Bendett & McHugh Update in Maine

• By: ALFN
• On: 04/03/2020 16:14:20
• In: COVID-19

On March 18, 2020, the attached law was signed and is scheduled to go into effect June 16, 2020.  
 
The Act was intended by its sponsor and the local lenders that originally backed it to make it easier for a mortgage loan servicer to obtain a clear right to enter a property while a foreclosure action is pending to conduct property preservation activities.  Specifically, the access will be automatically authorized by the servicer filing an affidavit with the court demonstrating that the property is abandoned.  The on-site work that can be carried out once the affidavit is filed is broadly defined to include typical property preservation activities such as securing the building, winterization, and routine building and yard maintenance.   
 
While the Act does provide servicers with a written process to follow to obtain authorized property access, it also includes numerous requirements that condition the access, including a requirement for the servicer or its representative to meet in person with a local official or officer and to provide various notices of the access, as well as other borrower and occupant protections.
 
The substantive requirements for the affidavit and for the conditions of property access are summarized below.
 
The Affidavit
The content of the affidavit will vary from case-to-case based on the situation and property conditions presented.  Minimal requirements for the affidavit are:

• Must be based on the personal knowledge of the affiant and provide the basis of that knowledge.

• Must include a statement that a municipal, county or state official, code enforcement officer or law enforcement official was present on the date that the conditions described by the affiant were observed.

• Must describe the conditions and any other facts evidencing abandonment. Conditions showing a presumption of abandonment which must be included within the affidavit include the following:

  • Code enforcement officer or other public official determines that the mortgaged premises are abandoned;

  • Three of the subparagraphs below must apply:

    • (1) There are:

      • One or more doors on the mortgaged premises that are boarded up, broken off or continuously unlocked;

      • Multiple windows that are boarded up or closed or; or

      • Multiple window panes that are broken;

    • (2) Gas, electronic or water service to the mortgaged premises has been terminated or utility consumption is so low that it indicates the mortgaged premises are not regularly occupied;

    • (3) Rubbish, trash or debris has accumulated on the mortgaged premises;

    • (4) Newspapers, flyers or mail as accumulated on the mortgaged premises;

    • (5) Furnishings and personal property are absent from the mortgaged premises;

    • (6) A mortgagee has changed the locks on the mortgaged premises and neither the mortgagor nor anyone on the mortgagor's behalf has requested entrance to, or taken other steps to gain entrance to the mortgaged premises;

    • (7) A law enforcement agency has received reports of at least 2 separate incidents of trespass, vandalism or other illegal acts being committed on the mortgaged premises in the 180 days before determination of abandonment is sought;

    • (8) The mortgagor is deceased and there is no evidence that an heir or personal representative has taken possession of the mortgaged premises; and

    • (9) There are other reasonable indicia of abandonment; or

  • One or more written statements signed by the homeowner indicate a clear intent to abandon the mortgaged premises.

Notice
A copy of the affidavit must not only be filed with the court, but also must be served on all parties to the foreclosure action. In addition, Notice must be posted on the front door of each property that includes the following:

1. A statement that until foreclosure and sale is complete the property owner or occupant authorized by the owner has the right to possession;

2. A statement that the property owner or occupant authorized by the owner has the right to request any locks installed by the mortgagor loan servicer or its designee be removed within 24 hours and replaced with new locks accessible by only the property owner or the occupant authorized by the owner;

3. A toll-free, 24-hour telephone number that the property owner or occupant authorized by the owner may call in order to gain timely entry. Timely entry must be provided no later than the next business day; and

4. The telephone number of the Department of Professional and Financial Regulation, Bureau of Consumer Credit Protection's foreclosure hotline with a statement that the property owner may have the right to participate in foreclosure mediation.

Further Property Preservation Requirements
The following specific requirements apply to the on-site team: Record of entry: Must make a record of entry by means of date and time stamped photographs showing the manner of entry and personal items visible within the residence upon entry.

• May not remove any personal items unless they are hazardous or perishable. If any items are removed, then a written inventory must be kept.

• Maintenance of records: Servicer or its designee must maintain records of entry onto the property for at least 4 years from the date of entry.

• If upon entry the property is found to be occupied, the servicer or its designee must leave immediately and notify the county or municipality. Servicer must also post a notice advising the entry occurred, take all steps necessary to remedy any damage caused by the entry and secure the property for the occupants.

• If contacted by the borrower and notified the property is not abandoned, the servicer must notify the county or municipality and then may not enter the property.

Please feel free to contact Santo Longo at slongo@bmpc-law.com with any further questions or concerns. Click here to view the paper.