A&B ABstract

On June 17, 2020, New York Governor Andrew Cuomo signed into law two measures, effective immediately, providing for mortgage forbearances for privately backed residential mortgage loans during the COVID-19 emergency. Senate Bill 8243 (2020 N. Y. Laws 112) amends the N. Y. Banking Law by adding new Section 9-x, “Mortgage Forbearance.” Senate Bill 8428 (2020 N. Y. Laws 126) relates to state disaster emergency and, among other provisions, amends Section 9-x as added by Senate Bill 8243. These measures apply during the covered period, beginning on March 7, 2020 and ending when no Executive Order issued in response to the COVID-19 pandemic relating to restricting public or private businesses or required postponement or cancellation of all non-essential gatherings of individuals apply in the county of the borrower’s residence.

Mortgage Forbearance

New Section 9-x of the Banking Law imposes new requirements on any New York regulated banking organization, including banks, trust companies, private bankers, savings banks, savings and loan associations, credit unions, and investment companies) and regulated mortgage servicers (collectively, “regulated entities”)subject to supervision by the New York Department of Financial Services (the “Department”).

First, regulated entities must make applications for forbearance widely available to any qualified mortgagor who, during the covered period is in arrears or on a trial period plan or who has applied for loss mitigation. A qualified mortgagor is a natural person who (i) demonstrates financial hardship as result of COVID-19 during the covered period, (ii) whose loan is from or serviced by a regulated entity, and (iii) whose loan meets the following criteria: the loan is incurred for personal, family or household purposes, s secured by mortgage on a 1-4 family property located in New York, and is the borrower’s primary residence. Forward and reverse mortgage as well as co-operative units are within scope.

Second, regulated entities must grant forbearance of all monthly payments due on a New York residential mortgage secured by a qualified mortgagor’s primary residence for up to 180 days with the option to extend the forbearance for up to an additional 180 days provided the borrower continues to demonstrate a financial hardship. Such forbearances may be backdated to March 7, 2020.

Third, any mortgage forbearance granted by a regulated entity to a qualified mortgagor as a result of a financial hardship pursuant to Executive Order 202.9 the regulation promulgated thereunder (3 NYCRR Part 119) or Section 9-x of the Banking Law subject to post forbearance repayment requirements. Specifically, the qualified mortgagor shall have the following four options:

• Extend the term of the loan for the length of the period of forbearance with no additional interest or late fees or penalties incurred on the forborne payment
• Have the arrears accumulated during the forbearance period payable on a monthly basis for the remaining term of the loan without being subject to penalties or late fees as a result of the forbearance
• Negotiate a loan modification or any other option that meets the changed circumstances of the borrower, or
• If the borrower and regulated entity cannot reasonably agree on a mutually acceptable loan modification, the regulated entity must offer to defer arrears accumulated during the forbearance period as a non-interest bearing balloon loan payable at the maturity of the loan, or at the time the loan is satisfied through a refinance or sale of the property. Late fees accumulated as a result of the forbearance must be waived.

The measure prohibits a regulated entity from reporting negatively to any credit bureau that the borrower has exercised any of the four post forbearance options

Significantly, Section 9-x of the Banking Law does not apply to any mortgage loan made, insured, purchased or securitized by: (i) any agency or instrumentality of the United States (such as FHA, VA or USDA); (ii) any government sponsored enterprise (such as Fannie Mae or Freddie Mac); (iii) a federal home loan bank; (iv) a corporate governmental agency of the state constituted as a political subdivision and public benefit corporation; or (iv) “the rights and obligations of any lender, issuer, servicer or trustee of such obligations, including servicers for” Ginnie Mae.

Privately backed mortgage loans are also subject to New York Executive Order 202.9, which modified Subdivision two of Section 39 of the Banking Law to provide that it is an unsafe and unsound business practice for any financial institution subject to the jurisdiction of the Department to, in response to the COVID-19 pandemic, fail to grant a forbearance to any person or business who has a financial hardship as a result of the COVID-19 pandemic for a period of ninety days. The Executive Order also directed the Superintendent of the Department to promulgate emergency regulations to require that the application for such forbearance be made widely available for consumers, and such application shall be granted in all reasonable and prudent circumstances solely for the period of such emergency. These regulations are set forth in new Part 119 to 3 NYCCR. The covered period of Executive Order 202.9 was extended by subsequent executive order to be valid through July 6, 2020, unless further extended.

Capital and Liquidity

New Section 9-x of the Banking Law provides that the obligation to grant the forbearance relief required by Section 9-x is subject to the regulated entity “having sufficient capital and liquidity to meet its obligations and to operate in a safe and sound manner.” If a regulated entity determines it is not able to offer the forbearance to any qualified mortgagor, it must notify the Department within five business days of making such determination. Any such notice filed with the Department must include: (1) information about the mortgagor; (2) the reason the regulated entity determined that it was unable to offer any forbearance relief pursuant to Section 9-x; (3) information about the institution’s financial condition supporting the its determination; and (4) any other information required by the Department. Additionally, when such a notice is provided to the Department, the regulated entity must advise the mortgagor that the application for relief was denied and provide a statement that the applicant may file a complaint with the New York state department of financial services at 1-800-342-3736 or http://www.dfs.ny.gov if the applicant believes the application was wrongly denied.

Defense to Foreclosure

Section 9-x of the Banking Law, provides that adherence with Section 9-x is a condition precedent to commencing a foreclosure action stemming from missed payments which would have otherwise been subject to this section, and that a defendant may raise the violation of this section as a defense to such a foreclosure action commenced on the defendant’s property.

Takeaway

These New York measures provide protections to New York borrowers who aren’t otherwise covered by the CARES Act. Servicers should take note of these provisions as well as similar ones in other states, such as the District of Columbia, Massachusetts and Oregon. In the immediate term, servicers will need to quickly operationalize these new protections. In the longer term, questions may be raised as to whether these types of measures infringe upon any private investors’ rights.

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