Short title

This Act may be cited as the

Produce the Note Act of 2009

Required information and notice

Notwithstanding any other provision of State or Federal law, no foreclosure, whether judicial or nonjudicial, may be commenced with respect to a covered residential mortgage unless the person commencing the foreclosure complies with all of the following requirements: (1)

Submission of information

The person commencing the foreclosure shall submit to the court, in the case of a judicial foreclosure, or to the office of the State or other subdivision of the State to which notice of default, foreclosure, or sale of the foreclosed property is required under State law to be submitted, in the case of a nonjudicial foreclosure, a report prepared by an independent party that includes the following information: (A)A statement of findings as to whether the covered residential mortgage was made and serviced in compliance with the terms of, and regulations under, the following laws: (i)The Truth in Lending Act (15 U.S.C. 1601) and Regulation Z of the Board of Governors of the Federal Reserve System under such Act. (ii)The Equal Credit Opportunity Act (15 U.S.C. 1691 et seq.) and Regulation B of the Board of Governors of the Federal Reserve System under such Act. (iii)The Fair Debt Collection Practices Act (15 U.S.C. 1692 et seq.). (iv)The Federal Fair Credit Reporting Act (15 U.S.C. 1681 et seq.). (v)The Real Estate Settlement Procedures Act of 1974 (12 U.S.C. 2601 et seq.) and Regulation X of the Secretary of Housing and Urban Development under such Act. (vi)The Flood Disaster Protection Act of 1973 (42 U.S.C. 2002 et seq.). (vii)The Fair Housing Act (42 U.S.C. 3601 et seq.). (viii)The Home Mortgage Disclosure Act of 1975 (12 U.S.C. 2801 et seq.). (ix)The Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (Public Law 101–73). (x)Any applicable provisions of State and local law relating to real estate lending or consumer protection. (B)Certification of any mortgage modification efforts that were employed and any offers made to the mortgagor by the person commencing the foreclosure. (C)If any noncompliance is found pursuant to subparagraph (A), a statement as to whether the violations are such that the mortgagor should be afforded an extended right, beyond the period permitted under State law— (i)to rescind the mortgage in defense of the foreclosure; or (ii)to redeem the mortgage. (D)Identification of— (i)the actual holder of the mortgage note, the originating lender for the mortgage and all subsequent assignees, and other all parties who have an interest in the real estate that is subject to the mortgage or in the mortgage or the proceeds of the mortgage; and (ii)any parties identified pursuant to clause (i) that received any assistance pursuant to title I of the Emergency Economic Stabilization Act of 2008 (12 U.S.C. 5211 et seq.) and the amount of any such assistance received. (E)A statement of whether a bona fide default on the covered mortgage has occurred. (F)A description of any hardship circumstances regarding the economic circumstances of the mortgagor that would be relevant to a determination by the mortgagee of whether to modify the mortgage. (G)A statement of whether the mortgage is insured under title II of the National Housing Act (12 U.S.C. 1707 et seq.). (H)A statement of whether the mortgage is, or any terms of the mortgage are, unfair or constitute an unfair or deceptive act or practice violating the Federal Trade Commission Act (15 U.S.C. 41 et seq.), and if so, a description of the unfairness or the unfair or deceptive act or practice. (I)A statement of whether any material misrepresentations were made that fraudulently induced the mortgagor to enter into the transaction to his or her detriment, and if so, a description of such misrepresentation. (J)Identification of any offsets to the creditor claim on the mortgage. (K)A statement of the racial characteristics, gender, census tract, and income level of the mortgagor, as such terms are used for purposes of compliance with the Home Mortgage Disclosure Act of 1975 (12 U.S.C. 2801 et seq.). (2)

Required notification

The person commencing the foreclosure shall provide notice to the mortgagor, in writing, not less than 5 days before any action is taken to commence the proceeding or action for foreclosure, and shall certify to the court, in the case of a judicial foreclosure, or to the office of the State or other subdivision of the State to which notice of default, foreclosure, or sale of the foreclosed property is required under State law to be submitted in the case of a nonjudicial foreclosure, that such notice has been provided, that includes the following information: (A)A statement of any rights of the mortgagor under the applicable laws governing the foreclosure and consumer rights. (B)A statement of any deadlines for filing answers, defenses, or objections to the foreclosure, including those rights of the mortgagor under the Real Estate Settlement Procedures Act of 1974 and any applicable State laws. (C)A statement of any penalties and other consequences for the mortgagor if the mortgagor does not respond or file answers to the foreclosure. (D)A statement of the amounts claimed to be in arrears under the mortgage and needed to reinstate the account and all associated costs and fees, set forth in itemized and distinct categories, and current and correct contact information, including telephone numbers, electronic mail addresses, and postal addresses, at which the mortgagor can obtain further information regarding the mortgage account. (E)A description of any additional options, such as mortgage workout, modification, mitigation, and redemption, that might be available to the mortgagor to prevent the foreclosure from proceeding and a description of how the mortgagor can obtain additional information regarding such options. (F)A statement of the correct names, telephone numbers, electronic mail addresses, postal addresses, and any State licensing numbers of the mortgage holder, the mortgage servicer, and the person or persons authorized to take the actions described pursuant to subparagraph (E).

Definitions

For purposes of this Act, the following definitions shall apply: (1)

Independent party

The term independent party means, with respect to foreclosure on a covered residential mortgage, an individual who has no interest in, or affiliation with, any party involved in such foreclosure or with the covered residential mortgage involved in such foreclosure, including any party that owns, manages, controls, or directs such an involved party, any party that is owned, managed, controlled, or directed by such an involved party, or any party that is under common ownership, management, control, or direction with such an involved party. (2)

Covered residential mortgage

The term covered residential mortgage means a mortgage that meets the following requirements: (A)The property securing the obligation under the mortgage shall be a one- to four-family dwelling, including a condominium or a share in a cooperative ownership housing association. (B)The mortgagor under the mortgage shall occupy the property securing the obligation under the mortgage as his or her principal residence. (3)

Mortgage

(A)

In general

The term mortgage means a deed of trust, mortgage, deed to secure debt, security agreement, or any other form of instrument under which any property (real, personal, or mixed), or any interest in property (including leaseholds, life estates, reversionary interests, and any other estates under applicable State law), is conveyed in trust, mortgaged, encumbered, pledged, or otherwise rendered subject to a lien for the purpose of securing the payment of money or the performance of an obligation. (B)

Condominiums and cooperatives

Such term includes a first mortgage given to secure— (i)the unpaid purchase price of a fee interest in, or a long-term leasehold interest in, a one-family unit in a multifamily project, including a project in which the dwelling units are attached or are manufactured housing units, semi-detached, or detached, and an undivided interest in the common areas and facilities that serve the project; or (ii)repayment of a loan made to finance the purchase of stock or membership in a cooperative housing corporation the permanent occupancy of dwelling units of which is restricted to members of such corporation, where the purchase of such stock or membership entitles the purchaser to the permanent occupancy of one of such units.

Relation to State law

This Act does not annul, alter, or affect, or exempt any person subject to the provisions of this Act from complying with, the laws of any State or subdivision thereof with respect to foreclosure on a residential mortgage, except to the extent that those laws are inconsistent with any provision of this Act, and then only to the extent of the inconsistency. No provision of the laws of any State or subdivision thereof may be determined to be inconsistent with any provision of this Act if such law is determined to require greater disclosure or notice than is required under this Act or to provide greater protection to the mortgagee than is required under this Act.