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Supplemental Directive 09-09 Introduction of Home Affordable
Foreclosure Alternatives – Short 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, the servicers apply
a uniform loan modification process to provide eligible borrowers with sustainable monthly payments for their
first lien mortgage loans. While HAMP program guidelines are intended to reach a broad range of
at-risk borrowers, it is expected that servicers will encounter
situations where they are unable to approve a HAMP modification request, a HAMP modification is offered and not accepted
by the borrower, or the borrower falls out of a HAMP modification. In these instances, the
borrower may benefit from an alternative that helps the borrower transition to more
affordable housing and avoid the stigma of a foreclosure. This Supplemental Directive provides guidance to servicers for adoption and implementation of the Home Affordable Foreclosure Alternatives Program (HAFA). HAFA
is part of HAMP and provides financial incentives to servicers
and borrowers who utilize a short sale or a deed-in-lieu to avoid a foreclosure on an eligible loan under HAMP. Both of
these foreclosure alternatives reduce the need for potentially lengthy and expensive foreclosure
proceedings. The options help preserve the condition and value of the property by minimizing the
time a property is vacant and subject to vandalism and deterioration. In addition, these options
generally provide a substantially better outcome than a foreclosure sale for
borrowers, investors and communities. This Supplemental Directive provides guidance to servicers for adoption and implementation of HAFA for first lien mortgage loans that are not owned or
guaranteed by Fannie Mae or Freddie Mac (Non-GSE Mortgages). In order for a servicer
to participate in HAFA for Non-GSE Mortgages, the servicer must execute a servicer participation agreement and related documents (SPA) with Fannie Mae in its capacity as financial agent for the Treasury) to participate in HAMP on or before Supplemental Directive 09-01 requires participating servicers to consider borrowers for other foreclosure prevention options, including short sale and
deed-in-lieu programs. As a result, servicers already
participating in HAMP must follow the guidance set forth in this Supplemental Directive, which provides servicers with
the option to determine the extent to which short sales or deeds-in-lieu will be offered under this program. Servicers of mortgage loans that are owned or guaranteed by Fannie Mae or Freddie Mac should refer to the
HAFA announcement issued by Supplemental Directive 09-09 Page 2 the applicable GSE. A loan must be HAMP eligible and meet the
other requirements stated herein to be eligible for incentive compensation under HAFA. The effective date of this Supplemental Directive is implement HAFA prior to all required information as described in the Reporting Requirements section
of this Supplemental Directive. Borrowers may be accepted into HAFA if a Short Sale
Agreement or DIL Agreement, as described in this Supplemental Directive, is fully-executed by
the borrower and received by the servicer on or before To help servicers implement HAFA, this
Supplemental Directive covers the following topics: Foreclosure Alternatives HAFA Consideration Evaluation Short Sale Deed-in-Lieu General Terms and Conditions Incentive Compensation Standard Form Documents Reporting Requirements Compliance Foreclosure Alternatives In a short sale, the servicer allows the
borrower to list and sell the mortgaged property with the understanding that the net proceeds from the sale may be less than
the total amount due on the mortgage. The short sale must be an arm’s length transaction with
the net sale proceeds (after deductions for reasonable and customary selling costs) being
applied to a discounted (“short”) mortgage payoff acceptable to the servicer.
The servicer accepts the short payoff in full satisfaction of the total amount due on the first mortgage. In a deed-in-lieu of foreclosure (DIL), the borrower voluntarily
transfers ownership of the mortgaged property to the servicer in
full satisfaction of the total amount due on the first mortgage. The servicer’s willingness to
approve and accept a DIL is contingent upon the borrower’s ability to provide marketable title, free and clear of
mortgages, liens and encumbrances. Generally, servicers
require the borrower to make a good faith effort to sell the property through a short sale before agreeing to accept the DIL.
However, under circumstances acceptable to the investor, the servicer
may accept a DIL without the borrower first attempting to sell the property. With either the HAFA short sale or DIL, the servicer may not require a cash contribution or promissory note from the borrower and must forfeit
the ability to pursue a deficiency judgment against the borrower. Short sales and DILs are complex
transactions involving coordination and cooperation among a number of parties including, but not limited to, servicers, appraisers, borrowers (sellers), buyers, real estate brokers and agents, title agencies, and often mortgage
insurance companies and Supplemental Directive 09-09 Page 3 subordinate and other lien holders. The HAFA program simplifies
and streamlines the use of short sales and DIL options by incorporating the following unique
features: Complements HAMP by providing viable alternatives for borrowers
who are HAMPeligible. Utilizes borrower financial and hardship information collected in
conjunction with HAMP, eliminating the need for additional eligibility analysis. Allows the borrower to receive pre-approved short sale terms prior
to the property listing. Prohibits the servicer from requiring,
as a condition of approving the short sale, a reduction in the real estate commission agreed upon in the listing
agreement. Requires that borrowers be fully released from future liability
for the debt. Uses standard processes, documents and timeframes. Provides financial incentives to borrowers, servicers
and investors. HAFA Consideration Each participating servicer must develop
a written policy, consistent with investor guidelines, that describes the basis on which the servicer
will offer the HAFA program to borrowers. This policy may incorporate such factors as the severity of the loss
involved, local market conditions, the timing of pending foreclosure actions and borrower motivation
and cooperation. Servicers must
evaluate a borrower for a HAMP modification prior to any consideration being given to HAFA options in accordance with the provisions of
Supplemental Directive 09-01 and any supplemental HAMP guidance. Borrowers that meet the
eligibility criteria for HAMP but who are not offered a Trial Period Plan, do not successfully
complete a Trial Period Plan, or default on a HAMP modification should first be considered for
other loan modification or retention programs offered by the servicer
prior to being evaluated for HAFA. In accordance with the provisions of Supplemental Directive 09-01,
a loan meets the basic eligibility criteria if all of the following conditions are met: The property is the borrower’s principal residence; The mortgage loan is a first lien mortgage originated on or before
The mortgage is delinquent or default is reasonably foreseeable; The current unpaid principal balance is equal to or less than
$729,7501; and The borrower’s total monthly mortgage payment (as defined in
Supplemental Directive 09-01) exceeds 31 percent of the borrower’s gross income. Pursuant to the servicer’s policy, every
potentially eligible borrower must be considered for HAFA before the borrower’s loan is referred to foreclosure or the servicer allows a pending 1 This amount refers to 1
unit properties. Higher amounts apply to 2 to 4 unit dwellings. See Supplemental Directive 09-01. Supplemental Directive 09-09 Page 4 foreclosure sale to be conducted. Servicers
must consider possible HAMP eligible borrowers for HAFA within 30 calendar days of the date the borrower: Does not qualify for a Trial Period Plan; Does not successfully complete a Trial Period Plan; Is delinquent on a HAMP modification by missing at least two
consecutive payments; or Requests a short sale or DIL. The date and outcome of the HAFA consideration must be documented
in the servicer’s file. Evaluation If the servicer determines that a
borrower is eligible for a HAFA offer based on its written policy and this Supplemental Directive, the servicer
must follow the steps below to determine if a short sale or DIL offer will be extended to the borrower. Borrower Solicitation and Response. If the servicer has not already
discussed a short sale or DIL with the borrower, the servicer must
proactively notify the borrower in writing of the availability of these options and allow the borrower 14 calendar
days from the date of the notification to contact the servicer by
verbal or written communication and request consideration under HAFA. If the borrower fails to contact the servicer within the timeframe or at any time indicates that he or she is not interested in these options, the servicer has no further obligation to extend a HAFA offer. Expected Recovery through Foreclosure and Disposition. Though not a HAFA requirement, it is expected that servicers will, in
accordance with investor guidelines, perform a financial analysis to determine if a short sale or DIL is in the best
interest of the investor, guarantor and/or mortgage insurer. The results of any analysis must be retained in
the servicing file. The HAMP base NPV model does not project investor cash flows from either a
short sale or DIL and should be used only to determine borrower eligibility for a HAMP
modification. Use of Borrower Financial Information. Verified borrower financial information obtained in conjunction with HAMP may be relied upon to determine a borrower’s
eligibility for HAFA. If financial and hardship information is documented and verified, no
additional financial or hardship assessment is required by HAFA. However, in accordance
with investor guidelines, the servicer may
request updated financial information to evaluate the borrower. If a borrower
was evaluated for HAMP based on verbal financial data, the servicer may send the borrower a Short Sale Agreement (SSA) and must require the borrower to deliver the
financial information required under HAMP when the borrower returns the executed SSA.
The servicer must verify a borrower’s financial information through documentation and obtain
a signed Hardship Affidavit prior to approving a short sale or accepting a DIL under HAFA. Property Valuation. The servicer must, independent of the borrower and any other
parties to the transaction, assess the current value of the property in
accordance with the investor’s guidelines. The servicer may not require
the borrower to pay in advance for the valuation, but Supplemental Directive 09-09 Page 5 may add the cost to the outstanding debt in accordance with the
borrower’s mortgage documents and applicable law in the event the short sale or DIL is not
completed. Review of Title. The servicer
must review readily available information provided by the borrower, the borrower’s credit report, the loan file or other
sources to identify subordinate liens and other claims on title to determine if the borrower will be
able to deliver clear, marketable title to a prospective purchaser or the investor. Although not
required by HAFA, the servicer may order a title search or preliminary title report. The servicer may not charge the borrower in advance for any cost incurred in the title review, but may add the
cost to the outstanding debt in accordance with the borrower’s mortgage documents and applicable
law in the event the short sale or DIL is not completed. Borrower Notice. When a HAFA short sale or
DIL is not available, the servicer must communicate this decision in writing to any borrower that
requested consideration. The notice must explain why a short sale or DIL under HAFA cannot be offered,
provide a toll free telephone number that the customer may call to discuss the
decision and otherwise comply with the notice requirements of Supplemental Directive 09-08, Borrower Notices. Short Sale The HAFA short sale process employs standard form documents and defined
performance timeframes to facilitate clear communication between the parties
to the listing and sale transaction. Servicers must adhere to
the following guidelines in connection with the issuance of an SSA. Minimum Acceptable Net Proceeds. Prior to approving a borrower to participate in a HAFA short sale, the servicer must determine
the minimum acceptable net proceeds (minimum net) that the investor will accept from the transaction. Each servicer must develop a written policy, consistent with investor guidelines, that describes the basis on
which the minimum net will be determined. This policy may incorporate such factors as local
market conditions, customary transactional costs of such sales, and the amounts that may be
required to release any subordinate liens on the property. A servicer’s
policy for determining the minimum net must be consistently applied for all loans serviced for that investor. The minimum net
may be expressed as a fixed dollar amount, as a percentage of the current market value of the
property, or as a percentage of the list price as approved by the servicer.
Once determined, the servicer must document the minimum net in the servicing file for each property subject to
HAFA. After signing an SSA, the servicer may not
increase the minimum net requirement until the initial SSA termination date is reached (not less than 120 calendar days). Subsequent changes to
the minimum net when the SSA is extended must be documented. Allowable Transaction Costs. In determining the minimum net, the servicer
must consider reasonable and customary real estate transaction costs for the
community in which the property is located and determine which of these costs the servicer
or investor is willing to pay from sale proceeds. The servicer must describe the
costs that may be deducted from the gross sale proceeds in the SSA. Supplemental Directive 09-09 Page 6 Short Sale Agreement. The HAFA
SSA, outlines the roles and responsibilities of the servicer and
borrower in the short sale listing process and provides key marketing terms, such as a list price or acceptable sale proceeds
and the duration of the SSA. The HAFA Request for Approval of a Short Sale (RASS), which must
accompany the SSA, is attached as Exhibit A1. The RASS is submitted to the servicer when an offer is received to provide the terms and conditions of the short sale and together
with the sales contract, provides settlement instructions to the settlement agent. Either
proactively, or at the request of an eligible borrower, the servicer will prepare and
send an SSA to the borrower after determining that the proposed sale is in the best interest of the investor. The servicer will also provide the borrower a RASS, pre-populated with contact information for the servicer, the property address and the loan number. In the event that a borrower has an executed sales contract and
requests the servicer to approve a short sale under HAFA before an SSA has been executed, the servicer must evaluate the borrower for HAFA as described in this Supplemental Directive and
must utilize the Alternative Request for Approval of a Short Sale (Alternative RASS). While servicers may amend the terms of
the SSA in accordance with investor requirements, applicable laws or local real estate practice, at a minimum the
SSA must include the following: A fixed termination date not less than 120 calendar days from the
effective date of the SSA (“Effective Date”). The Effective Date must be stated in the
SSA and is the date the SSA is mailed to the borrower. The term of the SSA may be extended
at the discretion of the servicer up to a total term of 12
months, in accordance with the requirements of the investor. A requirement that the property be listed with a licensed real
estate professional who is regularly doing business in the community where the property is
located. Either a list price approved by the servicer
or the acceptable sale proceeds, expressed as a net amount after subtracting allowable costs that the servicer will accept from the transaction. The amount of closing costs or other expenses the servicer will permit to be deducted from the gross sale proceeds expressed as a dollar amount, a
percentage of the list price or a list by category of reasonable closing costs and other
expenses that the servicer will permit to be deducted from the gross sale proceeds. The amount of the real estate commission that may be paid, not to
exceed 6% of the contract sales price, and notification if any portion of the
commission must be paid to a contractor of the servicer that has been
retained to assist the listing broker with the transaction. A statement by the borrower authorizing the servicer
to communicate the borrower’s personal financial information to other parties (including
Treasury and its agents) as necessary to complete the transaction. Cancellation and contingency clauses that must be included in
listing and sale agreements notifying prospective purchasers that the sale is subject to
approval by the servicer and/or third parties. Supplemental Directive 09-09 Page 7 Notice that the sale must represent an arm’s length transaction
and that the purchaser may not sell the property within 90 calendar days of closing,
including certification language regarding the arm’s length transaction that must be included in
the sales contract. An agreement that upon successful closing of a short sale
acceptable to the servicer, the borrower will be released from all liability for repayment of the
first mortgage debt. An agreement that upon successful closing of a short sale
acceptable to the servicer the borrower will be entitled to a relocation incentive of $1,500,
which will be deducted from the gross sale proceeds at closing. Notice that the servicer will allow a
portion of gross sale proceeds to be paid to subordinate lien holders in exchange for release and full
satisfaction of their liens. Notice that a short sale may have income tax consequences and/or
may have a derogatory impact on the borrower’s credit score and a recommendation that
the borrower seek professional advice regarding these matters. The amount of the monthly mortgage payment, if any, that the
borrower will be required to pay during the term of the SSA, which amount must not exceed
31% of the borrower’s gross monthly income. An agreement that so long as the borrower performs in accordance
with the terms of the SSA, the servicer will not complete a
foreclosure sale. Terms under which the SSA can be terminated. Borrower Obligations. The
borrower must sign and return the SSA within 14 calendar days from its Effective Date along with a copy of the real estate
broker listing agreement and information regarding any subordinate liens. In returning and
signing the SSA the borrower agrees to: Provide all information and sign documents required to verify
program eligibility. Cooperate with the listing broker to actively market the property
and respond to servicer inquiries. Maintain the interior and exterior of the property in a manner
that facilitates marketability. Work to clear any liens or other impediments to title that would
prevent conveyance. Make the monthly payment stipulated in the SSA, if applicable. Monitoring Marketing Activity / Cause for Termination. During the term of the SSA, the servicer may
terminate the SSA before its expiration due to any of the following events: The borrower’s financial situation improves significantly, the
borrower qualifies for a modification, or the borrower brings the account current or pays
the mortgage in full. The borrower or the listing broker fails to act in good faith in
listing, marketing and/or closing the sale, or otherwise fails to abide by the terms of the
SSA. A significant change occurs to the property condition and/or
value. There is evidence of fraud or misrepresentation. The borrower files for bankruptcy and the Bankruptcy Court declines
to approve the SSA. Supplemental Directive 09-09 Page 8 Litigation is initiated or threatened that could affect title to
the property or interfere with a valid conveyance. The borrower fails to make the monthly payment stipulated in the
SSA, if applicable. Request for Approval of Short Sale. Within three business days following receipt of an executed purchase offer, the borrower or the listing broker must
deliver to the servicer a completed RASS describing the terms of the sale transaction. With
the RASS, the borrower must submit to the servicer: A copy of the executed sales contract and all addenda. Buyer’s documentation of funds or buyer’s pre-approval or
commitment letter on letterhead from a lender. All information regarding the status of subordinate liens and/or
negotiations with subordinate lien holders. Approval or Disapproval of required attachments, the servicer must
indicate its approval or disapproval of the proposed sale by signing the appropriate section of the RASS and mailing it to
the borrower. The servicer must approve a RASS if the
net sale proceeds available for payment to the servicer equal or exceed the minimum net determined by the servicer prior to the execution or extension of the SSA and all other sales terms and conditions in the SSA
have been met. Additionally, the servicer may not
require, as a condition of approving a short sale, a reduction in the real
estate commission below the commission stated in the SSA. The servicer may require that the sale
closing take place within a reasonable period following acceptance of the RASS, but in no event may the servicer require that a transaction close in less than 45 calendar days from the date of the sales contract without
the consent of the borrower. Alternative Request for Approval of Short Sale. If the borrower has an executed sales contract and requests the servicer to
approve a short sale under HAFA before an SSA has been executed, then the borrower must submit the request to the servicer in the form of the Alternative Request for Approval of Short Sale (Alternative RASS), attached as
Exhibit B. Upon receipt of the Alternative RASS, the servicer must
determine the basic eligibility of the borrower as described in the HAFA
Consideration section of this Supplemental Directive. If the
borrower appears to be eligible and was not previously considered for a
Trial Period Plan, the servicer must notify the borrower verbally or in writing of the
availability of a HAMP modification and allow the borrower 14 calendar days from the date of the
notification to contact the servicer by verbal or written communication and request consideration for a
HAMP modification. In addition, the servicer must verify the
borrower’s financial information through documentation and obtain a signed Hardship Affidavit from the borrower prior to
approving the short sale. If the borrower does not wish to be considered for a modification,
the servicer may consider the Alternative RASS in accordance with this Supplemental Directive
without first having to enter into an SSA with the borrower. If the servicer
approves the short sale, then the loan will qualify for the HAFA program. A borrower may not participate in a HAMP
Trial Period Plan and agree Supplemental Directive 09-09 Page 9 to a HAFA SSA simultaneously. In addition, the servicer
must collect and report the information required under Supplemental Directive 09-06 prior to reporting any
HAFA information required by this Supplemental Directive. Deed-in-Lieu In accordance with investor requirements, servicers
have the discretion to accept a HAFA DIL, which requires a full release of the debt and waiver of all claims
against the borrower. The borrower must agree to vacate the property by a date certain,
leave the property in broom clean condition and deliver clear, marketable title. Typically, servicers require that the
borrower make a good faith effort to list and market the property before the servicer will agree
to accept a DIL. Under circumstances acceptable to the investor, servicers may agree to accept
a DIL without requiring a marketing period. In either circumstance, the transaction will be eligible for incentives as
described in the Incentive Compensation section of this
Supplemental Directive if the borrower meets the HAFA eligibility criteria. SSA. The SSA contains optional
DIL language that may be included or deleted by the servicer prior to execution of the SSA. If the DIL language is included,
the investor is obligated to accept a DIL in accordance with the terms of the SSA if the term of the
SSA expires without resulting in a sale of the property. If the servicer
offers the DIL option separately from the SSA or without a marketing period, the servicer must
provide the Deed-in-Lieu Agreement form (“DIL Agreement”), attached as Exhibit C. DIL Terms. The following terms apply
to a HAFA DIL: Marketable Title. The borrower must be able
to convey clear, marketable title to the servicer or
investor. The requirements for extinguishment of subordinate liens as described in the Release of
Subordinate Liens section of this
Supplemental Directive apply to DIL transactions. Written Agreement. The conditions for
acceptance of a DIL must be in writing and signed by both the servicer and
borrower. They may be set forth in the SSA if approved with the short sale, or in the DIL Agreement. Vacancy Date. The SSA or DIL Agreement
must specify the date by which the borrower must vacate the property, which in no event shall be less than 30
calendar days from the date of the termination date of the SSA or the date of a separate
DIL Agreement, unless the borrower voluntarily agrees to an earlier date. Relocation Assistance.
Borrowers who participate in a HAFA DIL transaction are eligible for $1,500 in relocation assistance as described in the Incentive Compensation section of this Supplemental Directive. Supplemental Directive 09-09 Page 10 General Terms and Conditions Suspension of Foreclosure Sales. At the servicer’s discretion, the servicer may initiate foreclosure or continue with an existing foreclosure proceeding
during the HAFA process, but may not complete a foreclosure sale: While determining the borrower’s eligibility and qualification for
HAMP or HAFA. While awaiting the timely return of a fully executed SSA. During the term of a fully executed SSA. Pending transfer of property ownership based on an approved sales
contract per the RASS or Alternative RASS. Pending transfer of property ownership via a DIL by the date
specified in the SSA or DIL Agreement. Payment Forbearance. The servicer will identify in the SSA, Alternative RASS or DIL Agreement the amount of the monthly mortgage payment, if any, that
the borrower is required to make during the term of the applicable agreement and pending
transfer of property ownership, as applicable. In no event may the amount of the borrower’s monthly
payment exceed the equivalent of 31% of the borrower’s gross monthly income. Servicers must develop a written policy in accordance with investor requirements that identifies
the circumstances under which they will require monthly payments and how that payment will be
determined. Any requirement for the borrower to make monthly payments must be in accordance
with applicable laws, rules and regulations. Release of Subordinate Liens. It is the responsibility of the borrower to deliver clear marketable title to the purchaser or investor and to work with the
listing broker, settlement agent and/or lien holders to clear title impediments. The servicer may, but is not required to, negotiate with subordinate lien holders on behalf of the borrower. The servicer, on behalf of the investor, will authorize the settlement agent to allow up to an aggregate of
$3,000 of the gross sale proceeds as payment(s) to subordinate mortgage/lien holder(s) in
exchange for a lien release and full release of borrower liability. Each lien holder, in order of
priority, may be paid three percent (3%) of the unpaid principal balance of their loan, until the
$3,000 aggregate cap is reached. Payments will be made at closing from the gross sale proceeds and
must be reflected on the HUD-1 Settlement Statement. Investors are eligible for incentive
reimbursement for up to onethird of the cost to extinguish subordinate liens as described in the Incentive Compensation section of this Supplemental Directive. Release of First Mortgage Lien. The servicer must release its first
mortgage lien within ten business days (or earlier if required by state or local laws)
after receipt of sale proceeds from a short sale or delivery of the deed and property in a DIL
transaction. Additionally, the investor must waive all rights to seek a deficiency judgment and may not
require the borrower to sign a promissory note for the deficiency. Borrower Fees. Servicers may not charge the
borrower any administrative processing fees in connection with HAFA. The servicer must
pay all out-of-pocket expenses, including but not limited to notary fees, recordation fees, release fees, title
costs, property valuation fees, credit Supplemental Directive 09-09 Page 11 report fees, or other allowable and documented expenses, but the servicer may add these costs to the outstanding debt in accordance with borrower’s mortgage
documents and applicable laws in the event the short sale or DIL is not completed. Servicers may require borrowers to waive reimbursement of any remaining escrow, buy down funds or prepaid
items, and assign any insurance proceeds to the investor, if applicable. Those funds
will not be applied to reduce the total net proceeds from the sale. Mortgage Insurer Approval. For loans that have mortgage insurance coverage, the servicer/investor
must obtain mortgage insurer approval for HAFA foreclosure alternatives. A mortgage loan does not qualify for HAFA unless the mortgage
insurer waives any right to collect additional sums (cash contribution or a promissory note) from the
borrower. Incentive Compensation Treasury will provide reimbursements and incentives as set forth
below. However, no incentives will be paid to the borrower, servicer
or investor if the net proceeds from a sale exceed the total amount due on the first mortgage when title is transferred. The
amount of any contribution paid by a mortgage insurer or other provider of credit enhancement
shall not be considered in determining whether the mortgage was paid in full and whether servicers are eligible for such incentive compensation. Borrowers, servicers and investors will
be eligible for HAFA incentives upon successful completion of the short sale or DIL if an SSA, Alternative RASS or
DIL Agreement, as applicable, was executed on or before Treasury upon reporting the completed HAFA transaction as
described in the Reporting Requirements section of this
Supplemental Directive. For a short sale or DIL, incentives will be paid as follows: Borrower Relocation Assistance. Following the successful closing of a short sale or DIL, the borrower shall be entitled to an incentive payment of $1,500 to
assist with relocation expenses. In a short sale transaction, the servicer
must instruct the settlement agent to pay the borrower from sale proceeds at the same time that all other payments,
including the payoff to the servicer, are disbursed by the settlement agent. The amount paid to the
borrower must appear on the HUD-1 Settlement Statement. If the servicer conducts a formal
closing for a DIL transaction and the borrower has vacated the property, the borrower relocation incentive of $1,500 must be paid
at closing and reflected on the HUD-1 Settlement Statement. If at the time of closing the borrower
has not vacated the property, the servicer must mail a check
to the borrower within five business days of the borrower’s vacancy and delivery of keys to the servicer
or the servicer’s agent. Similarly, if the DIL transaction is not conducted as a formal closing, the servicer must mail a check to the borrower within five business days from the later of the borrower’s
execution of the deed or the borrower’s vacancy and delivery of keys to the servicer
or servicer’s agent. Supplemental Directive 09-09 Page 12 Servicers will be
reimbursed for the full amount of this incentive payment after the HAFA transaction is reported as described in Reporting Requirements section
of this Supplemental Directive. Servicer Incentive. The servicer
will be paid $1,000 to cover administrative and processing costs for a short sale or DIL completed in accordance with the
requirements of HAFA and the applicable documents. Investors may elect to pay additional
incentive compensation to servicers which will not affect the HAFA servicer
incentive. Investor Reimbursement for Subordinate Lien Releases. The investor will be paid a maximum of $1,000 for allowing a total of up to $3,000 in
short-sale proceeds to be distributed to subordinate lien holders, or for allowing payment of up to
$3,000 to subordinate lien holders. This reimbursement will be earned on a one-for-three matching
basis. For each three dollars an investor pays to secure release of a subordinate lien, the
investor will be entitled to one dollar of reimbursement. To receive an incentive, subordinate lien holders
must release their liens and waive all future claims against the borrower. The servicer is not responsible for any future actions or claims against the borrower by such subordinate lien
holders or creditors. Standard Form Documents Servicers are required
to use the HAFA documents attached to this Supplemental Directive substantially the form provided, except that the servicer may amend the terms of the SSA or DIL Agreement in accordance with investor requirements, applicable
laws or local real estate practice and may customize the forms with servicer
specific logos. Document Retention. Servicers must retain all documents
and information received during the process of determining borrower eligibility and qualification for
HAFA. For a period of seven years from the date of the document
collection, servicers must retain detailed records of borrower solicitations or borrower-initiated
inquiries regarding HAFA, the outcome of the evaluation for foreclosure alternatives under HAFA
and specific justification with supporting details if foreclosure alternatives were denied.
Records must also be retained to document the reasons for termination of the SSA or expiration of
HAFA transactions without a completed short sale or acceptance of a DIL. Signatures and Electronic Documents. All HAFA documentation must be signed by an authorized representative of the servicer
and reflect the actual date of signature by the servicer’s representative. Unless a borrower or co-borrower is deceased or a borrower and a
co-borrower are divorced, all parties who signed the original loan documents or their duly
authorized representatives must execute the HAFA documents. If a borrower and a co-borrower are
divorced and the property has been transferred to one spouse in the divorce decree, the
spouse who no longer has an interest in the property is not required to execute the HAFA
documents. Servicers may evaluate requests on a case-by-case basis when the borrower is unable to
sign due to circumstances such as mental incapacity or military deployment. Supplemental Directive 09-09 Page 13 Any party to a document utilized in HAFA may, subject to
applicable law and any investor requirements or restrictions, prepare, sign and send the document
through electronic means provided: (a) appropriate technology is used to store an authentic
record of the executed document and the technology otherwise ensures the security,
confidentiality and privacy of the transaction, (b) the document is enforceable under applicable law,
(c) the servicer obtains the borrower’s consent to use electronic means to enter into the
document, (d) the servicer ensures that the borrower is able to retain a copy of the document and
provides a copy to the borrower that the borrower may download, store and print, and (e) the
borrower, at any time, may elect to enter into the document through paper means or to receive a paper
copy of the document. Reporting Requirements As a condition to receiving the incentive payments offered through
HAFA, servicers are required to provide periodic HAFA loan level data to Fannie Mae, in its
capacity as program administrator. The data submitted must be accurate, complete,
timely, and agree with the servicer’s records.
Data will be reported by a servicer at key milestones
in the transaction: Notification – when the SSA or DIL
Agreement is signed and executed, or updated following an extension of the marketing terms; Short Sale/DIL Loan Set Up – at the transfer of property ownership (closing of a short sale or acceptance of DIL); and/or Termination – when the SSA or DIL
Agreement expires or when the SSA or DIL Agreement is terminated by the servicer. Each milestone is a separate data transmission and must be
reported no later than the fourth business day of the month following the event. The required data
elements are attached to this Supplemental Directive as Exhibit D. In addition, HAFA reporting
requirements will be posted on the servicer web portal at
www.hmpadmin.com. Note also that the reporting information required under Schedule I and Schedule IV of Supplemental
Directive 09-06 must be provided by the servicer for all HAFA
transactions, including those that occur prior to The HAFA reporting and payment processes are currently under
development by Fannie Mae, in its capacity as program administrator. Subsequent guidance will be
provided describing when the HAFA reporting and processes will be available. Servicers will not be required to report HAFA data until the reporting process is in place, but in this
interim period servicers must collect and store information on all HAFA transactions so that the
necessary data can be reported when the processes become available. In addition, HAFA incentives
will not be paid until the payment process is available; borrowers, servicers
and investors will be reimbursed for all incentives relating to HAFA transactions closed prior to the
reporting and payment processes becoming available. Credit Bureau Reporting. The servicer should continue to report a “full file” status to
the major credit repositories for each loan under the HAFA program in
accordance with the Fair Credit Reporting Act and the Consumer Data Industry Association’s
(“CDIA’s”) Metro 2 Format credit bureau requirements. “Full file” reporting means that the servicer must describe the exact Supplemental Directive 09-09 Page 14 status of each mortgage it is servicing as of the last business
day of each month. The Payment Rating code should be the code that properly identifies whether
the account is current or past due within the activity period being reported – prior to completion of
the HAFA transaction. Because CDIA’s Metro 2
format does not provide an Account Status Code allowable value for a short sale, a short sale should identified with the reporting of Special
Comment Code “AU”. The information below is consistent with “CDIA Mortgage and Home
Equity Reporting Guidelines in Response to Current Financial Conditions” (May 2009). Reporting should be as follows: Short Sales Account Status Code = 13 (paid or closed/zero balance) Payment Rating = 0, 1, 2, 3, 4, 5, or 6 Special Comment Code = AU (account paid in full for less than the
full balance) Current Balance = $0 Amount Past Due = $0 Date Closed = MMDDYYYY Date of Last Payment = MMDDYYYY Deed-in-Lieu Account Status Code = 89 (deed-in-lieu of foreclosure on a
defaulted loan) Payment Rating = 0, 1, 2, 3, 4, 5, or 6 Current Balance = $0 Amount Past Due = $0 Date Closed = MMDDYYYY Date of Last Payment = MMDDYYYY Compliance Servicers must
comply with the HAFA short sale and DIL requirements specified in this Supplemental Directive and any subsequent policy guidance. Servicers must have adequate staffing and resources for responding to borrower requests for
participation, for receiving and processing HAFA documents in accordance with program guidelines
and for ensuring that inquiries and complaints about HAFA receive fair consideration,
along with timely and appropriate response and resolution. Treasury has selected Freddie Mac to serve as its compliance agent
for HAFA. In its role as compliance agent, Freddie Mac will utilize Freddie Mac employees
and contractors to conduct independent compliance assessments. The scope of the assessments
will include, among other things, an evaluation of documented evidence to confirm adherence
(e.g., accuracy and timeliness) to HAFA requirements with respect to the following: Assessment of the process for evaluating and approving borrowers
for a HAFA short sale or DIL. Supplemental Directive 09-09 Page 15 Adherence to the standard policies and guidelines for completing
HAFA short sales and DIL and consistent application of same. Determining fair market value, recommended list price, approved
sale proceeds and approved minimum net proceeds, as applicable. Guidelines for allowable payoffs to junior lien holders. Use of standard documents and document retention. Completion of borrower, servicer and
investor incentive payments. The review will also confirm the existence and evaluate the
effectiveness of the servicer’s quality assurance program; such evaluation will include, without
limitation, the timing and size of the sample selection, the scope of the quality assurance reviews, and
the reporting and remediation process. There will be two types of compliance assessments: on-site and
remote. Both on-site and remote reviews will include the following activities (among others):
notification, scheduling, selfassessments, documentation submission, interviews, file reviews, and reporting. For on-site reviews, Freddie Mac will strive to provide the servicer with (i) a 30-day
advance notification of a pending review and (ii) subsequent confirmation
of the dates of the review; however, Freddie Mac reserves the right to arrive at the servicer’s site unannounced. Freddie Mac will request the servicer to make
available documentation, including, without limitation, policies and procedures, management reports, loan files and a risk
control self assessment ready for review. Moreover, Freddie Mac may request additional loan
files during the review. Interviews will usually be conducted in-person. During the review window, Freddie Mac will review loan files and
other requested documentation to evaluate compliance with HAFA terms. Upon the
completion of the review, Freddie Mac will conduct an exit interview with the servicer to discuss preliminary assessment results. For remote reviews, Freddie Mac will request the servicer to send documentation, including, without limitation, policies and procedures, management reports,
loan files and a risk control self assessment within 30 calendar days of the request. In addition,
time will be scheduled for phone interviews, including a results summary call after the compliance
review is completed to discuss preliminary results. The targeted time frame for publishing the servicer
assessment report is 30 calendar days after the completion of the review. Treasury will receive a copy of the
report five business days prior to the release of the report to the servicer.
There will be an issue/resolution appeal process for servicer
assessments. Servicers will be able to submit
concerns or disputes to an independent quality assurance team within Freddie Mac. A draft rating and implication methodology for the compliance
assessments will be published in a subsequent Supplemental Directive and servicer
feedback will be solicited prior to the finalization of the methodology.
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