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Introduced Version Senate Bill 361 History

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Key: Green = existing Code. Red = new code to be enacted
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Senate Bill No. 361

(By Senators Unger and Nohe)

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         [Introduced February 25, 2013; referred to the Committee on Banking and Insurance; and then to the Committee on the Judiciary.]                            

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A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §31-17B-1, §31-17B-2, §31-17B-3, §31-17B-4, §31-17B-5, §31-17B-6, §31-17B-7, §31-17B-8, §31-17B-9, §31-17B-10, §31-17B-11, §31-17B-12, §31-17B-13, §31-17B-14, §31-17B-15, §31-17B-16, §31-17B-17, §31-17B-18, §31-17B-19, §31-17B-20 and §31-17B-21, all relating to creating the West Virginia Homeowner Bill of Rights; stating legislative findings and purpose in relation to foreclosures in the state generally; requiring mortgage servicers to contact the borrower prior to filing a notice of default; requiring mortgage servicers to explore options for the borrower to avoid foreclosure; requiring the borrower to be provided with specified information in writing prior to recordation of a notice of default; establishing additional procedures to be followed regarding a first lien loan modification application and the denial of an application; providing for a borrower's right to appeal a denial; authorizing a borrower to seek an injunction and damages for violations; authorizing the greater of treble actual damages or $50,000 in statutory damages if a violation is found to be intentional or reckless or resulted from willful misconduct; providing that violations by licensees of certain state agencies are also violations of those respective licensing laws; requiring a mortgage servicer who conducts more than one hundred seventy-five foreclosure sales per year or annual reporting period to establish a single point of contact with the borrower; requiring that, before recording or filing any of certain documents, a mortgage servicer shall ensure that it has reviewed competent and reliable evidence to substantiate the borrower's default and the right to foreclose, including the borrower's loan status and loan information; authorizing administrative enforcement against licensees by certain state agencies; defining terms; setting forth requirements; establishing effective and termination dates; and authorizing rulemaking.
Be it enacted by the Legislature of West Virginia:
    That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §31-17B-1, §31-17B-2, §31-17B-3, §31-17B-4, §31-17B-5, §31-17B-6, §31-17B-7, §31-17B-8, §31-17B-9, §31-17B-10, §31-17B-11, §31-17B-12, §31-17B-13, §31-17B-14, §31-17B-15, §31-17B-16, §31-17B-17, §31-17B-18, §31-17B-19, §31-17B-20 and §31-17B-21, all to read as follows:
ARTICLE 17B. THE WEST VIRGINIA HOMEOWNER BILL OF RIGHTS.
§31-17B-1. Legislative findings.
   The Legislature finds the following:
    (1) The country is still reeling from the economic impacts of a wave of residential property foreclosures that began in 2007. All of this foreclosure activity has adversely affected property values and resulted in less money for schools, public safety, and other public services.
    (2) It is essential to the economic health of this state to mitigate the negative effects on the state and local economies and the housing market that are the result of continued foreclosures by modifying the foreclosure process to ensure that borrowers who may qualify for a foreclosure alternative are considered for, and have a meaningful opportunity to obtain, available loss mitigation options. These changes to the state's foreclosure process are essential to ensure that the current crisis is not worsened by unnecessarily adding foreclosed properties to the market when an alternative to foreclosure may be available. Avoiding foreclosure, where possible, will help stabilize the state's housing market and avoid the substantial, corresponding negative effects of foreclosures on families, communities and the state and local economy.
    (3) This article is necessary to provide stability to West Virginia's statewide and regional economies and housing market by facilitating opportunities for borrowers to pursue loss mitigation options.
§31-17B-2. Definitions.
    For purposes of this article:
    "Borrower" means, unless otherwise provided and for purposes of sections three, four, five, six, eight, nine, eleven, twelve, thirteen, fourteen, twenty and twenty-one of this article, any natural person who is a mortgagor or trustor and who is potentially eligible for any federal, state or proprietary foreclosure prevention alternative program offered by, or through, his or her mortgage servicer. "Borrower" does not include: An individual who has surrendered the secured property as evidenced by either a letter confirming the surrender or delivery of the keys to the property to the mortgagee, trustee, beneficiary or authorized agent; an individual who has contracted with an organization, person, or entity whose primary business is advising people who have decided to leave their homes on how to extend the foreclosure process and avoid their contractual obligations to mortgagees or beneficiaries; or an individual who has filed a case under Chapter 7, 11, 12, or 13 of Title 11 of the United States Code and the bankruptcy court has not entered an order closing or dismissing the bankruptcy case, or granting relief from a stay of foreclosure.     "First lien" means the most senior mortgage or deed of trust on the property that is the subject of the notice of default or notice of sale.
    "Foreclosure prevention alternative" means a first lien loan modification or another available loss mitigation option.
    "Mortgage servicer" means a person or entity who directly services a loan, or who is responsible for interacting with the borrower, managing the loan account on a daily basis including collecting and crediting periodic loan payments, managing any escrow account or enforcing the note and security instrument, either as the current owner of the promissory note or as the current owner's authorized agent. "Mortgage servicer" also means a subservicing agent to a master servicer by contract. "Mortgage servicer" does not include a trustee, or a trustee's authorized agent, acting under a power of sale pursuant to a deed of trust.
§31-17B-3. Purpose.
    (a) The purpose of this article is to ensure that, as part of the nonjudicial foreclosure process, borrowers are considered for, and have a meaningful opportunity to obtain, available loss mitigation options, if any, offered by or through the borrower's mortgage servicer, such as loan modifications or other alternatives to foreclosure. This article does not require a particular result of that process.
    (b) Nothing in this article obviates or supersedes the obligations of the signatories to the consent judgment entered on April 4, 2012 in United States of America, et al. v. Bank of America Corporation, et al., filed in the United States District Court for the District of Columbia, Case Number 1:12-cv-00361 RMC.
§31-17B-4. Notice of default; recording; contact with borrower; conditions; due diligence; termination date.
 (a) (1) A mortgage servicer, mortgagee, trustee, beneficiary or authorized agent may not record a notice of default pursuant to section ten of this article until:
 (A) Either thirty days after initial contact is made as required by subdivision (2) of this subsection or thirty days after satisfying the due diligence requirements of subsection (e) of this section; and
 (B) The mortgage servicer complies with subdivision (1), subsection (a), section twenty of this article, if the borrower has provided a complete application as defined in subsection (d) of that section.
 (2) A mortgage servicer shall contact the borrower in person or by telephone in order to assess the borrower's financial situation and explore options for the borrower to avoid foreclosure. During the initial contact, the mortgage servicer shall advise the borrower that he or she has the right to request a subsequent meeting and, if requested, the mortgage servicer shall schedule the meeting to occur within fourteen days. The assessment of the borrower's financial situation and discussion of options may occur during the first contact, or at the subsequent meeting scheduled for that purpose. In either case, the borrower shall be provided the toll-free telephone number made available by the Department of Housing and Urban Development to find a Department of Housing and Urban Development-certified housing counseling agency. Any meeting may occur telephonically.
 (b) A notice of default recorded pursuant to section ten of this article shall include a declaration that the mortgage servicer has contacted the borrower, has tried with due diligence to contact the borrower as required by this section, or that no contact was required because the individual did not meet the definition of "borrower" pursuant to section two of this article.
 (c) A mortgage servicer's loss mitigation personnel may participate by telephone during any contact required by this section.
 (d) A borrower may designate, with consent given in writing, a Housing and Urban Development-certified housing counseling agency, attorney or other advisor to discuss with the mortgage servicer, on the borrower's behalf, the borrower's financial situation and options for the borrower to avoid foreclosure. That contact made at the direction of the borrower satisfies the contact requirements of subdivision (2), subsection (a) of this section. Any loan modification or workout plan offered at the meeting by the mortgage servicer is subject to approval by the borrower.
 (e) A notice of default may be recorded pursuant to section ten of this article when a mortgage servicer has not contacted a borrower as required by subdivision (2), subsection (a) of this section: Provided, That the failure to contact the borrower occurred despite the due diligence of the mortgage servicer. For purposes of this section, "due diligence" requires and means all of the following:
 (1) A mortgage servicer shall first attempt to contact a borrower by sending a first-class letter that includes the toll-free telephone number made available by Housing and Urban Development to find a Department of Housing and Urban Development-certified housing counseling agency;
 (2) (A) After the letter has been sent, the mortgage servicer shall attempt to contact the borrower by telephone at least three times at different hours and on different days. Telephone calls shall be made to the primary telephone number on file;
 (B) A mortgage servicer may attempt to contact a borrower using an automated system to dial borrowers if, when the telephone call is answered, the call is connected to a live representative of the mortgage servicer;
 (C) A mortgage servicer satisfies the telephone contact requirements of this subdivision if it determines, after attempting contact pursuant to this subdivision, that the borrower's primary telephone number and secondary telephone number or numbers on file, if any, have been disconnected;
 (3) If the borrower does not respond within two weeks after the telephone call requirements of subdivision (2) of this subsection have been satisfied, the mortgage servicer shall then send a certified letter, with return receipt requested;
 (4) The mortgage servicer shall provide a means for the borrower to contact it in a timely manner, including a toll-free telephone number that will provide access to a live representative during business hours; and
 (5) The mortgage servicer has posted a prominent link on the homepage of its Internet Web site, if any, to the following information:
 (A) Options that may be available to borrowers who are unable to afford their mortgage payments and who wish to avoid foreclosure, and instructions to borrowers advising them on steps to take to explore those options;
 (B) A list of financial documents borrowers should collect and be prepared to present to the mortgage servicer when discussing options for avoiding foreclosure;
 (C) A toll-free telephone number for borrowers who wish to discuss options for avoiding foreclosure with their mortgage servicer; and
 (D) The toll-free telephone number made available by Department of Housing and Urban Development to find a Department of Housing and Urban Development-certified housing counseling agency.
 (f) This section applies only to mortgages or deeds of trust described in sections sixteen and seventeen of this article.
 (g) This section applies only to entities described in subsection (b), section twenty of this article.
 (h) This section remains in effect only until January 1, 2018, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2018, deletes or extends that date.
§31-17B-5. Notice of default; recording; contact with borrower; conditions; due diligence; applicability; effective date.
 (a) (1) A mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent may not record a notice of default pursuant to section ten of this article until:
 (A) Either thirty days after initial contact is made as required by subdivision (2) of this subsection or thirty days after satisfying the due diligence requirements as described in subsection (e) of this section; and
 (B) The mortgage servicer complies with subsection (a), section thirteen of this article, if the borrower has provided a complete application as defined in subsection (f), section fourteen of this article; and
 (2) A mortgage servicer shall contact the borrower in person or by telephone in order to assess the borrower's financial situation and explore options for the borrower to avoid foreclosure. During the initial contact, the mortgage servicer shall advise the borrower that he or she has the right to request a subsequent meeting and, if requested, the mortgage servicer shall schedule the meeting to occur within fourteen days. The assessment of the borrower's financial situation and discussion of options may occur during the first contact, or at the subsequent meeting scheduled for that purpose. In either case, the borrower shall be provided the toll-free telephone number made available by the Department of Housing and Urban Development to find a Housing and Urban Development-certified housing counseling agency. Any meeting may occur telephonically.
 (b) A notice of default recorded pursuant to section ten of this article shall include a declaration that the mortgage servicer has contacted the borrower, has tried with due diligence to contact the borrower as required by this section, or that no contact was required because the individual did not meet the definition of "borrower" pursuant to section two of this article.
 (c) A mortgage servicer's loss mitigation personnel may participate by telephone during any contact required by this section.
 (d) A borrower may designate, with consent given in writing, a Housing and Urban Development-certified housing counseling agency, attorney or other advisor to discuss with the mortgage servicer, on the borrower's behalf, the borrower's financial situation and options for the borrower to avoid foreclosure. That contact made at the direction of the borrower shall satisfy the contact requirements of subdivision (2), subsection (a) of this section. Any loan modification or workout plan offered at the meeting by the mortgage servicer is subject to approval by the borrower.
 (e) A notice of default may be recorded pursuant to section ten of this article when a mortgage servicer has not contacted a borrower as required by subdivision (2), subsection (a) of this section: Provided, That the failure to contact the borrower occurred despite the due diligence of the mortgage servicer. For purposes of this section, "due diligence" requires and means all of the following:
 (1) A mortgage servicer shall first attempt to contact a borrower by sending a first-class letter that includes the toll-free telephone number made available by Housing and Urban Development to find a Housing and Urban Development-certified housing counseling agency;
 (2) (A) After the letter has been sent, the mortgage servicer shall attempt to contact the borrower by telephone at least three times at different hours and on different days. Telephone calls shall be made to the primary telephone number on file;
 (B) A mortgage servicer may attempt to contact a borrower using an automated system to dial borrowers if, when the telephone call is answered, the call is connected to a live representative of the mortgage servicer; and
 (C) A mortgage servicer satisfies the telephone contact requirements of this subdivision if it determines, after attempting contact pursuant to this subdivision, that the borrower's primary telephone number and secondary telephone number or numbers on file, if any, have been disconnected;
 (3) If the borrower does not respond within two weeks after the telephone call requirements of subdivision (2) of this subsection have been satisfied, the mortgage servicer shall then send a certified letter, with return receipt requested;
 (4) The mortgage servicer shall provide a means for the borrower to contact it in a timely manner, including a toll-free telephone number that will provide access to a live representative during business hours; and
 (5) The mortgage servicer has posted a prominent link on the homepage of its Internet Web site, if any, to the following information:
 (A) Options that may be available to borrowers who are unable to afford their mortgage payments and who wish to avoid foreclosure, and instructions to borrowers advising them on steps to take to explore those options;
 (B) A list of financial documents borrowers should collect and be prepared to present to the mortgage servicer when discussing options for avoiding foreclosure;
 (C) A toll-free telephone number for borrowers who wish to discuss options for avoiding foreclosure with their mortgage servicer; and
 (D) The toll-free telephone number made available by Housing and Urban Development to find a Housing and Urban Development-certified housing counseling agency.
  (f) This section applies only to mortgages or deeds of trust described in sections seventeen and eighteen of this article.
  (g) This section becomes operative on January 1, 2018.
§31-17B-6. Notice of default; recording; conditions; contact with borrower; due diligence; applicability; termination date.
 (a) A mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent may not record a notice of default pursuant to section ten of this article until all of the following have been completed:
 (1) The mortgage servicer has satisfied the requirements of subdivision (1), subsection (b) of this section;
 (2) Either thirty days after initial contact is made as required by subdivision (2), subsection (b) of this section or thirty days after satisfying the due diligence requirements as described in subsection (f) of this section;
 (3) The mortgage servicer complies with subsection (c) of this section and subsection (c), section seven of this article, if the borrower has provided a complete application.
 (b) (1) A mortgage servicer shall send the following information in writing to the borrower:
 (A) A statement that if the borrower is a service member or a dependent of a service member, he or she may be entitled to certain protections under the federal Service Members Civil Relief Act, 50 U.S.C. §501 et seq., regarding the service member's interest rate and the risk of foreclosure, and counseling for covered Service members that is available at agencies such as Military One Source and Armed Forces Legal Assistance; and
 (B) A statement that the borrower may request the following:
 (i) A copy of the borrower's promissory note or other evidence of indebtedness;
 (ii) A copy of the borrower's deed of trust or mortgage;
 (iii) A copy of any assignment, if applicable, of the borrower's mortgage or deed of trust required to demonstrate the right of the mortgage servicer to foreclose; and
 (iv) A copy of the borrower's payment history since the borrower was last less than sixty days past due; and
 (2) A mortgage servicer shall contact the borrower in person or by telephone in order to assess the borrower's financial situation and explore options for the borrower to avoid foreclosure. During the initial contact, the mortgage servicer shall advise the borrower that he or she has the right to request a subsequent meeting and, if requested, the mortgage servicer shall schedule the meeting to occur within fourteen days. The assessment of the borrower's financial situation and discussion of options may occur during the first contact, or at the subsequent meeting scheduled for that purpose. In either case, the borrower shall be provided the toll-free telephone number made available by the Housing and Urban Development to find a Housing and Urban Development-certified housing counseling agency. Any meeting may occur telephonically.
 (c) A notice of default recorded pursuant to section ten of this article shall include a declaration that the mortgage servicer has contacted the borrower, has tried with due diligence to contact the borrower as required by this section, or that no contact was required because the individual did not meet the definition of "borrower" pursuant to section two of this article.
 (d) A mortgage servicer's loss mitigation personnel may participate by telephone during any contact required by this section.
 (e) A borrower may designate, with consent given in writing, a Housing and Urban Development-certified housing counseling agency, attorney, or other advisor to discuss with the mortgage servicer, on the borrower's behalf, the borrower's financial situation and options for the borrower to avoid foreclosure. That contact made at the direction of the borrower shall satisfy the contact requirements of subdivision (2), subsection (b) of this section. Any foreclosure prevention alternative offered at the meeting by the mortgage servicer is subject to approval by the borrower.
 (f) A notice of default may be recorded pursuant to section ten when a mortgage servicer has not contacted a borrower as required by this article, provided that the failure to contact the borrower occurred despite the due diligence of the mortgage servicer. For purposes of this section, "due diligence" requires and means all of the following:
 (1) A mortgage servicer shall first attempt to contact a borrower by sending a first-class letter that includes the toll-free telephone number made available by Department of Housing and Urban Development to find a Department of Housing and Urban Development-certified housing counseling agency;
 (2) (A) After the letter has been sent, the mortgage servicer shall attempt to contact the borrower by telephone at least three times at different hours and on different days. Telephone calls shall be made to the primary telephone number on file.
 (B) A mortgage servicer may attempt to contact a borrower using an automated system to dial borrowers if, when the telephone call is answered, the call is connected to a live representative of the mortgage servicer.
 (C) A mortgage servicer satisfies the telephone contact requirements of this subdivision if it determines, after attempting contact pursuant to this subdivision, that the borrower's primary telephone number and secondary telephone number or numbers on file, if any, have been disconnected;
 (3) If the borrower does not respond within two weeks after the telephone call requirements of subdivision (2) of this subsection have been satisfied, the mortgage servicer shall then send a certified letter, with return receipt requested, that includes the toll-free telephone number made available by Housing and Urban Development to find a Housing and Urban Development-certified housing counseling agency;
 (4) The mortgage servicer shall provide a means for the borrower to contact it in a timely manner, including a toll-free telephone number that will provide access to a live representative during business hours; and
 (5) The mortgage servicer has posted a prominent link on the homepage of its Internet Web site, if any, to the following information:
 (A) Options that may be available to borrowers who are unable to afford their mortgage payments and who wish to avoid foreclosure, and instructions to borrowers advising them on steps to take to explore those options;
 (B) A list of financial documents borrowers should collect and be prepared to present to the mortgage servicer when discussing options for avoiding foreclosure;
 (C) A toll-free telephone number for borrowers who wish to discuss options for avoiding foreclosure with their mortgage servicer; and
 (D) The toll-free telephone number made available by Housing and Urban Development to find a Housing and Urban Development-certified housing counseling agency.
 (g) This section does not apply to entities described in subsection (b), section twenty of this article.
 (h) This section applies only to mortgages or deeds of trust described in seventeen and eighteen of this article.
 (i) This section remains in effect only until January 1, 2018, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2018, deletes or extends that date.
§31-17B-7. Legislative declaration; loan modification; notice; applicability; exceptions; requirements; termination date.
     (a) The Legislature finds:
     (1) That any duty that mortgage servicers may have to maximize net present value under their pooling and servicing agreements is owed to all parties in a loan pool, or to all investors under a pooling and servicing agreement, not to any particular party in the loan pool or investor under a pooling and servicing agreement; and      (2) That a mortgage servicer acts in the best interests of all parties to the loan pool or investors in the pooling and servicing agreement if it agrees to or implements a loan modification or workout plan for which both of the following apply:
     (A) The loan is in payment default, or payment default is reasonably foreseeable; and
     (B) Anticipated recovery under the loan modification or workout plan exceeds the anticipated recovery through foreclosure on a net present value basis.
     (b) It is the intent of the Legislature that the mortgage servicer offer the borrower a loan modification or workout plan if the modification or plan is consistent with its contractual or other authority.
     (c) If a borrower submits a complete application for a first lien loan modification offered by, or through, the borrower's mortgage servicer, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent may not record a notice of default or notice of sale, or conduct a trustee's sale, while the complete first lien loan modification application is pending. A mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent may not record a notice of default or notice of sale or conduct a trustee's sale until any of the following occurs:
     (1) The mortgage servicer makes a written determination that the borrower is not eligible for a first lien loan modification, and any appeal period pursuant to subsection (d) of this section has expired;
     (2) The borrower does not accept an offered first lien loan modification within fourteen days of the offer; or
     (3) The borrower accepts a written first lien loan modification, but defaults on, or otherwise breaches the borrower's obligations under, the first lien loan modification.
     (d) If the borrower's application for a first lien loan modification is denied, the borrower has at least thirty days from the date of the written denial to appeal the denial and to provide evidence that the mortgage servicer's determination was in error.
     (e) If the borrower's application for a first lien loan modification is denied, the mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent may not record a notice of default or, if a notice of default has already been recorded, record a notice of sale or conduct a trustee's sale until the later of:
     (1) Thirty-one days after the borrower is notified in writing of the denial; or
     (2) If the borrower appeals the denial pursuant to subsection (d) of this section, the later of fifteen days after the denial of the appeal or fourteen days after a first lien loan modification is offered after appeal but declined by the borrower, or, if a first lien loan modification is offered and accepted after appeal, the date on which the borrower fails to timely submit the first payment or otherwise breaches the terms of the offer.
     (f) Following the denial of a first lien loan modification application, the mortgage servicer shall send a written notice to the borrower identifying the reasons for denial, including the following:
     (1) The amount of time from the date of the denial letter in which the borrower may request an appeal of the denial of the first lien loan modification and instructions regarding how to appeal the denial;
     (2) If the denial was based on investor disallowance, the specific reasons for the investor disallowance;
     (3) If the denial is the result of a net present value calculation, the monthly gross income and property value used to calculate the net present value and a statement that the borrower may obtain all of the inputs used in the net present value calculation upon written request to the mortgage servicer;
     (4) If applicable, a finding that the borrower was previously offered a first lien loan modification and failed to successfully make payments under the terms of the modified loan; and
     (5) If applicable, a description of other foreclosure prevention alternatives for which the borrower may be eligible, and a list of the steps the borrower shall take in order to be considered for those options. If the mortgage servicer has already approved the borrower for another foreclosure prevention alternative, information necessary to complete the foreclosure prevention alternative.
     (g) In order to minimize the risk of borrowers submitting multiple applications for first lien loan modifications for the purpose of delay, the mortgage servicer is not obligated to evaluate applications from borrowers who have already been evaluated or afforded a fair opportunity to be evaluated for a first lien loan modification prior to January 1, 2013, or who have been evaluated or afforded a fair opportunity to be evaluated consistent with the requirements of this section, unless there has been a material change in the borrower's financial circumstances since the date of the borrower's previous application and that change is documented by the borrower and submitted to the mortgage servicer.
     (h) For purposes of this section, an application is complete when a borrower has supplied the mortgage servicer with all documents required by the mortgage servicer within the reasonable time frames specified by the mortgage servicer.
     (i) Subsections (c) through (h) of this section, inclusive, do not apply to entities described in subsection (b), section twenty of this article.
     (j) This section applies only to mortgages or deeds of trust described in sections seventeen and eighteen of this article.
     (k) This section remains in effect only until January 1, 2018, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2018, deletes or extends that date.
§31-17B-8. Legislative declaration; intent; applicability; loan modification; effective date.
 (a) The Legislature finds:
 (1) That any duty mortgage servicers may have to maximize net present value under their pooling and servicing agreements is owed to all parties in a loan pool, or to all investors under a pooling and servicing agreement, not to any particular party in the loan pool or investor under a pooling and servicing agreement; and
 (2) That a mortgage servicer acts in the best interests of all parties to the loan pool or investors in the pooling and servicing agreement if it agrees to or implements a loan modification or workout plan for which both of the following apply:
  (A) The loan is in payment default, or payment default is reasonably foreseeable; and
  (B) Anticipated recovery under the loan modification or workout plan exceeds the anticipated recovery through foreclosure on a net present value basis.
  (b) It is the intent of the Legislature that the mortgage servicer offer the borrower a loan modification or workout plan if the modification or plan is consistent with its contractual or other authority.
  (c) This section becomes operative on January 1, 2018.
§31-17B-9. Foreclosure prevention; single point of contact;     requirements; limitation of liability applicability; defaults; exceptions.
  (a) Upon request from a borrower who requests a foreclosure prevention alternative, the mortgage servicer shall promptly establish a single point of contact and provide to the borrower one or more direct means of communication with the single point of contact.
  (b) The single point of contact is responsible for doing all of the following:
  (1) Communicating the process by which a borrower may apply for an available foreclosure prevention alternative and the deadline for any required submissions to be considered for these options;
  (2) Coordinating receipt of all documents associated with available foreclosure prevention alternatives and notifying the borrower of any missing documents necessary to complete the application;
  (3) Having access to current information and personnel sufficient to timely, accurately, and adequately inform the borrower of the current status of the foreclosure prevention alternative;
  (4) Ensuring that a borrower is considered for all foreclosure prevention alternatives offered by, or through, the mortgage servicer, if any; and
  (5) Having access to individuals with the ability and authority to stop foreclosure proceedings when necessary.
  (c) The single point of contact remains assigned to the borrower's account until the mortgage servicer determines that all loss mitigation options offered by, or through, the mortgage servicer have been exhausted or the borrower's account becomes current.
  (d) The mortgage servicer shall ensure that a single point of contact refers and transfers a borrower to an appropriate supervisor upon request of the borrower, if the single point of contact has a supervisor.
  (e) For purposes of this section, "single point of contact" means an individual or team of personnel each of whom has the ability and authority to perform the responsibilities described in subsections (b) through (d) of this section, inclusive. The mortgage servicer shall ensure that each member of the team is knowledgeable about the borrower's situation and current status in the alternatives to foreclosure process.
  (f) This section applies only to mortgages or deeds of trust described in sections seventeen and eighteen of this article.
  (g) (1) This section does not apply to a depository institution chartered under state or federal law that foreclosed on one hundred seventy-five or fewer residential real properties, containing no more than four dwelling units, that are located in West Virginia.
  (2) Within three months after the close of any calendar year or annual reporting period as established with its primary regulator during which an entity or person described in subdivision (1) of this subsection exceeds the threshold of one hundred seventy-five specified in that subdivision, that entity shall notify its primary regulator, in a manner acceptable to its primary regulator, and any mortgagor or trustor who is delinquent on a residential mortgage loan serviced by that entity of the date on which that entity will be subject to this section, which date is the first day of the first month that is six months after the close of the calendar year or annual reporting period during which that entity exceeded the threshold.
§31-17B-10. Property interest transfer; recording; requirements; termination date; privileged communication.
 (a) Every transfer of an interest in property, other than in trust, made only as a security for the performance of another act, is a mortgage, except when in the case of personal property it is accompanied by actual change of possession, in which case it is a pledge. Where, by a mortgage created after July 27, 1917, of any estate in real property, other than an estate at will or for years, less than two, or in any transfer in trust made after July 27, 1917, of a like estate to secure the performance of an obligation, a power of sale is conferred upon the mortgagee, trustee, or any other person, to be exercised after a breach of the obligation for which that mortgage or transfer is a security, the power may not be exercised except where the mortgage or transfer is made pursuant to an order, judgment, or decree of a court of record, or to secure the payment of bonds or other evidences of indebtedness authorized or permitted, until all of the following apply:
 (1) The trustee, mortgagee, or beneficiary, or any of their authorized agents first files for record, in the office of the county clerk of each county where the mortgaged or trust property or some part or parcel thereof is situated, a notice of default. That notice of default shall include all of the following:
 (A) A statement identifying the mortgage or deed of trust by stating the name or names of the trustor or trustors and giving the book and page, or instrument number, if applicable, where the mortgage or deed of trust is recorded or a description of the mortgaged or trust property;
 (B) A statement that a breach of the obligation for which the mortgage or transfer in trust in security has occurred; and
 (C) A statement setting forth the nature of each breach actually known to the beneficiary and of his or her election to sell or cause to be sold the property to satisfy that obligation and any other obligation secured by the deed of trust or mortgage that is in default;
 (2) Not less than three months must elapse from the filing of the notice of default;
 (3) After the lapse of the three months described in subdivision (2) of this subsection, the mortgagee, trustee, or other person authorized to take the sale shall give notice of sale, stating the time and place of the sale;
 (4) Notwithstanding subdivision (3) of this subsection, the mortgagee, trustee, or other person authorized to take sale may record a notice of sale up to five days before the lapse of the three-month period described in subdivision (2) of this subsection: Provided, That the date of sale is no earlier than three months and twenty days after the recording of the notice of default;
 (5) Until January 1, 2018, whenever a sale is postponed for a period of at least ten business days a mortgagee, beneficiary, or authorized agent shall provide written notice to a borrower regarding the new sale date and time, within five business days following the postponement. Failure to comply with this subdivision does not invalidate any sale that would otherwise be valid. This subdivision becomes inoperative on January 1, 2018; and
 (6) No entity may record or cause a notice of default to be recorded or otherwise initiate the foreclosure process unless it is the holder of the beneficial interest under the mortgage or deed of trust, the original trustee or the substituted trustee under the deed of trust, or the designated agent of the holder of the beneficial interest. No agent of the holder of the beneficial interest under the mortgage or deed of trust, original trustee or substituted trustee under the deed of trust may record a notice of default or otherwise commence the foreclosure process except when acting within the scope of authority designated by the holder of the beneficial interest.
 (b) In performing acts required by this article, the trustee does not incur any liability for any good faith error resulting from reliance on information provided in good faith by the beneficiary regarding the nature and the amount of the default under the secured obligation, deed of trust, or mortgage.
 (c) A recital in the deed executed pursuant to the power of sale of compliance with all requirements of law regarding the mailing of copies of notices or the publication of a copy of the notice of default or the personal delivery of the copy of the notice of default or the posting of copies of the notice of sale or the publication of a copy is prima facie evidence of compliance with these requirements and conclusive evidence thereof in favor of bona fide purchasers and encumbrancers for value and without notice.
 (d) All of the following are privileged communications:
 (1) The mailing, publication, and delivery of notices as required by this section; and
 (2) Performance of the procedures set forth in this article.
 (e) There is a rebuttable presumption that the beneficiary actually knew of all unpaid loan payments on the obligation owed to the beneficiary and secured by the deed of trust or mortgage subject to the notice of default. However, the failure to include an actually known default does not invalidate the notice of sale and the beneficiary is not precluded from asserting a claim to this omitted default or defaults in a separate notice of default.
§31-17B-11. Foreclosure prevention alternative; applicability; termination date.
 (a) Unless a borrower has previously exhausted the first lien loan modification process offered by, or through, his or her mortgage servicer described in section seven or eight of this article, a mortgage servicer that offers one or more foreclosure prevention alternatives shall, within five business days after recording a notice of default pursuant to section ten of this article, send a written communication to the borrower that includes all of the following information:
 (1) That the borrower may be evaluated for a foreclosure prevention alternative or, if applicable, foreclosure prevention alternatives;
 (2) Whether an application is required to be submitted by the borrower in order to be considered for a foreclosure prevention alternative; and
 (3) The means and process by which a borrower may obtain an application for a foreclosure prevention alternative.
 (b) This section does not apply to entities described in subsection (b), section twenty of this article.
 (c) This section applies only to mortgages or deeds of trust described in sections seventeen and eighteen of this article.
 (d) This section remains in effect only until January 1, 2018, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2018, deletes or extends that date.
§31-17B-12. First lien modification; requirements; applicability; termination date.
 (a) When a borrower submits a complete first lien modification application or any document in connection with a first lien modification application, the mortgage servicer shall provide written acknowledgment of the receipt of the documentation within five business days of receipt. In its initial acknowledgment of receipt of the loan modification application, the mortgage servicer shall include the following information:
 (1) A description of the loan modification process, including an estimate of when a decision on the loan modification will be made after a complete application has been submitted by the borrower and the length of time the borrower will have to consider an offer of a loan modification or other foreclosure prevention alternative;
 (2) Any deadlines, including deadlines to submit missing documentation, that would affect the processing of a first lien loan modification application;
 (3) Any expiration dates for submitted documents; and
 (4) Any deficiency in the borrower's first lien loan modification application.
 (b) For purposes of this section, a borrower's first lien loan modification application is complete when a borrower has supplied the mortgage servicer with all documents required by the mortgage servicer within the reasonable time frames specified by the mortgage servicer.
 (c) This section does not apply to entities described in subsection (b), section twenty of this article.
 (d) This section applies only to mortgages or deeds of trust described in seventeen and eighteen of this article.
 (e) This section remains in effect only until January 1, 2018, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2018, deletes or extends that date.
§31-17B-13. Notice of default; requirements; foreclosure prevention; applicability; termination date.
 (a) If a foreclosure prevention alternative is approved in writing prior to the recordation of a notice of default, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent may not record a notice of default under either of the following circumstances:
 (1) The borrower is in compliance with the terms of a written trial or permanent loan modification, forbearance or repayment plan; or
 (2) A foreclosure prevention alternative has been approved in writing by all parties, including, for example, the first lien investor, junior lienholder and mortgage insurer, as applicable, and proof of funds or financing has been provided to the servicer.
 (b) If a foreclosure prevention alternative is approved in writing after the recordation of a notice of default, a mortgage servicer, mortgagee, trustee, beneficiary or authorized agent may not record a notice of sale or conduct a trustee's sale under either of the following circumstances:
 (1) The borrower is in compliance with the terms of a written trial or permanent loan modification, forbearance or repayment plan; or
 (2) A foreclosure prevention alternative has been approved in writing by all parties, including, for example, the first lien investor, junior lienholder and mortgage insurer, as applicable, and proof of funds or financing has been provided to the servicer.
 (c) When a borrower accepts an offered first lien loan modification or other foreclosure prevention alternative, the mortgage servicer shall provide the borrower with a copy of the fully executed loan modification agreement or agreement evidencing the foreclosure prevention alternative following receipt of the executed copy from the borrower.
 (d) A mortgagee, beneficiary, or authorized agent shall record a rescission of a notice of default or cancel a pending trustee's sale, if applicable, upon the borrower executing a permanent foreclosure prevention alternative. In the case of a short sale, the rescission or cancellation of the pending trustee's sale shall occur when the short sale has been approved by all parties and proof of funds or financing has been provided to the mortgagee, beneficiary, or authorized agent.
 (e) The mortgage servicer may not charge any application, processing, or other fee for a first lien loan modification or other foreclosure prevention alternative.
 (f) The mortgage servicer may not collect any late fees for periods during which a complete first lien loan modification application is under consideration or a denial is being appealed, the borrower is making timely modification payments, or a foreclosure prevention alternative is being evaluated or exercised.
 (g) If a borrower has been approved in writing for a first lien loan modification or other foreclosure prevention alternative, and the servicing of that borrower's loan is transferred or sold to another mortgage servicer, the subsequent mortgage servicer shall continue to honor any previously approved first lien loan modification or other foreclosure prevention alternative, in accordance with the provisions of this article.
 (h) This section applies only to mortgages or deeds of trust described in sections seventeen and eighteen of this article.
 (i) This section does not apply to entities described in subsection (b), section twenty of this article.
 (j) This section remains in effect only until January 1, 2018, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2018, deletes or extends that date.
§31-17B-14. Foreclosure prevention alternative; requirements; effective date.
 (a) If a borrower submits a complete application for a foreclosure prevention alternative offered by, or through, the borrower's mortgage servicer, a mortgage servicer, trustee, mortgagee, beneficiary or authorized agent may not record a notice of sale or conduct a trustee's sale while the complete foreclosure prevention alternative application is pending, and until the borrower has been provided with a written determination by the mortgage servicer regarding that borrower's eligibility for the requested foreclosure prevention alternative.
 (b) Following the denial of a first lien loan modification application, the mortgage servicer shall send a written notice to the borrower identifying with specificity the reasons for the denial and shall include a statement that the borrower may obtain additional documentation supporting the denial decision upon written request to the mortgage servicer.
 (c) If a foreclosure prevention alternative is approved in writing prior to the recordation of a notice of default, a mortgage servicer, mortgagee, trustee, beneficiary or authorized agent may not record a notice of default under either of the following circumstances:
 (1) The borrower is in compliance with the terms of a written trial or permanent loan modification, forbearance, or repayment plan; or
 (2) A foreclosure prevention alternative has been approved in writing by all parties, including, for example, the first lien investor, junior lienholder and mortgage insurer, as applicable, and proof of funds or financing has been provided to the servicer.
 (d) If a foreclosure prevention alternative is approved in writing after the recordation of a notice of default, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent may not record a notice of sale or conduct a trustee's sale under either of the following circumstances:
 (1) The borrower is in compliance with the terms of a written trial or permanent loan modification, forbearance, or repayment plan; or
 (2) A foreclosure prevention alternative has been approved in writing by all parties, including, for example, the first lien investor, junior lienholder and mortgage insurer, as applicable, and proof of funds or financing has been provided to the servicer.
 (e) This section applies only to mortgages or deeds of trust as described in sections seventeen and eighteen of this article
 (f) For purposes of this section, an application is complete when a borrower has supplied the mortgage servicer with all documents required by the mortgage servicer within the reasonable time frames specified by the mortgage servicer.
 (g) This section becomes operative on January 1, 2018.
§31-17B-15. Trustee's deed; recording; injunctions; violations; exceptions; damages; attorney's fees; termination date.
 (a) (1) If a trustee's deed upon sale has not been recorded, a borrower may bring an action for injunctive relief to enjoin a material violation of section six, seven, eight, nine, eleven, twelve, thirteen, fourteen or nineteen of this article.
 (2) Any injunction remains in place and any trustee's sale shall be enjoined until the court determines that the mortgage servicer, mortgagee, trustee, beneficiary or authorized agent has corrected and remedied the violation or violations giving rise to the action for injunctive relief. An enjoined entity may move to dissolve an injunction based on a showing that the material violation has been corrected and remedied.
 (b) After a trustee's deed upon sale has been recorded, a mortgage servicer, mortgagee, trustee, beneficiary or authorized agent is liable to a borrower for actual economic damages, resulting from a material violation of section six, seven, eight, nine, eleven, twelve, thirteen, fourteen or nineteen of this article by that mortgage servicer, mortgagee, trustee, beneficiary or authorized agent where the violation was not corrected and remedied prior to the recordation of the trustee's deed upon sale. If the court finds that the material violation was intentional or reckless, or resulted from willful misconduct by a mortgage servicer, mortgagee, trustee, beneficiary or authorized agent, the court may award the borrower the greater of treble actual damages or statutory damages of $50,000.
 (c) A mortgage servicer, mortgagee, trustee, beneficiary or authorized agent is not liable for any violation that it has corrected and remedied prior to the recordation of a trustee's deed upon sale, or that has been corrected and remedied by third parties working on its behalf prior to the recordation of a trustee's deed upon sale.
 (d) A violation of section six, seven, eight, nine, eleven, twelve, thirteen, fourteen or nineteen of this article by a person licensed by the Commissioner of Banking, the West Virginia Real Estate Commission or subject to the jurisdiction of the West Virginia Business Corporation Act is a violation of that person's licensing requirements or other statutory requirements.
 (e) A violation of this article does not affect the validity of a sale in favor of a bona fide purchaser and any of its encumbrancers for value without notice.
 (f) A third-party encumbrancer is not relieved of liability resulting from violations of section six, seven, eight, nine, eleven, twelve, thirteen, fourteen or nineteen of this article committed by that third-party encumbrancer, that occurred prior to the sale of the subject property to the bona fide purchaser.
 (g) A signatory to a consent judgment entered on April 4, 2012 in United States of America, et al. v. Bank of America Corporation, et al., filed in the United States District Court for the District of Columbia, Case Number 1:12-cv-00361 RMC., that is in compliance with the relevant terms of the Settlement Term Sheet of that consent judgment with respect to the borrower who brought an action pursuant to this section while the consent judgment is in effect has no liability for a violation of section six, seven, eight, nine, eleven, twelve, thirteen, fourteen or nineteen of this article.
 (h) The rights, remedies, and procedures provided by this section are in addition to and independent of any other rights, remedies or procedures under any other law. Nothing in this section alters, limits or negates any other rights, remedies or procedures provided by law.
 (i) A court may award a prevailing borrower reasonable attorney's fees and costs in an action brought pursuant to this section. A borrower has prevailed for purposes of this subsection if the borrower obtained injunctive relief or was awarded damages pursuant to this section.
 (j) This section does not apply to entities described in subsection (b), section twenty of this article.
 (k) This section remains in effect only until January 1, 2018, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2018, deletes or extends that date.
§31-17B-16. Trustee's deed; recording; injunctive relief; liability; violations; exception; damages; attorney's fees; effective date.
 (a) (1) If a trustee's deed upon sale has not been recorded, a borrower may bring an action for injunctive relief to enjoin a material violation of section four, five, nine, thirteen, fourteen or nineteen of this article.
 (2) Any injunction remains in place and any trustee's sale shall be enjoined until the court determines that the mortgage servicer, mortgagee, trustee, beneficiary or authorized agent has corrected and remedied the violation or violations giving rise to the action for injunctive relief. An enjoined entity may move to dissolve an injunction based on a showing that the material violation has been corrected and remedied.
 (b) After a trustee's deed upon sale has been recorded, a mortgage servicer, mortgagee, trustee, beneficiary or authorized agent is liable to a borrower for actual economic damages resulting from a material violation of section four, five, nine, thirteen, fourteen or nineteen of this article by that mortgage servicer, mortgagee, trustee, beneficiary or authorized agent where the violation was not corrected and remedied prior to the recordation of the trustee's deed upon sale. If the court finds that the material violation was intentional or reckless, or resulted from willful misconduct by a mortgage servicer, mortgagee, trustee, beneficiary or authorized agent, the court may award the borrower the greater of treble actual damages or statutory damages of $50,000.
 (c) A mortgage servicer, mortgagee, trustee, beneficiary or authorized agent is not liable for any violation that it has corrected and remedied prior to the recordation of the trustee's deed upon sale, or that has been corrected and remedied by third parties working on its behalf prior to the recordation of the trustee's deed upon sale.
 (d) A violation of section four, five, nine, thirteen, fourteen or nineteen of this article by a person licensed by the Commissioner of Banking, the West Virginia Real Estate Commission or subject to the jurisdiction of the West Virginia Business Corporation Act is a violation of that person's licensing requirements or other statutory requirements.
 (e) A violation of this article does not affect the validity of a sale in favor of a bona fide purchaser and any of its encumbrancers for value without notice.
 (f) A third-party encumbrancer is not relieved of liability resulting from violations of section four, five, nine, thirteen, fourteen or nineteen of this article committed by that third-party encumbrancer, that occurred prior to the sale of the subject property to the bona fide purchaser.
 (g) The rights, remedies, and procedures provided by this section are in addition to and independent of any other rights, remedies, or procedures under any other law. Nothing in this section alters, limits or negates any other rights, remedies or procedures provided by law.
 (h) A court may award a prevailing borrower reasonable attorney's fees and costs in an action brought pursuant to this section. A borrower has prevailed for purposes of this subsection if the borrower obtained injunctive relief or was awarded damages pursuant to this section.
 (i) This section becomes operative on January 1, 2018.
§31-17B-17. First lien mortgages and deeds of trust; termination date.
 (a) Unless otherwise provided, subdivision (5), subsection (a) section ten and sections four, five, six, seven, eight, nine, eleven, twelve, thirteen, fourteen and twenty of this article apply only to first lien mortgages or deeds of trust that are secured by owner-occupied residential real property containing no more than four dwelling units. For these purposes, "owner-occupied" means that the property is the principal residence of the borrower and is security for a loan made for personal, family or household purposes.
  (b) This section remains in effect only until January 1, 2018, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2018, deletes or extends that date.
§31-17B-18. Owner-occupied residential real property; effective date.
  (a) Unless otherwise provided, sections four, five, nine thirteen and fourteen apply only to first lien mortgages or deeds of trust that are secured by owner-occupied residential real property containing no more than four dwelling units. For these purposes, "owner-occupied" means that the property is the principal residence of the borrower and is security for a loan made for personal, family or household purposes.
  (b) This section becomes operative on January 1, 2018.
§31-17B-19. Notice of default; notice of sale; assignment of a deed of trust; civil penalty; termination date.
 (a) A declaration recorded pursuant to section four or five of this article or, until January 1, 2018, pursuant to section six of this article, a notice of default, notice of sale, assignment of a deed of trust or substitution of trustee recorded by or on behalf of a mortgage servicer in connection with a foreclosure subject to section ten of this article, or a declaration or affidavit filed in any court relative to a foreclosure proceeding shall be accurate and complete and supported by competent and reliable evidence.
 (b) Before recording or filing any of the documents described in subsection (a) of this section, a mortgage servicer shall ensure that it has reviewed competent and reliable evidence to substantiate the borrower's default and the right to foreclose, including the borrower's loan status and loan information.
 (c) Until January 1, 2018, any mortgage servicer that engages in multiple and repeated uncorrected violations of subsection (b) of this section in recording documents or filing documents in any court relative to a foreclosure proceeding is liable for a civil penalty of up to $7,500 per mortgage or deed of trust in an action brought by a government entity or in an administrative proceeding brought against a respective licensee, in addition to any other remedies available to these entities. This subsection becomes inoperative on January 1, 2018.
§31-17B-20. First lien loan modification; foreclosure prevention alternative; applicability; exceptions; requirements; termination date.
     (a) (1) If a borrower submits a complete application for a first lien loan modification offered by, or through, the borrower's mortgage servicer, a mortgage servicer, trustee, mortgagee, beneficiary or authorized agent may not record a notice of default, notice of sale or conduct a trustee's sale while the complete first lien loan modification application is pending, and until the borrower has been provided with a written determination by the mortgage servicer regarding that borrower's eligibility for the requested loan modification.
     (2) If a foreclosure prevention alternative has been approved in writing prior to the recordation of a notice of default, a mortgage servicer, mortgagee, trustee, beneficiary or authorized agent may not record a notice of default under either of the following circumstances:
     (A) The borrower is in compliance with the terms of a written trial or permanent loan modification, forbearance or repayment plan; or
     (B) A foreclosure prevention alternative has been approved in writing by all parties, including, for example, the first lien investor, junior lienholder and mortgage insurer, as applicable, and proof of funds or financing has been provided to the servicers.
     (3) If a foreclosure prevention alternative is approved in writing after the recordation of a notice of default, a mortgage servicer, mortgagee, trustee, beneficiary or authorized agent may not record a notice of sale or conduct a trustee's sale under either of the following circumstances:
     (A) The borrower is in compliance with the terms of a written trial or permanent loan modification, forbearance or repayment plan; or
     (B) A foreclosure prevention alternative has been approved in writing by all parties, including, for example, the first lien investor, junior lienholder and mortgage insurer, as applicable, and proof of funds or financing has been provided to the servicers.
     (b) This section applies only to a depository institution chartered under state or federal law, that, during its immediately preceding annual reporting period, as established with its primary regulator, foreclosed on one hundred seventy-five or fewer residential real properties, containing no more than four dwelling units, that are located in West Virginia.
     (c) Within three months after the close of any calendar year or annual reporting period as established with its primary regulator during which an entity or person described in subsection (b) exceeds the threshold of one hundred seventy-five specified in subsection (b) of this section, that entity shall notify its primary regulator, in a manner acceptable to its primary regulator, and any mortgagor or trustor who is delinquent on a residential mortgage loan serviced by that entity of the date on which that entity will be subject to sections six, seven, eight, nine, eleven, twelve, thirteen, fourteen, fifteen and sixteen, which date is the first day of the first month that is six months after the close of the calendar year or annual reporting period during which that entity exceeded the threshold.
     (d) For purposes of this section, an application is complete when a borrower has supplied the mortgage servicers with all documents required by the mortgage servicers within the reasonable time frames specified by the mortgage servicers.
     (e) If a borrower has been approved in writing for a first lien loan modification or other foreclosure prevention alternative, and the servicing of the borrower's loan is transferred or sold to another mortgage servicer, the subsequent mortgage servicer shall continue to honor any previously approved first lien loan modification or other foreclosure prevention alternative, in accordance with this article.
     (f) This section applies only to mortgages or deeds of trust described in sections seventeen and eighteen of this article.
  (g) This section remains in effect only until January 1, 2018, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2018, deletes or extends that date.
§31-17B-21. Trustee's deed; recording; violations; injunctive relief; damages; attorney's fees; applicability; exception; termination date.
 (a) (1) If a trustee's deed upon sale has not been recorded, a borrower may bring an action for injunctive relief to enjoin a material violation of section four, five, nineteen or twenty of this article.
 (2) Any injunction will remain in place and any trustee's sale shall be enjoined until the court determines that the mortgage servicer, mortgagee, beneficiary, or authorized agent has corrected and remedied the violation or violations giving rise to the action for injunctive relief. An enjoined entity may move to dissolve an injunction based on a showing that the material violation has been corrected and remedied.
 (b) After a trustee's deed upon sale has been recorded, a mortgage servicer, mortgagee, beneficiary or authorized agent is liable to a borrower for actual economic damages resulting from a material violation of section four, five, nineteen or twenty of this article by that mortgage servicer, mortgagee, beneficiary or authorized agent where the violation was not corrected and remedied prior to the recordation of the trustee's deed upon sale. If the court finds that the material violation was intentional or reckless or resulted from willful misconduct by a mortgage servicer, mortgagee, beneficiary or authorized agent, the court may award the borrower the greater of treble actual damages or statutory damages of $50,000.
 (c) A mortgage servicer, mortgagee, beneficiary, or authorized agent is not liable for any violation that it has corrected and remedied prior to the recordation of the trustee's deed upon sale, or that has been corrected and remedied by third parties working on its behalf prior to the recordation of the trustee's deed upon sale.
 (d) A violation of section four, five, nineteen or twenty of this article by a person licensed by the Commissioner of Banking, the West Virginia Real Estate Commission or subject to the jurisdiction of the West Virginia Business Corporation Act is a violation of that person's licensing requirements or other statutory requirements.
 (e) A violation of this article does not affect the validity of a sale in favor of a bona fide purchaser and any of its encumbrancers for value without notice.
 (f) A third-party encumbrancer is not relieved of liability resulting from violations of section four, five, nineteen or twenty of this article committed by that third-party encumbrancer, that occurred prior to the sale of the subject property to the bona fide purchaser.
 (g) The rights, remedies and procedures provided by this section are in addition to and independent of any other rights, remedies, or procedures under any other law. Nothing in this section may be construed to alter, limit, or negate any other rights, remedies, or procedures provided by law.
 (h) A court may award a prevailing borrower reasonable attorney's fees and costs in an action brought pursuant to this section. A borrower has prevailed for purposes of this subsection if the borrower obtained injunctive relief or damages pursuant to this section.
 (i) This section applies only to entities described in subsection (b), section twenty of this article.
 (j) This section remains in effect only until January 1, 2018, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2018, deletes or extends that date.


 NOTE: The purpose of this bill is to create The West Virginia Homeowner Bill of Rights. The bill states legislative findings and its purpose in relation to foreclosures in the state generally. The bill requires mortgage servicers to contact the borrower prior to filing a notice of default. The bill requires mortgage servicers to explore options for the borrower to avoid foreclosure. The bill requires the borrower to be provided with specified information in writing prior to recordation of a notice of default. The bill establishes additional procedures to be followed regarding a first lien loan modification application and the denial of an application. The bill provides for a borrower's right to appeal a denial. The bill requires a written notice to the borrower after the postponement of a foreclosure sale in order to advise the borrower of any new sale date and time. The bill prohibits the collection of application fees and the collection of late fees while a foreclosure prevention alternative is being considered. The bill authorizes the greater of treble actual damages or $50,000 in statutory damages if a violation is found to be intentional or reckless or resulted from willful misconduct. The bill provides that violations by licensees of certain state agencies are also violations of those respective licensing laws. The bill requires a mortgage servicer who conducts more than one hundred seventy-five foreclosure sales per year or annual reporting period to establish a single point of contact and provide the borrower with one or more direct means of communication with the single point of contact. The bill requires that, before recording or filing any of those documents, a mortgage servicer shall ensure that it has reviewed competent and reliable evidence to substantiate the borrower's default and the right to foreclose, including the borrower's loan status and loan information. The bill authorizes administrative enforcement against licensees by certain state agencies. The bill defines terms. The bill sets forth requirements. The bill establishes effective and termination dates. The bill authorizes rule-making.


 This article is new; therefore, strike-throughs and underscoring have been omitted.
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