[Third Reprint]

ASSEMBLY, No. 4063

STATE OF NEW JERSEY

213th LEGISLATURE

 

INTRODUCED JUNE 8, 2009

 


 

Sponsored by:

Assemblywoman BONNIE WATSON COLEMAN

District 15 (Mercer)

Assemblywoman  MILA M. JASEY

District 27 (Essex)

Assemblywoman  ELEASE EVANS

District 35 (Bergen and Passaic)

 

Co-Sponsored by:

Assemblywomen Spencer, Rodriguez, Senators Rice and Ruiz

 

 

 

 

SYNOPSIS

     Establishes the “New Jersey Foreclosure Fairness Act”; imposes additional foreclosure notice requirements; amends “Mortgage Stabilization and Relief Act.”

 

CURRENT VERSION OF TEXT

     As amended by the General Assembly on January 7, 2010.

  


An Act concerning foreclosure on residential properties, supplementing and amending various sections of the statutory law.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    (New section ) This act shall be known and may be cited as the “New Jersey Foreclosure Fairness Act.”

 

     2.    (New section) a.  A person who takes title, as a result of a sheriff’s sale or deed in lieu of foreclosure, to a residential property containing one or more dwelling units occupied by residential tenants, 1[shall provide notice, no later than five business days after the sale, via certified and regular mail, to the tenants in substantially the following form], shall provide notice to the tenants, in both English and Spanish, no later than 3[ten] 103 business days after the transfer of title, in accordance with the provisions of subsection c. of this section.  The notice shall be in the following form1 :

NOTICE TO TENANTS

     THE FORMER OWNER OF . . . . . . . . . . . . (insert property address) HAS LOST THE PROPERTY AS A RESULT OF A FORECLOSURE.  1[IF YOU ARE A TENANT AT . . . . . . . . . (insert property address) YOU HAVE THE RIGHT TO REMAIN IN YOUR HOUSE OR APARTMENT.  THE NEW OWNER CANNOT FORCE YOU TO MOVE OUT BECAUSE OF THE FORECLOSURE.

     YOU ARE PROTECTED BY NEW JERSEY'S ANTI-EVICTION ACT, N.J.S.A. 2A:18-61.1 ET SEQ.] FROM THE TIME YOU RECEIVE THIS AND UNTIL FURTHER NOTICE, YOU SHOULD PAY RENT TO ……(insert name and address of person to whom rent is due) PLEASE SEND RENT BY ……(insert method of transmission) ON THE ……(insert day) OF EACH MONTH.

     WITH LIMITED EXCEPTIONS, THE NEW JERSEY ANTI-EVICTION ACT, N.J.S.A.2A:18-61.1 ET 3[AL.] SEQ.3, PROTECTS YOUR RIGHT TO REMAIN IN YOUR HOME.  FORECLOSURE ALONE IS NOT GROUNDS FOR EVICTION OF A TENANT. YOU ARE PROTECTED BY THIS LAW EVEN IF YOU DO NOT HAVE A WRITTEN LEASE.1

     THE NEW OWNER CANNOT EVICT YOU WITHOUT
"GOOD CAUSE," AS DETERMINED BY A COURT.  1[THIS MEANS THAT ONLY A SHERIFF’S OFFICER WITH A COURT ORDER MAY REMOVE YOU FROM THE PREMISES, AND ONLY AFTER YOU HAVE BEEN GIVEN THE OPPORTUNITY TO DEFEND YOURSELF AGAINST EVICTION IN COURT.]1 EXAMPLES OF "GOOD CAUSE" ARE FAILURE TO PAY RENT, WILLFULLY DAMAGING THE PREMISES, OR PERSONAL OCCUPANCY BY THE NEW OWNER OF THE HOUSE OR APARTMENT THAT YOU NOW LIVE IN.

     1[IT IS ILLEGAL FOR THE NEW OWNER TO TRY] A RESIDENTIAL TENANT IN NEW JERSEY CAN BE EVICTED ONLY THROUGH A COURT PROCESS.  ONLY A COURT OFFICER WITH A COURT ORDER MAY REMOVE YOU FROM THE PREMISES, AND ONLY AFTER YOU HAVE BEEN GIVEN THE OPPORTUNITY TO DEFEND YOURSELF IN COURT.

     INDIVIDUALS CAN BE SUBJECT TO BOTH CIVIL AND CRIMINAL PENALTIES FOR TRYING1 TO FORCE YOU TO LEAVE YOUR HOME IN ANY OTHER MANNER, INCLUDING SHUTTING OFF UTILITIES OR 1OTHER VITAL SERVICE OR1 FAILING TO MAINTAIN THE PREMISES.  1[IF THE NEW OWNER PRESSURES YOU TO LEAVE, CONSULT WITH AN ATTORNEY OR FILE A COMPLAINT WITH YOUR LOCAL PROSECUTOR.] YOU MAY, HOWEVER, ACCEPT FINANCIAL COMPENSATION FOR LEAVING VOLUNTARILY IF THE NEW OWNER OFFERS SUCH COMPENSATION.

     IF SOMEONE IS PRESSURING YOU TO LEAVE, CONSULT WITH AN ATTORNEY.1

     b.  1(1)1      The notice required pursuant to subsection a. of this section shall be printed in no less than 1[16]141 point bold point type 1[on heavy stock]1, 1on paper1 at least eight and one-half inches by 11 inches in size, and shall contain contact information, including the name, mailing address, e-mail address, and telephone number of the new owner or a person authorized to act on behalf of the new owner.

     1(2)  The Department of Community Affairs shall prepare and make available for distribution, both in print and in an easily printable format on the department’s Internet website, a notice in English with a Spanish translation that may be used by the new owner or person authorized to act on behalf of the new owner to satisfy the notice requirements of this section.1

     c.  2[The] (1) In buildings containing 10 or fewer dwelling units, the2 new owner shall make a 1[diligent] good faith1 effort to obtain the names 1[and addresses]1 of all tenants occupying the property for which a notice is required pursuant to subsection a. of this section. 1The notice shall be addressed to tenants by name; provided, however, that in the event a good faith search fails to identify the tenant by name, the new owner shall address the notice required pursuant to subsection a. of this section to “Tenant.”1 The new owner shall post the notice 1[, required pursuant to subsection a. of this section,]1 prominently on the front door of each tenant’s unit 1and send the notice to each tenant via certified and regular mail1.

     2(2) In a residential property containing more than 10 dwelling units, the new owner shall provide notice to tenants occupying the property for which notice is required pursuant to subsection a. of this section by causing a copy of the notice to be conspicuously displayed in a prominent place in a common area of each residential building or structure on the property. If there is no common area, the notice shall be posted in a conspicuous location in each building or structure on the premises, including, but not limited to the walls of the front vestibule or any foyer or hallway near the main entrance of the building or structure.2

     d.  Any person taking title to the residential property as a result of a sheriff’s sale or deed in lieu of foreclosure 1, or that person’s agent or employee,1 shall 1[include] provide1 a copy of the notice as set forth in subsection a. of this section 1[in any] with the initial and final1 written 1or verbal1 communication to a tenant for the purposes of inducing a tenant to vacate the property 1in accordance with the provisions of section 3 of P.L.    , c.   (C 3.3    ) (pending before the Legislature as this bill)1.

     e.  Service on any tenant of a summons and complaint in an action to foreclose 1a mortgage1 on any residential property by any person, or 1[any] the initial1 written 1or verbal1 communication by 1[any person] a foreclosing creditor1 to a tenant in a residential property 1subject to ongoing foreclosure proceedings, or any written or verbal communication1 that1[.]1 seeks to induce the tenant to vacate the property prior to the transfer of the property through sheriff’s sale or a deed in lieu of foreclosure, shall include 1[a copy of the notice set forth in subsection a. of this section except that the first sentence shall read:

     A FORECLOSURE ACTION HAS BEEN INITIATED ON  . . . . . (insert address of property) AND THE OWNERSHIP OF THE PROPERTY MAY CHANGE AS A RESULT] a copy of the notice 3[set forth in the "Residential Tenants' Rights During Foreclosure"] regarding residential tenant rights during foreclosure3 as required by the Rules Governing the Courts of the State of New Jersey, as adopted by the Supreme Court of New Jersey1.

     f.  Any person, 1[their] or that person’s1 agent 1[,]1 or employee, who violates the provisions of this section shall be subject to the 1same1 civil remedies 1as are1 provided for in subsection a. of 1section 3 of1 P.L.1975, c.311 (C.2A:18-61.6) 1, or, at the tenant's sole discretion, damages in the amount of $2,000 per violation, plus attorney’s fees and costs.  Nothing in this subsection shall limit the liability, either civil or criminal, of a person, or a person’s agent or employee, who violates any other law or regulation1.

 

     3.    (New section)  a.  No person, 1[their] or the person’s1 agent or employee, who has filed a complaint in an action to foreclose 1a mortgage1 on a residential property, 1as described in section 2 of P.L.    , c.   (C.        ) (pending before the Legislature as this bill),1 or who takes title to 1[any] a1 residential property as a result of a sheriff’s sale or other transaction following the filing of a complaint in an action to foreclose a mortgage on the property shall make any communication to induce the tenant to vacate the property except through a bona fide monetary offer, which shall be made in accordance with the provisions of subsections d. and e. of section 2 of P.L.    , c.    (C.        ) (pending before the Legislature as this bill). 1A tenant shall have five business days from the date of receipt of any bona fide monetary offer to vacate the property in order to accept or reject the offer.  An acceptance of an offer by a tenant shall be in writing, and include an affirmative acknowledgement of the date of receipt of the offer, and an understanding that the tenant had a five-day review period as required by this subsection to accept or reject the offer presented. 1

     b.    No person, 1[their] or the person’s1 agent or employee, who has filed a complaint in an action to foreclose 1a mortgage on a residential property, as described in section 2 of P.L.   , c.   (C.    ) (pending before the Legislature as this bill), or who takes title to a residential property as a result of a sheriff's sale or other transaction following the filing of a complaint in an action to foreclose a mortgage on the property1 shall 1, during the pendency of the foreclosure proceeding or within one year of the transfer of title following such proceeding,1 take any action placing pressure on a tenant to accept any offer to vacate the property, including, but not limited to:

     (1)   Mischaracterizing or misrepresenting the rights of the tenant under the Anti-Eviction Act, P.L.1974, c.49 (C.2A:18-61.1 et seq.), or any other State law or municipal ordinance;

     (2)   1[Stating the actions the owner may take against the tenant or implying] Implying1 the tenant is obligated to accept an offer or implying consequences against the tenant for failing to accept an offer;

     (3)   Any form of tenant harassment, including, but not limited to1,1 discontinuance of electricity, heat, or other utilities, failure to maintain the common areas or facilities of the property, or 1any other1 failure to 1[make repairs in a timely and workmanlike fashion] maintain the premises in a habitable condition1;

     (4)   1[Any rent increase in violation of a municipal rent control or rent leveling ordinance, or in the event the property is not subject to rent control, any rent increase in excess of the average of the previous two years’ rent increases; provided, however, that the increase is imposed no later than one year after the date the new owner took title to the property] Implementing an increase in rent in excess of any governing municipal rent control or rent leveling ordinance, or in the event the property is not subject to rent control, an increase in rent exceeding the limitation imposed by the Anti-Eviction Act, P.L.1974, c.49 (C.2A:18-61.1 et seq.) or any other State or federal law or municipal ordinance1.

     c.     Any person, their agent or employee, who violates the provisions of this section shall be subject to the civil remedies provided for in subsection a. of 1section 3 of1 P.L.1975, c.311 (C.2A:18-61.6) 1, or, at the tenant's sole discretion, damages in the amount of $2,000 per violation, plus attorney’s fees and costs.  Nothing in this subsection shall limit the liability, either civil or criminal, of a person, or a person’s agent or employee, who violates any other law or regulation1.

 

     1[4. Section 15 of P.L.2008, c.127 (C.46:10B-49) is amended to read as follows:

     15.  a.  A creditor that institutes a mortgage foreclosure action in the Superior Court of New Jersey shall report to the Department of Banking and Insurance, on a quarterly basis and on a form promulgated by the department, information about the number of mortgage foreclosure actions filed by the creditor in the State.

     b.    The Department of Banking and Insurance shall produce a report, on a quarterly basis; detailing information about mortgage foreclosures filed by creditors in each [county] municipality of the State, and shall make the report available to the public on its website.  The report shall describe the type of mortgage being foreclosed on based on the following categories:

     (1)   prime rate mortgages foreclosed upon;

     (2)   subprime rate mortgages foreclosed upon;

     (3)   fixed rate mortgages foreclosed upon;

     (4)   adjustable rate mortgages foreclosed upon;

     (5)   nonconforming mortgages, as defined by Fannie Mae, Freddie Mac, or their successors;

     (6)   mortgages insured by the Federal Housing Administration foreclosed upon;

     (7)   mortgages insured by the Veteran's Administration foreclosed upon; and

     (8)   any other category of classification the department deems appropriate to effectuate the purpose of this section.

     c.     The Department of Banking and Insurance, pursuant to the "Administrative Procedure Act," P.L.1986, c.410 (C.52:14B-1 et seq.) shall adopt regulations necessary to effectuate the purpose of this section.

(cf: P.L.2008, c.127, s.15)]1

 

     1[5. Section 16 of P.L.2008, c.127 (C.46:10B-50) is amended to read as follows:

     16.  a.  (1) A creditor that files, pursuant to the "Fair Foreclosure Act," P.L.1995, c.244 (C.2A:50-53 et al.), a complaint of foreclosure on a high risk mortgage loan, shall grant the borrower a six-month period of forbearance, upon request of the borrower, to pursue a loan workout, loan modification, refinancing, or other alternative through mediation sponsored by the Administrative Office of the Courts.  During the six-month forbearance period, the interest rate on the [covered] mortgage loan shall not increase and the creditor shall take no further action to pursue foreclosure of the property. Nothing in this subsection shall constitute a limitation on the ability of the creditor and borrower to participate in mediation sponsored by the Administrative Office of the Courts or enter into an agreement as a result of that mediation pursuant to subsection b. of this section.

     As used in this section:

     "Forbearance" means a period of six months during which the judicial foreclosure proceedings filed by the creditor against the borrower are suspended[; however the borrower is obligated to continue making monthly mortgage payments].

     "High Risk Mortgage" means the first mortgage loan that has one or more of the following characteristics:

     is an interest only mortgage with a future interest reset rate;

     has a reset mortgage interest rate that increases the interest rate;

     contains a payment option plan or a "pick a payment" plan;

     contains a negative amortization schedule;

     is a subprime mortgage, which means a consumer credit transaction, secured by the consumer’s principal dwelling, with an annual percentage rate that exceeds the average prime offer rate for a comparable transaction, as of the date the interest rate is set, by 1.5 or more percentage points for loans secured by a first lien on a dwelling, or by 3.5 or more percentage points for loans secured by a subordinate lien on a dwelling;

     contains an enforceable prepayment penalty; or

     is a high cost home loan as defined in section 3 of the "New Jersey Home Ownership Security Act of 2002," P.L.2003, c.64 (C.46:10B-24).

     (2)   Upon serving the summons and complaint in a foreclosure action, the creditor shall notify the borrower of the borrower’s right to forbearance as provided for in this section, and, upon receipt of written request by the borrower, within 30 days of the receipt of the summons and complaint, the creditor shall grant the borrower a period of forbearance, beginning on the date the creditor receives the borrower’s request.

     (3)   The notice of the borrower’s right to forbearance shall include the following information:

     (a)   whether the loan being foreclosed upon is eligible to receive forbearance;

     (b)   that the borrower has the right to request the period of forbearance in writing no later than 30 days after receipt of the summons and complaint;

     (c)   the full address and other contact information to which the request for forbearance may be sent.

     (4)   Upon receipt of a request for forbearance, the creditor shall advise the court to place a six-month stay on the foreclosure action.

     b.    Upon filing of a complaint for foreclosure, and the beginning of the six-month forbearance period, the borrower and creditor shall participate in mediation sponsored by the Administrative Office of the Courts; provided, however, that the inability of the borrower to participate in mediation as a result of circumstances beyond the borrower’s control shall not affect the borrower’s continued eligibility for forbearance.

     c.     If the borrower ceases to occupy the property at any time subsequent to the period of forbearance under this section, the creditor may notify the court, and upon notification the period of forbearance shall be deemed to have ended.

     d.    The provisions of this section shall expire two years following the effective date of [P.L.2008, c.127] P.L.    , c.    (C.      ) (pending before the Legislature as this bill).

(cf: P.L.2008, c.127, s.16)]1

 

     14.  Section 15 of P.L.2008, c.127 (C.46:10B-49) is amended to read as follows:

     15.  a. [A] 2(1)2 Except as provided in paragraph (2) of this subsection, a creditor that institutes a mortgage foreclosure action in the Superior Court of New Jersey shall report to the Department of Banking and Insurance, on a quarterly basis and on a form promulgated by the department, information about the number of mortgage foreclosure actions filed by the creditor in the State.

     (2)  2[If, following the effective date of P.L.    , c.   (C.        ) (pending before the Legislature as this bill),] When2 a creditor or other person is required by any Rule of Court or otherwise by law to file electronically with the Superior Court of New Jersey 2[a summons and complaint] pleadings2 in an action to foreclose on a mortgage, 2[along with any other information or materials regarding that action as required by that rule or other law, then the department shall not be required to continue to promulgate a form for making reports to the department, and the creditor or other person shall not be required to make any report to the department, as set forth under to paragraph (1) of this subsection.] and the Administrative Office of the Courts is capable of collecting and transmitting the data set forth in paragraphs (1) through (8) of subsection b. of this section in electronic form, the creditor or other person shall transmit the data to the Superior Court, in a manner prescribed by the Superior Court, as part of the pleadings in an action to foreclose a mortgage.2  The Administrative Office of the Courts 2[, pursuant to the Rule of Court or other law,]2 shall 2[instead]2 collect the 2electronically submitted2 data 2[required under paragraph (1) of this subsection from each Superior Court, in addition to collecting any other information or materials required by that rule or other law] and transmit it to the Department of Banking and Insurance, which shall produce and make available on its website quarterly reports, as set forth in subsection b. of this section2.

     b. [The] 2[Except as provided herein, the] The2 Department of Banking and Insurance shall produce a report, on a quarterly basis [;] , detailing information about mortgage foreclosures filed by creditors in each county of the State, and shall make the report available to the public on its website.  The report shall describe the type of mortgage being foreclosed on based on the following categories:

     (1) prime rate mortgages foreclosed upon;

     (2) subprime rate mortgages foreclosed upon;

     (3) fixed rate mortgages foreclosed upon;

     (4) adjustable rate mortgages foreclosed upon;

     (5) nonconforming mortgages, as defined by Fannie Mae, Freddie Mac, or their successors;

     (6) mortgages insured by the Federal Housing Administration foreclosed upon;

     (7) mortgages insured by the Veteran's Administration foreclosed upon; and

     (8) any other category of classification the department deems appropriate to effectuate the purpose of this section.

     2[If, following the effective date of P.L.    , c.   (C.        ) (pending before the Legislature as this bill), the Administrative Office of the Courts collects data on summonses and complaints in actions to foreclose mortgages along with other information and materials pursuant to any Rule of Court or otherwise by law, as set forth under paragraph (2) of subsection a. of this section, and the information collected pursuant to that rule or other law includes at least the information set forth under paragraphs (1) through (7) of this subsection, then the Administrative Office of the Courts, and not the department, shall produce and make publicly available on its Internet website the quarterly report required by this subsection.]2

     c.  The Department of Banking and Insurance, pursuant to the "Administrative Procedure Act," P.L.1986, c.410 (C.52:14B-1 et seq.) shall adopt regulations necessary to effectuate the purpose of this section.  Following the enactment of P.L.    , c.   (C.       ) (pending before the Legislature as this bill), the department, in consultation with the Administrative Office of the Courts, shall adopt regulations necessary to effectuate the purpose of this section.1

(cf: P.L.2008, c.127, s.15)

 

     1[6.] 5.1     Section 17 of P.L.2008, c.127 (C.46:10B-51) is amended to read as follows:

     17.  a.  (1) A creditor serving a [notice of intention to foreclose] summons and complaint in an action to foreclose on a mortgage on residential property in this State shall [serve] 1, within 10 days of serving the summons and complaint,1 notify the [public officer] municipal clerk of the municipality in which the property is located [, or, if the municipality has not designated a public officer pursuant to P.L.1942, c.112 (C.40:48-2.3 et seq.), the municipal clerk with a copy of the notice at the same time it is served on the owner of the] that 1[a foreclosure complaint has] a summons and 3[complain] complaint3 in an action to foreclose a mortgage1 3has3 been filed against the subject property.  The notice 1shall contain the name and contact information for the representative of the creditor who is responsible for receiving complaints of property maintenance and code violations,1  may 1[be effectuated via electronic communication] contain information about more than one property, and shall be provided by mail or electronic communication1, at the discretion of the municipal clerk1.  If the municipality has appointed a public officer pursuant to P.L.1942, c.112 (C.40:48-2.3 et seq.), the municipal clerk shall forward a copy of the notice to the public officer 1or shall otherwise provide it to any other local official responsible for administration of any property maintenance or public nuisance code1.

     1[(2)]1       In the event that the property being foreclosed is an affordable unit pursuant to the "Fair Housing Act," P.L.1985, c.222 (C.52:27D-301 et al.), then the creditor shall identify that the property is subject to the "Fair Housing Act."  1[This notice requirement may be effectuated via electronic communication to the municipality at the time the complaint for foreclosure is filed.]1 

     The 1[copy served on the public officer or municipal clerk] notice1 shall 1also1 include the 1street address, lot and block number of the property, and the1 full name and contact information of an individual located within the State who is authorized to accept service on behalf of the creditor.  1The notice shall be provided to the municipal clerk within 10 days of service of a summons and complaint in an action to foreclose a mortgage against the subject property.1

     1[(3)] (2)1 Within 30 days following the effective date of P.L.    , c.    (C.    ) (pending before the Legislature as this bill), any creditor that has initiated a foreclosure proceeding on any residential property which is pending in Superior Court shall provide to the municipal clerk of the municipality in which the property is located, a listing of all residential properties in the municipality for which the creditor has foreclosure actions pending by street address and lot and block number.  If the municipality has appointed a public officer pursuant to P.L.1942, c.112 (C.40:48-2.3 et seq.), the municipal clerk shall forward a copy of the notice to the public officer, or shall otherwise provide it to any other local official responsible for administration of any property maintenance or public nuisance code.1

     b.    If the owner of a residential property vacates 1or abandons1 any property on which a foreclosure proceeding has been initiated or if a residential property becomes vacant at any point subsequent to the creditor's filing the 1[notice of intention to foreclose] summons and complaint in an action to foreclose a mortgage against the subject property1, but prior to vesting of title in the creditor or any other third party, and the property is found to be a nuisance or in violation of any applicable State or local code, the local public officer 1[or] ,1 municipal clerk 1, or other authorized municipal official1 shall notify the creditor, which shall have the responsibility to abate the nuisance or correct the violation in the same manner and to the same extent as the title owner of the property, to such standard or specification as may be required by 1[the public officer or municipal clerk] State law or municipal ordinance1.

     c.     If the municipality expends public funds in order to abate a nuisance or correct a violation on a residential property in situations in which the creditor was given notice pursuant to the provisions of subsection b. of this section but failed to abate the nuisance or correct the violation as directed, the 1[public officer or municipal clerk] municipality1 shall have the same recourse against the creditor as it would have against the title owner of the property, including but not limited to the recourse provided under section 23 of P.L.2003, c.210 (C.55:19-100).

(cf: P.L.2008, c.127, s.17)

 

     16.   (New section)  The provisions of any regulation, ordinance, rule, or resolution of any municipality, county or other subdivision of the State, or any agency or instrumentality of that municipality, county or other subdivision, relating to foreclosure practices, or the extension, delay, forbearance or imposition of moratorium periods concerning foreclosures, are superseded by the provisions of the “Save New Jersey Homes Act of 2008,” P.L.2008, c.86 (C.46:10B-36 et seq.) and the forbearance and nuisance abatement provisions of the “Mortgage Stabilization and Relief Act,” P.L.2008, c.127 (C.55:14K-82 et al.).1

 

     7.    1Section 5 of this1 act shall take effect 1[immediately] on the 10th day after the date of enactment, and the remainder of the act shall take effect on the 30th day after the date of enactment1.