or amount of coverage
I Therefore such coverage shall cover Lender. but unght or miWo
noi proieet Bonouer, Horrower's e
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disburse proceeds for the repairs and restoration m a sm )
conipleted If the insurance or conderunation 3rocce i y e payment
or in a .,enes of promss paynients as the work is relieved of
Borrower's obhpainon f or the comp erron of . n m restore the
Property, Borrower is not
Lender or ns ageni may make reasonable entries upon and
inspecnons of the Property . If it has reasonahie cause. Lender nwy
inspect the intenor of the unprmements on the Property. Lender shWI
pve Borrowei notice at the tiene of or prior to such an interior
mspection specilymp such reasonable cause.
8. Borrower's Loan Application. Huronver shall be in ddanit d.
durmy the Loan application process, Borrower or any persons or
eninres acimg at the direction of Borrower or wilh Borrower s
knowledge or consent gave materially talse,
un ng, or inaccurate information on statements to Lender (or
failed to promle Lender with material inforniation) in connection
with the Luan. Material representauous incinde. hoi are not hunted
in. representations concerning Borrower occupancy of the Property
as Borrower's prmeipal residence.
9. Protection of Lender's Interest in the Property and Rights
Under this Security Instrument. If w Borrower fails in perform the
covenants and agreements contained in this Security Instrument. (b)
theie i>. a legal proceedmp thal might siginficantly affect
Lender's mierest in ihe Property mid/or r ights under ilus Seeunty
insirnment asuch as a proceeding m bankruptcy probate. for
condenmation or forfeiture. for enforcenient of a lien which may
attain priority over this Security Instrument or to enfurec laws or
regulations), or (c) Bormwer has abandoned the Property, then
Lender niay do and pay for
whatever is reasonable or appropriate to protect Ixnder's
interesi in the Properly and rights under this Security lustrument,
inelnding protecting and/or assessing the value of the Propert),
and securing and/or repairing the Property. Lender's actions can
include, but are not hmited in: (a) paying any sunis secured by a
ben which Ims priority over uns Security lustrument: (h3 appearing
in court; and ici paying reasonable atiorneys' fees to protect its
interest in the Property and/or rights under this Scenrily
Instrument. including its secured position in a bankruptcy
proceedmg. Seenring the Property includes, but is not liinited to.
entering the Property to make repairs, change locks, replace or
boant up doors and windows. drain water from pipes, cliniinate
building or other code violations or dangerons conditions, and have
utilities turned on or off. Although Lender may take action under
this Section 9. Lender does not have to do so imd is not under any
duty or obligation to do so.
It is agreed that Lender incurs no liability for not taking any
or all neiions mahorved under this Section 9. Any ainonnis
disbursed by Lendei under tlus Section 9 shall become additional
debt of Borrower secured by this
Security Instrument. These amoums shall hear interest at the
Note rate from the date of disbursement and shall be payable. with
such mierest, upon notice from Lender to Borrower requesting
payment.
If this Security lustrunnent is on a leasehold, Bormwer shall
comply w ith all the provisions of the lease. If Borrower acquires
fee title to the Properiy, the leasehold and the fee title shall
not merge unless Lender aprecs to the tuerger in writmg
10. Mortgage Insurance. If Lender required Mortgage Insurance as
a condinon of making the Loan, Borrower shall pay the prennums
required to maintain the Mortgage Insurance in efleet. If, f or any
r eason, the Mortgage Insurance coverage
required by Lender ceases to be available froin the mortgage
insurer ihat previously provided such insurance and Borrower was
required to make separately designated payments toward the prennums
f or Mortpage insurance, Borrower shall pay the
premiums required to obtain coverage substantially equisalent to
the Morigare insurance previously in effect at a cost substantially
equivalent to the cost to Borrower of the Mortgage Insurmwe
previondy m ef fect. from an alternate mortgage insurer selected by
Lender. If substantially eqinvalent Mortgage insurance m eiage is
noi mailabic. Borrowei shall continue to pay to Lender the amount
of the separately designated pay nients that were due when the
msurance coverage ceased to be m effect. Lender will accept, use
and retain these payments as a non-refundable loss reserve in lieu
of Mortgapc Insurance. Sneh loss reserve shall be non-refundable,
notwithstanding the fact that the Loan is uhimately paid in full,
and Lender shall not be required to pay Borrower any interest or
earnings on such loss reserve. Lender can no longer regnire loss
reserve payments if Mortgage lusurance coverage (in the amotml and
for the period that Lender requires) provided by an insurer
selected by Lender again becomes available. is obtained. and Lender
requires separately designated payments toward the prennoms for
Mortgage hisurance. If Lender required Mortgage hisurance as a
condition of making the Loan and Borrower was required to make
separately designated payments toward the premiums for Mortgage
lusurance, Borrower shall pay the premituns required to maintain
Mortgage insurance in effect or to provide a non-refundable loss
reserve, until Lender's reymrement for
Mortgage Insurance ends in accordance with any written agreement
between Horrower and Lender providing for such termination or until
termination is required by Applicable Law. Nothing in this Section
10 affects Borrower's obligation to pay interest at the rate
provided m the Note.
Mortgage insurance reimburses Lender (or any entity that
purchases the Note) for certain losses it may inent if
Borrower does not repay the Loan as agreed. Borrower is not a
party to the Mortgage Insurance.
FLORIDA-Jinrle Fmmly - Fannie Mae/FreddieMac UNIFORM INSTRUMENT
000458304.7 Form 3010 1101
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Mortgage insurers evaluate their total risk on :dl such
nisurance in loice from time to tmie. and nuá enter mio agreensents
with other parties that share or tuodify their risk or reduce
losses These agreenents are 01. Terms and conditions tha1 are
satisfactory to the inortgage insurer and the other party (or
parhes) to these agreements. These agreements may
I require the mortgage insurer to make payments using any source
of lands ihat the mortgage insurer tuay have .oailahk iwhich may
inchide funds obtained from Moriginge liisurrtuce piciniurnu
As a result of these agreenients. Lender. any purchaser of the
Note. :uiother insurer. any reinsurer. any othei ennly. or any
aftthate of any of the foregoing, may receive (directly or
indirectly 1 amounts that derive from (or imght he character
zed
I asi a portion of Borrower's payments for Mortgage lnsurance.
in exchange for sharing or modifying the mortgage insurer's risk,
or rethicing losses. If such agreement provides that an alTiliate
of Lender takes a share of the insurer's risk in exchange for a
share of the premiums paid to the msurer. the arrangement is often
ter ned "captive reinsurance " Further:
(a) Any such agreements will not affect the amounts that
Borrower has agreed to pay for Mortgage Insurance, I .or any other
terms of the Loan. Such agreements will not increase the amount
Borrower will owe for Mortgage
Insurance, and they will not entitle Borrower to any refund. (b)
Any such agreements will not affect the rights florrower has-if
any-with respect to the Mortgage
Insurance under the Homeowners Protection Act of 1998 or any
other law. These rights may include the right to i receive certain
disclosures, to request and obtain cancellation of the Mortgage
Insurance, to have the Mortgage
Insurance terminated automatically, and/or to receive a refund
of any Mortgage Insurance premiums that were unearned at the time
ofsuch cancellation or termination.
11. Assignment of Miscellaneous Proceeds; Forfeiture. All
MisceHaneous Proceeds are hereby assigned to and shaH
be paid in Lender. It' the Property is danmged, such
Miscellaneous Proceeds shall be atylied to rotoranon or repak d the
Property. d the
restoration or repair is econonucally feasible and 1.ender's
security is not lessened. During such repair and restoration
period. Lender shall have the right to hold such Miscelhmeous
Proceeds until Lender has had an opportunity to inspect such
Properly
to ensure the work has been completed to Lender's sausfaction,
provided that such inspection shall be undertaken promptly. I
Lender may pay for the repairs and restoration in a single
disbursement or m a series of progress payments as the work is
completed. Unless an agreement is made in writing or Applicable
1.aw requires intelest to be paid ou such Miscellaneous Proceeds,
Lender shall not he required to pay Borrower any unerest or
earnings on such Miscellaneous Proceeds. If the
restoration or repair is not economically feasible or Lender1
security would be lessened, the Miscellaneous Proceeds shall be
applied to the sums secured by this Security Instrument, wheiher or
not then due, with the excess, il any, paid to Borrower
Such Misecllaneous Proceeds shall be applied in the ordei
provided f or in Seeihm ?. lu the event of a total taking,
destruction, or loss in i alue of the Propern. the Miscellaneous
Proceeds shall he applied to
the sums secured by this Security Instrument, whether or not
then due. with the excess. if any, paid to Borrower.