§ 49-31n — Mediation period. Information required. Termination of program.

Connecticut § 49-31n

• Jurisdiction: Connecticut
• Title 49: Mortgages and Liens
• Ch. 846: Mortgages

Text

(a) For any action for the foreclosure of a mortgage on residential real property with a return date during the period from July 1, 2009, to June 30, 2029, inclusive, or for any action for the foreclosure of a mortgage on real property owned by a religious organization with a return date during the period from October 1, 2011, to June 30, 2029, inclusive, the mediation period under the Ezequiel Santiago Foreclosure Mediation Program established pursuant to section 49-31m shall commence when the court sends notice to each appearing party scheduling the first foreclosure mediation session. The mediation period shall conclude not later than the conclusion of the third mediation session between the mortgagor and mortgagee or seven months after the return date, whichever is earlier, except that the court may, in its discretion, for good cause shown, upon the motion of any party or request by the mediator, extend the mediation period subject to the provisions of subsection (i) of this section or shorten the mediation period. (b) Each mediation session shall be conducted in person, unless the mediator elects to conduct the mediation session on a virtual platform or grants permission to a party, or to the party's counsel, to appear at the mediation session on a virtual platform approved by the mediator. In determining whether to conduct a mediation session on a virtual platform or to grant permission to appear at a mediation session on a virtual platform, the mediator may consider the desires of the parties and the parties' counsel, the technological and physical capabilities of the parties and the parties' counsel and the objectives of the mediation program. The mortgagor and mortgagee shall appear at each mediation session, in person or on a virtual platform, as applicable, and shall have the ability to mediate, except that (1) if a party is represented by counsel, the party's counsel may appear in lieu of the party to represent the party's interests at the mediation, provided the party has the ability to mediate and the party is available (A) during the mediation session by telephone, and (B) to participate in the mediation session by speakerphone or teleconference, provided an opportunity is afforded for confidential discussions between the party and party's counsel, (2) following the initial mediation session, if there are two or more mortgagors who are self-represented, only one mortgagor shall be required to appear at each subsequent mediation session unless good cause is shown, provided the other mortgagors are available (A) during the mediation session, and (B) to participate in the mediation session by speakerphone or teleconference, (3) if a party suffers from a disability or other significant hardship that imposes an undue burden on such party to appear in person, the mediator may grant permission to such party to participate in the mediation session by telephone, and (4) a mortgagor may be excused from appearing at the mediation session if cause is shown that the presence of such mortgagor is not needed to further the interests of mediation. Such cause may include, but is not limited to, the mortgagor no longer owning the home pursuant to a judgment of marital dissolution and related transfer via deed or no longer residing in the home or not being a necessary party to any agreement being contemplated in connection with the mediation. A mortgagor's spouse, who is not a mortgagor but who lives in the subject property, may appear at each mediation session, provided all appearing mortgagors consent, in writing, to such spouse's appearance or such spouse shows good cause for his or her appearance and the mortgagors consent, in writing, to the disclosure of nonpublic personal information to such spouse. If the mortgagor has submitted a complete package of financial documentation in connection with a request for a particular foreclosure alternative, the mortgagee shall have thirty-five days from the receipt of the completed package to respond with a decision and, if the decision is a denial of the request, provide the reasons for such denial. If the mortgagor has, in connection with a request for a foreclosure alternative, submitted a financial package that is not complete, or if the mortgagee's evaluation of a complete package reveals that additional information is necessary to underwrite the request, the mortgagee shall request the missing or additional information within a reasonable period of time of such evaluation. If the mortgagee's evaluation of a complete package reveals that additional information is necessary to underwrite the request, the thirty-five-day deadline for a response shall be extended but only for so long as is reasonable given the timing of the mortgagor's submission of such additional information and the nature and context of the required underwriting. Not later than the third business day after each mediation session, the mediator shall file with the court a report indicating, to the extent applicable, (A) the extent to which each of the parties complied with the requirements set forth in this subdivision, including the requirement to engage in conduct that is consistent with the objectives of the mediation program and to possess the ability to mediate, (B) whether the mortgagor submitted a complete package of financial documentation to the mortgagee, (C) a general description of the foreclosure alternative being requested by the mortgagor, (D) whether the mortgagor has previously been evaluated for similar requests, whether prior to mediation or in mediation, and, if so, whether there has been any apparent change in circumstances since a decision was made with respect to that prior evaluation, (E) whether the mortgagee has responded to the mortgagor's request for a foreclosure alternative and, if so, a description of the response and whether the mediator is aware of any material reason not to agree with the response, (F) whether the mortgagor has responded to an offer made by the mortgagee on a reasonably timely basis, and if so, an explanation of the response, (G) whether the mortgagee has requested additional information from the mortgagor and, if so, the stated reasons for the request and the date by which such additional information shall be submitted so that information previously submitted by the mortgagor, to the extent possible, may still be used by the mortgagee in conducting its review, (H) whether the mortgagor has supplied, on a reasonably timely basis, any additional information that was reasonably requested by the mortgagee, and, if not, the stated reason for not doing so, (I) if information provided by the mortgagor is no longer current for purposes of evaluating a foreclosure alternative, a description of the out-of-date information and an explanation as to how and why such information is no longer current, (J) if the mortgage is a federally backed mortgage loan, as defined in Section 4022 of P.L. 116-136, the history of the mortgagee's compliance with any obligation to notify the mortgagor of loss mitigation or foreclosure alternative options available for federally backed mortgage loans, including, without limitation, any such options required or made available pursuant to any order, directive or regulation issued by any federal governmental authority in response to COVID-19, as defined in subsection (d) of section 49-31 l , during the public health and civil preparedness emergencies declared by the Governor on March 10, 2020, or any extension of such declarations, (K) the history of foreclosure avoidance efforts voluntarily undertaken by the mortgagee with respect to the mortgagor, (L) whether the mortgagee has provided a reasonable explanation of the basis for a decision to deny a request for a loss mitigation option or foreclosure alternative and whether the mediator is aware of any material reason not to agree with that decision, (M) whether the mortgagee has complied with the time frames set forth in this subdivision for responding to requests for decisions, (N) if a subsequent mediation session is expected to occur, a general description of the expectations for such subsequent session and for the parties prior to such subsequent session and, if not otherwise addressed in the report, whether the parties satisfied the expectations set forth in previous reports, and (O) a determination of whether the parties will benefit from further mediation. The mediator shall deliver a copy of such report to each party to the mediation when the mediator files the report. The parties shall have the opportunity to submit their own supplemental information following the filing of the report, provided such supplemental information shall be submitted not later than five business days following the receipt of the mediator's report. Any request by the mortgagee to the mortgagor for additional or updated financial documentation shall be made in writing. The court may impose sanctions on any party or on counsel to a party if such party or such counsel engages in intentional or a pattern or practice of conduct during the mediation process that is contrary to the objectives of the mediation program. Any sanction that is imposed shall be proportional to the conduct and consistent with the objectives of the mediation program. Available sanctions shall include, but not be limited to, terminating mediation, ordering the mortgagor or mortgagee to mediate in person, forbidding the mortgagee from charging the mortgagor for the mortgagee's attorney's fees, awarding attorney's fees, and imposing fines. In the case of egregious misconduct, the sanctions shall be heightened. The court shall not award attorney's fees to any mortgagee for time spent in any mediation session if the court finds that such mortgagee has failed to comply with this subdivision, unless the court finds reasonable cause for such failure. (c) If the mediator reports to the court that the parties will not benefit from further mediation, the mediation period shall terminate automatically. If the mediator reports to the court after the first or second mediation session that the parties may benefit from further mediation, the mediation period shall continue. (d) If the mediation period concludes and certain issues have not been resolved pursuant to the mediation, the mediator may refer the mortgagor to any appropriate community-based services that are available in the judicial district, but any such referral shall not cause a delay in the mediation process. (e) The Chief Court Administrator shall establish policies and procedures to implement this section. Such policies and procedures shall, at a minimum, provide that the mediator shall advise the mortgagor at the first meeting required by subsection (d) of section 49-31 l that: (1) Such mediation does not suspend the mortgagor's obligation to respond to the foreclosure action beyond the limited time frame described in subsection (f) of section 49-31 l ; and (2) a judgment of strict foreclosure or foreclosure by sale may cause the mortgagor to lose the residential real property or real property owned by a religious organization to foreclosure. (f) In no event shall any determination issued by a mediator under this program form the basis of an appeal of any foreclosure judgment. (g) The foreclosure mediation program shall terminate when all mediation has concluded with respect to any foreclosure action with a return date during the period from July 1, 2009, to June 30, 2029, inclusive. (h) At any time during the mediation period, the mediator may refer a mortgagor who is the owner-occupant of one-to-four family residential real property to the mortgage assistance programs, except that any such referral shall not prevent a mortgagee from proceeding to judgment when the conditions specified in subsection (f) of section 49-31 l have been satisfied. (i) (1) The mediation period shall conclude following the third mediation session or if more than seven months have elapsed since the return date. Not later than fifteen days following the conclusion of the mediation period, and any subsequent extended mediation sessions held in accordance with this subdivision, any party may move for, or the mediator may request, an extension of the mediation period. The court shall grant only one additional mediation session per motion or request upon a finding that it is highly probable the parties will reach an agreement through mediation. The court may also grant one additional mediation session per motion or request upon a finding that any party has engaged, either intentionally or by a pattern or practice, in conduct that is contrary to the objectives of the mediation program. The court shall make its ruling not later than twenty days after the filing of such motion or request, and no judgment of strict foreclosure or any judgment ordering a foreclosure sale shall be entered until (A) the court denies the motion or request, or (B) the conclusion of the subsequent extended mediation session, except as provided in subdivision (2) of this subsection. Upon the grant of an additional mediation session following the proper finding, the court shall establish a reasonably expeditious deadline for such subsequent extended mediation session to occur. Such extended mediation period shall conclude following such subsequent extended mediation session. (2) The mediation period may be extended for one additional mediation session without a hearing held pursuant to this subdivision provided all parties to the mediation agree that such parties would benefit from such a session and, in consultation with the mediator, establish a reasonably expeditious deadline for such session to take place. (3) To determine whether to extend mediation, the court may consider all matters that have arisen in the mediation, including, but not limited to, the number of motions to extend mediation, the reasons for which an agreement has not been reached, the objectives of the mediation program, the extent to which the parties will benefit from further mediation, the reports submitted by the mediator, papers submitted in connection with any motion, and any supplemental reports submitted by a party. The court shall articulate its reasons in the order granting or denying any such motion or request to extend mediation. (j) For any case pending as of October 1, 2013, in which mediation is ongoing, (1) if three or fewer sessions have been held, such case shall be treated as if no sessions have been held as of said date for purposes of subsection (i) of this section, and (2) if four or more sessions have been held, then any party or the mediator may move to terminate the mediation period or extend such period in accordance with subsection (i) of this section and, if no such motion to extend is made, the mediation period shall conclude after the third mediation session occurring after October 1, 2013.

Legislative History

(P.A. 08-176, S. 18; Nov. 24 Sp. Sess. P.A. 08-2, S. 8; P.A. 09-209, S. 35; P.A. 10-181, S. 2; P.A. 11-51, S. 32; 11-201, S. 4; P.A. 13-136, S. 4; P.A. 14-89, S. 38; P.A. 15-124, S. 3; P.A. 16-65, S. 88, 92; P.A. 18-53, S. 1; P.A. 19-145, S. 6; P.A. 21-44, S. 2.) History: P.A. 08-176 effective July 1, 2008; Nov. 24 Sp. Sess. P.A. 08-2 amended Subsec. (a) to designate existing provision re extension of mediation period as Subdiv. (1), increase extension period therein from ten to thirty days, add Subdiv. (2) re extension of mediation period by not more than thirty days upon written request of the mediator and make technical changes, and amended Subsec. (b) to extend deadline for first mediation session from ten to fifteen business days after court notice, effective November 25, 2008; P.A. 09-209 added new Subsec. (a) re applicable foreclosure mediation period for foreclosures of certain mortgages with a return date from July 1, 2008, to June 30, 2009, and from July 1, 2009, to June 30, 2010, redesignated existing Subsecs. (a) to (h) as Subsecs. (b)(1) to (b)(8), added provision re award of attorney's fees in redesignated Subsec. (b)(2), deleted provision re rules of court in redesignated Subsec. (b)(5), added new Subsec. (c) and made conforming changes, effective July 1, 2009; P.A. 10-181 extended termination date of foreclosure mediation program to July 1, 2012, and amended Subsecs. (b)(2) and (c)(2) by eliminating option of mortgagee being available during mediation session by electronic means and making a technical change, effective June 9, 2010; P.A. 11-51 substituted “2014” for “2012” in Subsecs. (a), (b)(7) and (c)(1) and (7), inserted “under this subsection” in Subsec. (b)(7), and made technical changes, effective July 1, 2011; P.A. 11-201 extended termination date of foreclosure mediation program to July 1, 2014, added provisions re actions for foreclosure of a mortgage on real property owned by a religious organization, amended Subsecs. (b)(2) and (c)(2) to require mortgagee to be available to participate by speakerphone, provided opportunity is afforded for confidential discussions between mortgagee and mortgagee's counsel and, following initial mediation session, if there are two or more mortgagors, to require only one mortgagor to appear in person at each subsequent session, provided other mortgagors are available during session and to participate by speakerphone and opportunity is afforded for confidential discussions among mortgagors and mortgagors' counsel, amended Subsecs. (b)(8) and (c)(8) to provide that mediator may refer mortgagor who is owner-occupant of one-to-four family residential real property to mortgage assistance programs, amended Subsec. (c)(2) to require first mediation session to be held not later than 35 days after court sends notice and the delivery to mortgagor of mortgagee's account history, contact information of individual able to process refinance or modification requests and reasonably prompt updates to information provided, amended Subsec. (c)(3) to add provision re failure to comply with documentation requirements not to be grounds for termination of mediation period before a second mediation is conducted, and amended Subsec. (c)(5) to include reference to limited time frame described in Sec. 49-31 l (c)(6), effective July 1, 2011; P.A. 13-136 amended Subsec. (b)(1) to change conclusion of the mediation period to not later than the conclusion of the third mediation session or 7 months after the return date, whichever is earlier, and to allow the court to extend the mediation period upon the motion of any party or the mediator in accordance with Subsec. (b)(9), amended Subsec. (b)(2) to allow party's counsel to appear in lieu of the party, provided, in part, the party has the ability to mediate and the mortgagor attends the first session in person, to replace “mortgagee” with “party”, to permit more than one mortgagor to appear in person after the initial mediation session, to delete proviso re opportunity for confidential discussions with regard to participating in sessions by speakerphone, to delete prohibition re awarding attorney's fees for time spent in mediation session, to add Subpara. (C) re parties who suffer from a disability or significant hardship, to permit a mortgagor's spouse who lives in the subject property to appear at each session, to add provisions re the mortgagee's responsibility to respond to mortgagor's package of financial documentation, the filing of the mediator's report, the parties' opportunity to submit supplemental information following the filing of the mediator's report, and the court's ability to impose sanctions, and to make technical changes, amended Subsec. (b)(3) to delete provisions re the mediator's determination 2 days after conclusion of the first mediation session, and to permit mediation to continue if the mediator reports to the court after the second mediation session that the parties may benefit from further mediation, amended Subsec. (b)(4) to delete provisions re mediator's report and to permit the mediator to refer to community-based services if the mediation period concludes and certain issues are unresolved, amended Subsec. (b)(5) to delete provision re mediation does not suspend the mortgagor's obligation to respond to the foreclosure action and make technical changes, amended Subsec. (b)(7) to change “2012” to “2014”, added Subsec. (b)(9) re conclusion and extension of the mediation period, added Subsec. (b)(10) re cases pending as of October 1, 2013, amended Subsec. (c)(1) to change conclusion of the mediation period to not later than the conclusion of the third mediation session or 7 months after the return date, whichever is earlier, and to allow the court to extend the mediation period upon the motion of any party or the mediator in accordance with Subsec. (c)(9), amended Subsec. (c)(2) to delete provisions re the first mediation session, to allow party's counsel to appear in lieu of the party, provided, in part, the party has the ability to mediate and the mortgagor attends the first session in person, to replace “mortgagee” with “party”, to permit more than one mortgagor to appear in person after the initial mediation session, to delete proviso re opportunity for confidential discussions with regard to participating in sessions by speakerphone, to delete prohibition re awarding attorney's fees for time spent in mediation session, to add Subpara. (C) re parties who suffer from a disability or significant hardship, to permit a mortgagor's spouse who lives in the subject property to appear at each session, to add provisions re the mortgagee's responsibility to respond to mortgagor's package of financial documentation, the filing of the mediator's report, the parties' opportunity to submit supplemental information following the filing of the mediator's report, and the court's ability to impose sanctions, and to make technical changes, amended Subsec. (c)(3) to delete provisions re the mediator's determination 2 days after the conclusion of the first mediation session, to permit mediation to continue if the mediator reports to the court after the second mediation session that the parties may benefit from further mediation, and to delete provision re failure to comply with documentation requirements, amended Subsec. (c)(4) to eliminate provision re mediator's report and to permit the mediator to refer to community-based services if the mediation period concludes and certain issues are unresolved, amended Subsec. (c)(5) to change “mediation session” to “meeting” and make a technical change, added Subsec. (c)(9) re conclusion and extension of the mediation period, added Subsec. (c)(10) re cases pending as of October 1, 2013, and added Subsec. (d) re Chief Court Administrator's reports, effective July 15, 2013; P.A. 14-89 amended Subsecs. (a) to (c) to change “2014” to “2016”, effective June 3, 2014; P.A. 15-124 changed “2016” to “2019” in Subsecs. (a), (b) and (c) and amended Subsec. (d) to make a technical change in Subdiv. (1), and to change “February 14, 2015” to “March 1, 2016, and by March first each year thereafter until March 1, 2019, inclusive”, replace “31, 2014” with “thirty-first of the immediately preceding year”, add reference to Department of Banking and make a technical change in Subdiv. (2), effective July 1, 2015; P.A. 16-65 amended Subsec. (b)(2) by deleting “the mortgagor attends the first mediation session in person,” and adding Subpara. (D) re mortgagor may be excused from appearing at mediation session for good cause and amended Subsec. (c)(2) by adding Subpara. (D) re mortgagor may be excused from appearing at mediation session for good cause; P.A. 18-53 amended Subsec. (c)(2)(A) by deleting “, the mortgagor attends the first mediation session in person”; P.A. 19-145 replaced “2019” with “2023”, replaced references to foreclosure mediation program with references to Ezequiel Santiago Foreclosure Mediation Program, amended Subsec. (d)(2) by replacing “March 1, 2016, and by March first each year thereafter until March 1, 2019, inclusive” with “March 1, 2021, and March 1, 2023”, and made technical changes, effective July 1, 2019; P.A. 21-44 deleted former Subsecs. (a) and (b) re applicable foreclosure period for foreclosure of certain mortgages and provisions re mediation, redesignated existing Subsec. (c)(1) as Subsec. (a) and amended same by replacing references to “June 30, 2023” with “June 30, 2029”, redesignated existing Subsec. (c)(2)(A) to (D) as Subsec. (b)(1) to (4) and amended same by adding provisions re virtual platform, adding “ or teleconference”, redesignating existing clauses (i) to (ix) as Subparas. (A) to (I), adding Subparas. (J) and (K) re federally backed mortgage loan and history of foreclosure avoidance efforts, and redesignating existing clauses (x) to (xiii) as Subparas. (L) to (O), redesignated existing Subsecs. (c)(3) and (c)(4) as Subsecs. (c) and (d), redesignated existing Subsec. (c)(5)(A) and (B) as Subsec. (e)(1) and (2) and amended same by replacing reference to Sec. 49-31 l (c)(4) with Sec. 49-31 l (d) and Sec. 49-31 l (c)(6) with Sec. 49-31 l (f), redesignated existing Subsecs. (c)(6) as Subsec. (f), redesignated existing Subsec. (c)(7) as Subsec. (g) and amended same by replacing “June 30, 2023” with “June 30, 2029”, redesignated existing Subsec. (c)(8) as Subsec. (h) and amended same by replacing reference to Sec. 49-31 l (c)(6) with Sec. 49-31 l (f), redesignated existing Subsec. (c)(9)(A) to (C) as Subsec. (i)(1) to (3), redesignated Subsec. (c)(10)(A) and (B) as Subsec. (j)(1) and (2), deleted former Subsec. (d) re Chief Court Administrator's reports and made technical and conforming changes.