Mortgage foreclosure cases sometimes yield surprising and unexpected results, and the recent opinion issued in Freedom Mortg. Corp. v. Olivera is no exception. In Olivera, the Appellate Court for Illinois’ Second District ruled that mortgage lenders attempting to foreclose an FHA-insured mortgage must demonstrate strict compliance with a HUD regulation mandating face-to-face meetings within three months of a payment default or “forgive potentially years of monthly payments” because lenders cannot go back in time to correct their alleged noncompliance. Yet the court openly “agreed to an extent” that its own ruling was “unjust.” This article discusses some of the arguments Illinois foreclosure practitioners should examine to challenge the court’s analysis.
HUD Face-to-Face Meeting Requirements
The National Housing Act of 1934 (Housing Act) created the Federal Housing Administration (FHA) to encourage the construction of affordable housing. The Housing Act expressly affirmed “the national goal . . . of a decent home and a suitable living environment for every American family.” The U.S. Department of Housing and Urban Development (HUD) administers the Housing Act’s various housing programs, including a program that provides mortgage insurance on loans made by FHA-approved lenders to borrowers who may otherwise struggle to qualify for a mortgage.
In connection with administering the FHA-insured loan program, HUD promulgates regulations governing the servicing of FHA-insured loans. These regulations include a requirement that, unless excused for specific reasons, lenders must “have a face-to-face interview with the mortgagor, or make a reasonable effort to arrange such a meeting, before three full monthly installments due on the mortgage are unpaid.” Under the regulations, a “reasonable effort to arrange a face-to-face meeting” requires at least “one letter sent to the mortgagor certified by the Postal Service as having been dispatched” and “at least one trip to see the mortgagor at the mortgaged property,” unless an exception applies.
HUD-mandated language in FHA-insured mortgages precludes lenders from “requir[ing] immediate payment in full of all sums secured” when limited by the HUD regulations, and it specifies that the mortgage “does not authorize acceleration or foreclosure if not permitted by [HUD regulations].” The HUD-mandated language for FHA-insured mortgage notes includes substantively identical provisions. Most courts — including some courts in Illinois — hold that these provisions in the mortgage and note incorporate at least some HUD regulations into the parties’ mortgage contract, and most courts agree that they therefore incorporate HUD’s face-to-face meeting requirement.
Courts holding that the mortgage and note incorporate HUD regulations into lenders’ obligations under the loan documents typically rely on regulatory language found in Section 203.500, which specifies HUD’s intent “that no mortgagee shall commence foreclosure or acquire title to a property until the requirements of this subpart [Subpart C, Sections 203.500 to 203.681] have been followed.” Similarly, Section 203.606 provides that “[b]efore initiating foreclosure, the mortgagee must ensure that all servicing requirements of [Sections 203.500 to 203.681] have been met.” Courts predominantly interpret these provisions as requiring substantial compliance with the relevant sections before filing a foreclosure complaint.
Importantly, HUD itself confirms that it did not intend the language in the loan documents to “incorporate all of HUD’s servicing requirements.” Instead, according to a 1989 Notice of Policy HUD published in the Federal Register, the loan documents’ reference to the regulations only applies to regulations that “specifically state prerequisites to acceleration or foreclosure.” And notably, unlike some of HUD’s servicing regulations, HUD’s face-to-face meeting requirements do not specify they are prerequisites to acceleration or foreclosure. Therefore, it is reasonable to conclude that HUD did not intend for the loan documents to incorporate the face-to-face meeting requirement according to its own published understanding of the controlling terms and regulations.
National Trend on Applying HUD Face-to-Face Meeting Requirements
Although the face-to-face meeting regulation does not appear to qualify as a pre-condition to acceleration and foreclosure under HUD’s explicit policy statement on the governing mortgage language, most courts still require lenders to comply with HUD’s face-to-face meeting requirement before foreclosing. Nonetheless, the balance of courts that have considered the issue also recognize that the specific timeframe for compliance is “aspirational” and not mandatory. In other words, most states require lenders to comply with the HUD regulations before filing a foreclosure complaint, but they do not preclude lenders from ever foreclosing merely because the lender fails to comply with all regulations before three full monthly installments become unpaid.
The New York Supreme Court’s commonly cited opinion in U.S. Bank Nat’l Ass’n v. McMullin addresses the issues involved in detail. In McMullin, the borrowers defaulted on their loan payments in March 2009. The lender “did not claim to have had a face-to-face meeting with [the borrowers] before [they] missed three full monthly payments.” However, the court determined that the lender had “made good-faith, reasonable efforts over a multi-year period to negotiate a consensual resolution of [the borrowers’] longstanding default before commencing [the foreclosure],” which the court found sufficient to allow the foreclosure to proceed.
The McMullin court analyzed the standard language in the HUD-approved mortgage and note and concluded that the loan documents “establish[ed] a condition precedent to suit, the occurrence of which [the lender] must establish as part of its prima facie case” to foreclose. The court continued: “The issue then becomes whether [the lender] has established the occurrence of the condition stated in the mortgage: that the HUD regulations did not prohibit the commencement of this action.” Noting the difference under New York contract law between express conditions, which “must be literally performed,” and constructive conditions, “which ordinarily arise from language of promise” and “are subject to the precept that substantial compliance is sufficient,” the court found that the lender had substantially complied with the regulations, and that the regulations therefore did not prohibit commencing the foreclosure action.
In determining that the lender had substantially complied, the court considered HUD’s regulatory language that “[b]efore initiating foreclosure, the mortgagee must ensure that all servicing requirements . . . have been met.” The court contrasted that language against the language HUD employed in the next sentence of the regulation: “The mortgagee may not commence foreclosure for a monetary default unless at least three full monthly installments due under the mortgage are unpaid.” The court found that the second sentence — addressing the lender’s duty to wait until the borrower missed three monthly payments to foreclose — “employ[ed] the unmistakable language of condition through the use of a term such as unless,” whereas the first sentence — addressing the lender’s duty to ensure it met all servicing requirements — “is not cast in the form of a clear prohibition.” “Instead,” the court determined, the first sentence “employs the type of doubtful language that courts routinely interpret as embodying a promise.”
In other words, the court examined HUD’s language requiring lenders to “ensure that all servicing requirements . . . have been met,” and it concluded that when read in context, the language constituted a constructive condition subject to substantial — not strict — compliance. The court found additional support for its ruling in the “highly inequitable consequences” of a contrary interpretation, noting that “[i]t seems inconceivable that the HUD regulations, promulgated in respect to the federal agency’s role as an insurer of mortgages, were intended to create a permanent and impenetrable barrier to foreclosing” where a lender failed to conduct a face-to-face meeting within three months of the borrower’s default.
Accordingly, the court held that the lender’s “good-faith, reasonable efforts over a multi-year period to negotiate a consensual resolution” to the default constituted substantial compliance with HUD regulations. Courts throughout the country that have examined HUD’s face-to-face meeting requirement have employed a similar analysis and reached similar results.
The Olivera Opinion
Nevertheless, despite mostly widespread agreement on allowing substantial compliance with HUD’s face-to-face meeting requirement from courts in multiple jurisdictions, the Illinois Appellate Court’s Second District recently opted to buck the national trend. Its ruling creates confusion for Illinois lenders seeking to comply with the face-to-face requirement in good faith.
In Olivera, the lender filed a foreclosure complaint in May of 2017 alleging that the borrower remained in default on the loan since September 2011. The lender had previously dismissed two foreclosure actions without prejudice. In January 2017, prior to filing its May 2017 complaint, the lender had sent the borrower a certified letter trying to arrange a face-to-face meeting with the borrower, and it had sent a representative to visit the property to attempt to arrange a face-to-face meeting. The trial court granted the borrower’s motion to dismiss the third foreclosure action filed in 2017, finding that the lender had failed to meet a condition precedent to filing its complaint when it failed to conduct a face-to-face meeting within three months of the borrower’s default. The Second District affirmed the trial court’s dismissal.
Refusing to adopt the “common-sense approach” followed in other jurisdictions, the court found that “Illinois authority does not support that the regulations require only substantial compliance before foreclosure actions may proceed.” However, the court acknowledged that “it would be inequitable to presume that, where a lender fails to comply with the initial three-month time frame, foreclosure is forever barred and that borrowers may simply remain in the premises indefinitely without ever paying their mortgage.” Accordingly, the court confirmed that its “holding does not . . . mean that [lenders] can never foreclose.” “Rather, after ‘forgiving’ past missed payments, waiting for potentially more missed payments, and timely complying with the regulations, [lenders] could, legally, file a new complaint with a new default date.”
Oddly, the court “agree[d] to an extent” that “it would be unjust to require a lender to forgive potentially years of missed payments, simply because we decide that strict compliance with the regulations is required.” Nevertheless, the court opined that “[t]he payments would not exactly be ‘forgiven.’” Rather, the court said, forgiving the payments would just decrease “the extent of personal liability resulting in a possible deficiency judgment.” The court did not appear to have considered the possibility that not all foreclosure sales result in deficiencies. Nor did it explain why wiping away five to six figures of potential financial liability somehow makes the result of its ruling less unjust. In other words, the court accepted that its decision would produce an unjust result, but it purported to help lenders avoid the decision’s inequitable consequences by creating an avenue for them to forgive multiple thousands of dollars of debt and restart their collection efforts after several years of contested litigation.
Third District’s Denton Opinion
The Second District’s Olivera opinion relied heavily on Bankers Life v. Denton, a 1983 decision from Illinois’s Third District. In Denton, the Third District considered whether borrowers could raise a lender’s failure to comply with HUD regulations — including the face-to-face requirement — as affirmative defenses to a foreclosure. It held that they could.
The court acknowledged that HUD regulations imposed a penalty on lenders who refused or failed to comply with HUD regulations but since that penalty did not prohibit lenders from foreclosing delinquent mortgage loans, the court decided that it did “not believe this to be an adequate remedy for the individual mortgagor.” Accordingly, the court held that borrowers could raise HUD non-compliance as an affirmative defense in a mortgage foreclosure, because “HUD’s withdrawal of a mortgagee’s approval to participate in the mortgage insurance program after repeated violations of the servicing requirements is a useless remedy for the individual faced with the immediate problem of a foreclosure action.”
Notably, the Denton court never held that HUD regulations mandated strict as opposed to substantial compliance, and it never discussed how courts should apply its ruling to the three-month window for the face-to-face meeting requirement. To the contrary, the court specifically described foreclosure actions where the lender failed to comply with HUD regulations as actions “which could possibly be avoided by . . . further efforts to arrange a revised payment plan.” In other words, the Denton court appears to have assumed the parties could participate in “further efforts” at loss mitigation after the lender’s non-compliance, which stands in sharp contrast to Olivera’s ruling requiring lenders who miss the three-month window for face-to-face meetings to forgive substantial sums of principal and interest instead. Nevertheless, the Second District relied on Denton to impose a new strict compliance standard for HUD regulations.
The Illinois Supreme Court on HUD Regulations
Importantly, both Olivera and Denton may conflict with earlier Illinois Supreme Court authority explaining how Illinois courts must apply HUD regulations governing FHA-insured mortgage loans. Notably, neither the Second District in Olivera nor the Third District in Denton recognized or discussed the Illinois Supreme Court’s binding analysis in La Throp v. Bell Federal Savings & Loan on the issue.
In La Throp, borrowers under FHA-insured mortgage loans brought a class action lawsuit against lenders alleging that HUD regulations required lenders to hold escrow funds in trust for borrowers and to pay borrowers any interest accrued on those funds. The Illinois Supreme Court rejected the borrowers’ allegations, noting in part that HUD regulations govern “the relationship between the mortgagee and FHA, rather than the relationship between the mortgagee and the mortgagor.” Accordingly, the court held that “in an action between a mortgagor and mortgagee (not between the mortgagee and FHA), where the mortgage contract does not specifically incorporate the FHA regulations or expressly indicate agreement thereto, such regulations are not determinative of the content of the contract created between the parties.”
In the face-to-face meeting situation, the mortgage contract does not specifically incorporate the applicable regulation or expressly indicate agreement thereto, as La Throp requires. Rather, the loan documents prohibit acceleration or foreclosure “if not permitted” by HUD regulations. As the New York Supreme Court recognized in McMullin, the question then becomes not whether the lender timely completed the face-to-face meeting requirements, but whether the HUD regulations at issue would preclude foreclosure if it did not. As discussed above, the court in McMullin applied standard principles of New York contract law to conclude that failing to strictly comply with the face-to-face meeting requirements would not preclude foreclosure. Illinois courts recognize the same standard principles of contract law.
Constructive Conditions of Exchange Versus Conditions Precedent
Like in New York, Illinois courts have distinguished between constructive conditions and conditions precedent. Illinois courts “define a condition precedent as one which must be performed either before a contract becomes effective or which is to be performed by one party to an existing contract before the other party is obligated to perform.” “Distinctly different, although analogous to the concept of a condition, are constructive conditions of exchange,” which “play an integral role in assuring the parties to a bilateral contract that they will receive the performance that they have been promised.” Illinois courts typically apply the concept of constructive conditions of exchange “when one party seeks to justify its own refusal to perform on the ground that the other party has committed a breach of contract.”
HUD regulations incorporated into an FHA-insured mortgage more closely align with constructive conditions of exchange than with conditions precedent. In the typical mortgage relationship, the borrower receives a loan of several hundred thousand dollars to purchase a home the borrower could not otherwise afford, which the lender provides in exchange for the borrower’s promise to pay the money back as outlined in the agreement. In the face-to-face meeting situation, the lender has already given the borrower the hundreds of thousands of dollars, and the borrower has stopped making payments as outlined in the agreement. When the lender then files a foreclosure action, the borrower seeks to avoid their obligation to repay the money based on the lender’s failure to conduct a face-to-face meeting before the borrower missed three full monthly payments. It is difficult to imagine a better example of “one party seek[ing] to justify its own refusal to perform on the ground that the other party has committed a breach of contract.”
Notably, the appellate district court that decided Olivera recognized the substantial performance doctrine in the context of constructive conditions of exchange. In MXL Industries v. Mulder, a tenant entered into a five-year commercial lease with an option to terminate the lease following specific procedures. When the tenant tried to terminate the lease, the lender refused, and the tenant filed a declaratory judgment action asking the court to nullify the lease. The Second District discussed the substantial performance doctrine as it relates to constructive conditions of exchange in detail, but it ultimately followed other Illinois courts that had imposed a strict compliance standard on lease termination options.
However, the option to terminate a lease differs from the face-to-face meeting situation in at least one important and relevant way: an option to terminate a lease allows one party to unilaterally cancel the contract. It makes intuitive sense that a court would require a party seeking to avoid its agreed contractual obligations without the other side’s consent to strictly comply with the contractual provision allowing it to unilaterally cancel the contract. In contrast, the lender in the typical face-to-face meeting situation has already met its obligations under the mortgage contract by loaning the borrower the hundreds of thousands of dollars the borrower needed to purchase a home. The borrower — not the lender — has breached the contract by failing to repay the money as agreed. Requiring the lender, who has already performed to the tune of several hundred thousand dollars, to strictly comply with the face-to-face meeting requirements allows the borrower — not the lender — to unilaterally avoid its agreed contractual obligations.
Relatedly, Illinois courts strictly construe “express conditions precedent” in the contract. For FHA-insured mortgages, it is important to distinguish what exactly the express condition precedent is that courts must strictly construe. Under the mortgage, the lender may accelerate and foreclose “except as limited by regulations issued by [HUD].” The mortgage “does not authorize acceleration or foreclosure if not permitted by regulations of [HUD].” Thus, strictly construing the condition precedent at issue only precludes acceleration and foreclosure if prohibited by HUD regulations. HUD’s own interpretation published in the Federal Register specifies that it only intended for regulations that “specifically state prerequisites to acceleration or foreclosure” to prevent acceleration or foreclosure. HUD’s face-to-face meeting requirement does not specifically state that it is a prerequisite to foreclosure, meaning that strictly construing the mortgage contract’s express condition precedent should not preclude foreclosure.
Applying HUD Regulations with the Force and Effect of Law
Notably, some Illinois courts treat HUD’s regulations as having “the force and effect of law” independent of the parties’ mortgage contract, despite the Illinois Supreme Court’s unambiguous ruling that “where the mortgage contract does not specifically incorporate the FHA regulations or expressly indicate agreement thereto, such regulations are not determinative of the content of the contract created between the parties.” Nevertheless, the result should remain the same. Illinois courts “construe administrative rules and regulations under the same principles that govern the construction of statutes,” and their “primary objective is to ascertain and give effect to the drafters’ intent.” Importantly, they “may not depart from the plain language of a regulation by reading into it exceptions, limitations, or conditions that the agency did not express.” Yet this is exactly what the Second District did in Olivera.
Nothing in the plain language of the relevant HUD regulations suggests that the drafters intended to forever bar lenders from foreclosing if they failed to strictly comply with the regulations, or that they intended to require lenders to forgive substantial sums of principal and interest as punishment for any failure to comply with a regulation. To the contrary, Section 203.500 specifies HUD’s intent “that no mortgagee shall commence foreclosure . . . until the requirements of [Sections 203.500 to 203.681] have been followed.” Similarly, Section 203.606 requires that “[b]efore initiating forecloure, the mortgagee must ensure that all servicing requirements of [Sections 203.500 to 203.681] have been met.” By precluding foreclosure “until” the lender follows the regulatory requirements and requiring compliance “[b]efore initiating foreclosure,” the plain language of these sections expressly anticipates allowing the lender to take future action to bring itself into compliance.
Importantly, if HUD had intended to prohibit lenders from foreclosing or to force lenders to forgive substantial amounts of debt for servicing errors, it could have done so. HUD could have drafted Section 203.500 to read: “The mortgagee shall not commence foreclosure unless the requirements of [Sections 203.500 to 203.681] have been met.” It could have drafted Section 203.606(a) to read: “The mortgagee cannot initiate foreclosure if all servicing requirements of [Sections 203.500 to 203.681] have not been met.” It did not. Instead, HUD used different language that specifically contemplated the possibility of future action to correct alleged noncompliance. HUD presumably chose this language for a reason; the agency’s chosen words should matter.
Moreover, HUD itself confirmed in its Notice of Policy published in the Federal Register that only “some regulations [ ] exist which limit a lender’s rights to foreclose,” noting that the language required in its form mortgage “does not incorporate all of HUD’s servicing requirements into the mortgage.” Rather, HUD explained, the language “simply prevents acceleration and foreclosure on the basis of the mortgage language when foreclosure would not be permitted by HUD regulations.” HUD continued: “If a mortgagee has violated parts of the servicing regulations which do not specifically state prerequisites to acceleration or foreclosure, [ ] the reference to regulations in the mortgage would not be applicable.” In other words, unless the regulation at issue specifically states it is a prerequisite to acceleration or foreclosure, then a lender’s failure to comply does not bar foreclosure.
The regulations creating HUD’s face-to-face meeting requirements do not specifically state prerequisites to acceleration or foreclosure, as required for a lender’s failure to comply to bar foreclosure. To illustrate what constitutes a specific prerequisite to acceleration or foreclosure, HUD highlighted the language from Section 203.606 that “specifically prohibits a mortgagee from foreclosing unless three full monthly payments due on the mortgage are unpaid.” This language reads: “The mortgagee may not commence foreclosure for a monetary default unless at least three full monthly installments due under the mortgage are unpaid.” Section 203.604 — which creates HUD’s face-to-face meeting requirements — has no corresponding prohibition against foreclosure or acceleration.
By its express terms, Section 203.604 creates a requirement that lenders conduct a face-to-face interview or make reasonable efforts to arrange such an interview, unless specified circumstances exist to excuse the requirement. The section outlines the time that the lender should conduct or make a reasonable effort to arrange the interview, but it nowhere prohibits the lender from foreclosing if the lender fails to meet the timeline. In fact, under its express terms, the section does not even prohibit the lender from foreclosing if the lender fails to conduct or attempt to arrange the interview at all. According to HUD’s own explanation, a lender’s failure to comply with Section 203.604’s face-to-face meeting requirement therefore does not limit foreclosure or acceleration under the terms of the mortgage.
As with Sections 203.500 and 203.606, HUD could have used language that made compliance with Section 203.604 a prerequisite to acceleration and foreclosure. For example, it could have written the regulation to read: “The mortgagee shall not commence foreclosure for a monetary default unless it has a face-to-face interview with the mortgagor, or makes a reasonable effort to arrange such a meeting, before three full monthly installments due on the mortgage are unpaid.” It did not. Again, HUD’s chosen words should matter.
Importantly, applying HUD’s Notice of Policy to preclude foreclosure for noncompliance with a regulation only where the regulation specifically states that it is a prerequisite to foreclosure would conform to the rules governing other types of mortgage foreclosures. As already discussed, it would preclude foreclosure until at least three full monthly installments become unpaid, which tracks with CFPB regulations governing other types of mortgage foreclosures. It would also preclude foreclosure where the lender failed to “notify the mortgagor . . . that the mortgagor is in default and that the mortgagee intends to foreclose unless the mortgagor cures the default,” which would track with the standard notice of default requirements in non-FHA-insured mortgages.
In other words, interpreting the HUD-mandated language in FHA-insured mortgages in accordance with HUD’s own Notice of Policy provides borrowers with the same protections they would receive under non-FHA mortgages. Illinois courts should not question HUD’s policy decision to treat the mortgage language in this way, and they should not read additional requirements or conditions into the regulations that HUD did not express.
The Housing Act’s Purpose
The Second District in Olivera did not address the regulations’ plain language, or HUD’s specific explanation about which regulations it intended to bar foreclosure under the mortgage. Instead, the court focused on its own misunderstanding of the Housing Act’s purpose.
Extensively quoting the Third District’s opinion in Denton, the Second District’s Olivera ruling recites the Housing Act’s purpose “to assist in providing a decent home and a suitable living environment for every American family.” According to Olivera and Denton, HUD’s decision to limit the penalty for a lender’s noncompliance to levying a fine against the lender or withdrawing its status as a HUD-approved lender does not sufficiently protect “the individual faced with the immediate problem of the foreclosure action.” To correct HUD’s perceived oversight, the court in Olivera improperly departed from the plain language of HUD’s regulations to impose a strict compliance standard on the face-to-face meeting requirement.
Yet both Olivera and Denton misunderstand the Housing Act’s legislative purposes. As discussed above, the Housing Act created the FHA during the Great Depression to achieve “the realization as soon as feasible of the goal of a decent home and a suitable living environment for every American family.” Congress’s purpose in pursuing policies to realize this goal was to “contribut[e] to the development and redevelopment of communities and to the advancement of the growth, wealth, and security of the Nation.” The Olivera and Denton courts mistakenly refocus Congress’s purpose away from community development and national growth to individual homeowners, and they seek to equip individual homeowners with extra tools to ensure a lender’s compliance with HUD regulations beyond those HUD itself chose to create.
Put differently, Congress designed the Housing Act to create programs that would help communities grow so “every American family” could have “a decent home and a suitable living environment.” This included programs that would encourage lenders to make financially risky mortgage loans to borrowers who may not otherwise qualify for the financing needed to purchase a home. Interpreting HUD regulations to effectively require lenders to choose between forgiving substantial amounts of principal and interest or losing the ability to promptly foreclose will discourage — not encourage — lenders from making the intended loans. In any event, even if the Olivera and Denton courts disagree with HUD about the appropriate penalties for noncompliance with its regulations, it is not their place to supplant their opinions for HUD’s. Congress gave the responsibility for administering the Housing Act to HUD, not to the Illinois Appellate Court.
Impractical and Absurd Results
Similarly, Illinois courts interpret administrative regulations under the same rules applied to statutes, and the Illinois Supreme Court “has long held that statutes should be construed in such a way as to avoid impractical or absurd results.” Applying Olivera to real-world scenarios leads to just such impractical and absurd results.
Consider the not-uncommon scenario where a lender acquires its interest in the loan after three full monthly installments have already become unpaid under the regulation. Examining an entire hypothetical foreclosure step-by-step, starting from the beginning, helps illustrate the problem. Let’s say that Borrower takes out a $250,000 mortgage loan from Bank with a 30-year term on July 1, 2012. The loan has an annual interest rate of 2.5%. Borrower’s first payment is due August 1, 2012, and the loan matures on July 1, 2042. An amortization schedule showing the monthly amounts due on the loan is included as Appendix No. 1.
Borrower timely pays on the loan for the first five years, but she defaults on her payment due July 1, 2017. After the first missed payment, Bank’s loan servicer sends Borrower a letter inviting her to apply for loss mitigation and providing her contact information to call to schedule a face-to-face meeting. Bank’s servicer sends one copy by regular mail and another copy by certified mail. It also conducts a field visit to the property, where an agent hand-delivers a copy of the letter to Borrower and offers to go over her loss mitigation options with her in person.
Borrower applies for a loan modification following the instructions in the letter, and the parties spend four months exploring Borrower’s loss mitigation options, with a substantial portion of that time devoted to Borrower gathering and sending in the necessary documents. In late October 2017, Bank approves Borrower for a trial loan modification requiring three timely payments before it will consider Borrower for a permanent modification. The offer sets trial payments to begin November 1, 2017. Borrower makes the November and December 2017 trial payments, but she misses the January 2018 payment, and she makes no more payments on the loan.
During the trial period, Bank sells the loan to Trust, who transfers servicing of the loan to a new servicer. At the end of January 2018, Borrower submits a second loss mitigation application to the new servicer, and she sends all the necessary documents by mid-February 2018. Trust’s servicer determines that Borrower does not qualify for a loan modification and invites her to consider other loss mitigation options such as a deed-in-lieu of foreclosure or short sale. Borrower appeals the loan modification denial, which Trust’s servicer timely reviews and denies.
On May 1, 2018, after nine months of cumulative loss mitigation efforts, Trust’s servicer refers Borrower’s account to foreclosure. It sends Borrower a notice of default advising her of the amount of her delinquency and notifying her that unless she pays the delinquency within thirty days, Trust may accelerate the balance of her mortgage loan and foreclose. After the notice of default’s thirty-day period expires, Trust’s servicer directs its foreclosure attorneys to begin taking the necessary steps to file a foreclosure complaint under Illinois law. The attorneys file the complaint on August 1, 2018, and they serve Borrower on August 15, 2018. Borrower does not answer the complaint, and after sixty days pass from the date of service, Trust moves for a default judgment on October 15, 2018, which the court schedules for hearing on November 15, 2018. At the hearing, an attorney appears for Borrower and requests thirty days to respond to the complaint, which the court allows.
On December 15, 2018, Borrower moves to dismiss the complaint, alleging that Trust lacks standing despite having attached a copy of the blank-indorsed note to its complaint. She obtains a hearing for her motion to dismiss on January 15, 2019. The trial court denies the borrower’s motion to dismiss without briefing, and it gives her another thirty days to answer the complaint. On February 15, 2019, Borrower files her answer and affirmative defenses, alleging for the first time that Trust failed to comply with HUD’s face-to-face meeting requirements. On March 1, 2019, Trust files its reply to the affirmative defenses.
On March 15, 2019, Borrower serves written discovery on Trust. After Trust responds to the written discovery, Borrower sends a notice to depose Trust’s corporate representative. She schedules the deposition for June 1, 2019. Shortly after the deposition, on June 8, 2019, Trust moves for summary judgment. Trust provides copies of the face-to-face letter Bank’s servicer initially sent to Borrower along with the account notes from Bank’s servicer indicating that it sent letters by certified and regular mail. It also provides the account notes from Bank’s servicer describing the field visit. The court sets the motion for presentment on July 1, 2019.
At the hearing, the court enters a briefing schedule giving Borrower twenty-eight days to respond and giving Trust fourteen days to reply. It sets a hearing on the motion for September 1, 2019. Borrower responds by alleging that she only received a copy of the face-to-face letter by regular mail and not certified mail, and she attaches a copy of the letter she received by regular mail to her response. On September 1, 2019, the court enters summary judgment in Trust’s favor and grants Trust’s judgment of foreclosure giving Borrower three months to redeem.
Borrower fails to redeem, and Trust schedules a foreclosure sale for December 15, 2019. After the sale, Trust moves to approve the sale, and it receives a hearing date for its motion on January 7, 2020. The court enters a briefing schedule on the motion giving Borrower twenty-eight days to respond and giving Trust fourteen days to reply. It sets a hearing date for March 1, 2020. Borrower does not file a response to the motion, and on March 1, 2020, the court enters the order approving sale.
On March 30, 2020, Borrower files a notice of appeal challenging the trial court’s ruling. After briefing and oral arguments, the appellate court finds that the question of whether Bank’s servicer sent the letter by certified mail constitutes a material issue of fact. On January 15, 2021, over three and a half years after Borrower’s initial payment default, the appellate court reverses the trial court’s judgment and remands for further proceedings.
Applying Olivera to this hardly unrealistic timeline, Trust would face a decision after the appellate court’s ruling. It could continue to litigate whether Bank’s servicer sent the face-to-face letter by certified mail, or it could cut its losses and forgive three and a half years of missed payments — amounting to $42,475.50 of combined principal and interest — to bring the loan current. Importantly, Trust must base this decision not on a definitive ruling that Bank’s servicer failed to comply, but instead on the chance that Trust may not be able to prove Bank’s servicer complied — a prospect that only first arose as a realistic possibility over three years after Borrower’s first payment default.
The Olivera court agreed “to an extent” that this result, i.e. “requir[ing] a lender to forgive potentially years of missed payments,” was “unjust.” Nevertheless, the court pushed forward, deeming the openly recognized injustice of its holding mitigated because it “simply incentivizes lenders to follow the rules or quickly cure any violation thereof.” So when should either Bank or Trust in this hypothetical have “quickly cured” the alleged possible violation of HUD’s face-to-face meeting rules by bringing the loan current under Olivera?
Should Bank have brought the loan current after its servicer fully complied with the regulation, while the servicer was negotiating a loan modification with Borrower in response to its HUD face-to-face letter? Should Bank have brought the loan current after it approved Borrower for a trial loan modification? Should Trust have brought the loan current when Borrower defaulted on the trial loan modification, or after it determined Borrower could not qualify for a new modification? Should Trust have brought the loan current after it filed its foreclosure, or after Borrower moved to dismiss the foreclosure complaint on grounds the trial court rejected without briefing? Or should Trust have brought the loan current after Borrower filed her affirmative defenses, or when the trial court ruled in Trust’s favor on the face-to-face issue, or after the trial court confirmed the foreclosure sale, or after the parties finished briefing the appeal, or after the appellate court conducted oral arguments?
Of course, it would not have made sense for either Bank or Trust to “quickly cure” its alleged violation and bring the loan current at any of those points. Bank never had any indication that its servicer failed to comply with HUD’s face-to-face requirement. Indeed, its servicer did comply. The only question is whether Trust — who later purchased the loan — can prove Bank’s servicer complied. Moreover, the first indication Trust had that a court may not accept the prior servicer’s notes alone as proof of certified mailing occurred when the appellate court reversed the trial court’s summary judgment order, and even then Trust still had no definitive reason to believe Bank’s servicer failed to comply with HUD regulations, or even that Trust necessarily could not ultimately prove full compliance. The problem facing Trust is that it now risks having to forgive more principal and interest for every month that goes by while it waits to see what evidence the trial court, and then the appellate court, will accept as proof of compliance.
Yet over three and a half years passed between Borrower’s first payment default and the appellate court’s ruling. Bringing the loan current in accordance with Olivera’s new strict compliance standard would involve forgiving over $40,000 in principal and interest. Trust must therefore decide whether to risk having to forgive even more principal and interest for the possible benefit of not having to forgive any principal and interest at all if it can prove the prior servicer’s compliance — all despite Bank and Trust’s extensive efforts to negotiate a loan modification in good faith, and despite Trust moving as quickly as reasonably possible to finish the foreclosure once it became clear that continued loss mitigation efforts would not bear fruit. Illinois courts should not interpret HUD regulations to compel such an impractical and absurd result.
Adverse and Unintended Consequences for Borrowers
Importantly, applying the Olivera opinion to real-world fact patterns may also cause adverse and unintended consequences for borrowers. Initially, forgiving over $40,000 in principal and interest in accordance with Olivera could create tax consequences for borrowers that the Olivera court may not have considered. As other courts have recognized, Congress created the FHA-insured mortgage loan program to help low to moderate income borrowers obtain financing from reputable lenders. Potentially imputing a significant amount of additional taxable income on low to moderate income borrowers could significantly affect their tax liability, possibly cutting into — or altogether wiping out — tax refunds that many families rely on as part of their yearly income.
The lender could avoid this negative result for borrowers by instead moving up the next payment’s due date, rather than forgiving missed payments outright. Consider Appendix No. 2’s modified amortization schedule for the hypothetical above. In the hypothetical, Borrower first defaulted on her July 1, 2017, payment. Instead of forgiving over $40,000 in principal and interest, Trust could alternatively move the due date for that payment up to January 1, 2021, which would return Borrower to the position of not having missed three full monthly installments without resulting in a huge potential increase in Borrower’s taxable income. However, that would then create either a balloon payment of $39,684.87 when the loan matured after Borrower’s July 1, 2042, payment, or Trust would have to reamortize and increase the remaining payments to allow Borrower to pay the full balance by the maturity date. The lender likely could not take either of these actions without the borrower’s agreement.
Notably, the parties’ mortgage contract does not expressly contemplate any of these scenarios, including Olivera’s requirement that lenders forgive monthly payments, which only highlights the problems with applying Olivera to real-world fact patterns. The ruling effectively forces the parties to rewrite their contractual obligations to adjust for the court’s desire to mandate strict compliance with HUD regulations that are not expressly included in the contracts themselves. And this is all despite HUD having specified that it never intended for courts to treat regulations that do not specifically state they are a prerequisite to acceleration or foreclosure, such as the face-to-face meeting requirement, as a bar to foreclosure.
Alternatively, the lender could also choose not to forgive significant portions of principal and interest and simply leave the entire loan balance as a mortgage lien against the property without foreclosing. At most, reading the mortgage contract together with HUD’s regulations only prevents the lender from accelerating the loan balance and foreclosing for payment defaults. The lender’s failure to strictly comply with HUD’s face-to-face meeting requirements would not invalidate the mortgage against the property, or prevent foreclosure for non-payment defaults. Rather, the mortgage would remain, continuing to accrue interest and late charges (among other fees), and preventing the borrower from selling the property. In other words, to purportedly protect borrowers “faced with the immediate problem of” foreclosure, Olivera creates a scenario where borrowers could instead face the long-term problem of being stuck in a house they cannot sell, encumbered by ever-increasing debt they cannot repay or refinance.
Relatedly, Olivera’s impact on the borrower’s ability to sell the property also runs counter to Illinois courts’ longstanding recognition that “law and public policy favor the free alienability and transferability of property.” The Second District in other contexts has described analytical approaches that leave the lender “without any remedy unless and until the property was sold or transferred” as an “unreasonable and unjust result” that would “reward” the borrower for “defaulting every month” for an extended period of time. Thus, when applied to real-world fact patterns, Olivera creates an unreasonable and unjust result for lenders that rewards borrowers in the short term for continuing to ignore their payment obligations while harming borrowers in the long term by locking them into property ownership without any ability to sell the property, build equity in the property, or otherwise enjoy the attendant financial benefits.
Further, Illinois courts treat mortgage loans as installment contracts. “The general rule is that where a money obligation is payable in installments, a separate cause of action arises on each installment and the statute of limitations begins to run against each installment as it becomes due.” Also: “the party entitled to payments may bring separate actions on each installment as it becomes due or wait until several installments are due and then sue for all such installments in one cause of action.” Thus, even if HUD’s regulations prevent acceleration and foreclosure under Olivera’s strict compliance standard, the lender could obtain separate judgments against the borrower for each missed installment payment or sue for multiple missed installments at once.
In fact, the lender in the hypothetical above could presumably dismiss its foreclosure after the appellate court’s adverse ruling, accept Olivera’s premise that its alleged failure to comply with the regulation prevented it from properly accelerating the loan, sue on three and a half years of missed unaccelerated installment payments, and then record and foreclose a judgment lien for its judgment on those missed payments. At that point, the lender’s mortgage would take priority over its separate judgment lien, and the lender could recover the full amount due under its senior mortgage from the proceeds of its judgment lien foreclosure sale.
Simply put, Olivera does not protect borrowers “faced with the immediate problem of the foreclosure action,” as the court seems to have wanted to do. Instead, the opinion subjects borrowers to a host of unforeseen adverse and unintended consequences with unpredictable outcomes, from increased tax burdens to defending alternate legal actions. Other appellate districts in Illinois should not follow Olivera down this path.
Olivera creates a new strict compliance standard for interpreting HUD’s face-to-face meeting requirement by reading non-existent terms into the mortgage loan documents. Yet HUD itself specified that it did not intend for regulations not expressly stated as prerequisites for acceleration to bar foreclosure, and the Second District’s contrary ruling creates impractical and absurd results that could ultimately harm borrowers. Illinois practitioners should challenge Olivera as needed to prevent it from becoming commonly accepted practice, and other Illinois courts should decline to follow the opinion’s ill-considered analysis.
The opinions expressed in this article are solely those of the author, and they should not be attributed to any other person or entity. Nothing contained in this article represents the official or unofficial position or opinion of any of the author’s current or former employers or clients. The article is not intended as and should not be construed as legal advice. ↑
2021 IL App (2d) 190462. ↑
Id., ¶ 40. ↑
12 U.S.C. § 1701, et seq. ↑
See, e.g., https://www.fdrlibrary.org/housing. ↑
12 U.S.C. § 1701t (internal quotations omitted). ↑
Id., §§ 1701c, 1708; 42 U.S.C. § 1441. ↑
See, e.g., Lakeview Loan Servicing v. Schultz, 2019-Ohio-4689, ¶ 10. See also https://www.hud.gov/program_offices/housing/fhahistory. ↑
See, e.g., 24 C.F.R. § 203.500. ↑
24 CFR 203.604(b). ↑
24 CFR 203.604(d). ↑
See, e.g., Hayes v. M&T Corp., 389 Ill. App. 3d 388, 391 (1st Dist. 2009) (citing Wells Fargo Home Mortg. v. Neal, 398 Md. 705, 721-22 (App. 2007)). ↑
24 C.F.R. § 203.500. ↑
24 C.F.R. § 203.606(a). ↑
See, e.g., Olivera, 2021 IL App (2d) 190462, ⁋ 34 (citing U.S. Bank v. McMullin, 47 N.Y.S.3d 882, 890 (Sup. Ct. 2017); Wash. Mut. Bank v. Mahaffey, 2003-Ohio-4422, para. 24). ↑
54 F.R. 27596 (June 29, 1989) (emphasis added). ↑
See, e.g., 24 C.F.R. § 203.606(a) (“The mortgagee may not commence foreclosure for a monetary default unless at least three full monthly installments due under the mortgage are unpaid . . . [P]rior to initiating any action required by law to foreclose the mortgage, the mortgagee shall notify the mortgagor . . . that the mortgagor is in default and the mortgagee intends to foreclose unless the mortgagor cures the default.”). ↑
See 24 C.F.R. § 203.604(b). ↑
See 54 F.R. 27596. ↑
See, e.g., Wilmington Sav. Fund Soc’y v. West, 2019-Ohio-1249, ⁋ 23. ↑
55 Misc.3d 1053 (2017). In New York, the Supreme Court is the state’s trial level jurisdiction. ↑
Id. at 1061. ↑
Id. at 1059. ↑
Id. at 1064. ↑
Id. at 1061-62. ↑
Id. at 1061. ↑
McMullin, 55 Misc.3d at 1060 n.9. ↑
Id. at 1064. ↑
Id. at 1061-62 (citing 24 C.F.R. § 203.606(a)). ↑
Id. at 1061 (cleaned up). ↑
Id. (emphasis added). ↑
McMullin, 55 Misc. 3d at 1061 (cleaned up). ↑
Id. at 1062. ↑
Id. at 1059, 1064. ↑
The Second District itself rightly acknowledged in Olivera that “plaintiff is generally correct that courts in other jurisdictions have held, in essence, that strict compliance with section 203.604’s three-month window is not required and that, as long as the requirements are reasonably performed before the foreclosure is filed, common sense dictates that the regulations should not be construed to command an impossibility.” 2021 IL App (2d) 190462, ¶ 34. See also, e.g., Kuhnsman v. Wells Fargo, 311 So. 3d 980, 985 (Fla. App. Ct. 2020) (“The [borrowers] urge us to conclude that [the lender] failed to strictly comply with the face-to-face interview requirement. They urge too much.”); U.S. Bank v. Cavanaugh, 2018-Ohio-5365, ¶ 29 (“[R]ead together, [Sections 203.604(b) and 203.606(a)] mandate a face-to-face meeting, or a reasonable attempt to arrange such a meeting, before a lender commences foreclosure proceedings.”); Grimaldi v. U.S. Bank, C.A. No. 16-519, 2018 WL 1997277 *3 (D. R.I. Apr. 27, 2018) (unpublished) (lenders “met their contractual obligation to comply with 24 C.F.R. § 203.604” where they sent three letters to the property and made a field visit five years after the default at issue); Rourk v. Bank of America, No. 12-cv-42, 2013 U.S. Dist. LEXIS 147373 *14-*15 (M.D. Ga. Oct. 11, 2013) (unpublished) (“[T]he Court concludes that [the lender] substantially complied with the requirement that it make a reasonable effort to arrange a face-to-face meeting with [the borrower].”). ↑
Olivera, 2021 IL App (2d) 190462, ¶ 35. ↑
Id., ⁋ 50. ↑
Id., ⁋ 35 (cleaned up). ↑
Id., ¶ 38 (emphasis in original). ↑
Id., ¶ 41. ↑
Olivera, 2021 IL App (2d) 190462, ⁋ 40. ↑
120 Ill. App. 3d 576 (3d Dist. 1983). ↑
Olivera, 2021 IL App (2d) 190462, ¶¶ 35-36 (“Illinois courts, starting with Denton, have held that failure to comply with HUD’s servicing regulations is a defense to foreclosure.”). ↑
Denton, 120 Ill. App. 3d at 579-80. ↑
Id. at 579. ↑
Id. (emphasis added). ↑
La Throp v. Bell Fed. Sav. & Loan, 68 Ill.2d 375 (1977). ↑
Id. at 387. ↑
Id. at 388. ↑
See, e.g., MXL Industries v. Mulder, 252 Ill. App. 3d 18, 25-26 (2d Dist. 1993) (discussing E. Farnsworth, Farnsworth on Contracts (1990)). ↑
Id. at 25. ↑
Id. at 25-26. ↑
Id. at 26. ↑
Id. at 25-26. ↑
MXL Industries v. Mulder, 252 Ill. App. 3d at 27-28. ↑
Associate Asset Mgmt v. Cruz, 2019 IL App (1st) 182678, ¶ 34 (emphasis added). ↑
See 54 F.R. 27596. ↑
See 24 C.F.R. § 203.604(b). ↑
See Olivera, 2021 IL App (2d) 190462, ¶ 35 (“The failure to comply with [HUD’s] servicing regulations which are mandatory and have the force and effect of law can be raised in a foreclosure proceeding as an affirmative defense.”) (quoting Denton, 120 Ill. App. 3d at 579) (cleaned up). ↑
La Throp, 68 Ill.2d at 388. ↑
Perez v. IDCFS, 384 Ill. App. 3d 770, 772 (4th Dist. 2008). ↑
Apostolov v. Johnson, 2018 IL App (1st) 173084, ¶ 24. ↑
24 C.F.R. § 203.500 (emphasis added). ↑
24 C.F.R. § 203.606(a) (emphasis added). ↑
See Fish v. Kobach, 840 F.3d 710, 740 (8th Cir. 2016) (“When Congress knows how to achieve a specific statutory effect, its failure to do so evinces an intent not to do so.”) (emphasis in original). ↑
54 F.R. 27596 (emphasis added). ↑
Id. (emphasis added). ↑
See 24 C.F.R. § 203.604(b). ↑
54 F.R. 27596. ↑
24 C.F.R. § 203.606(a). ↑
See 24 C.F.R. § 604(b). ↑
54 F.R. 27596. Even to the extent that the Notice of Policy acknowledged HUD’s “general position recited in 24 CFR 203.500, that whether a mortgagee’s refusal or failure to comply with servicing regulations is a legal defense is a matter to be determined by the courts,” the point remains that HUD plainly did not intend to incorporate regulations that did not specifically prohibit foreclosure as a bar to foreclosing, and the relevant considerations under Illinois law are (1) whether the mortgage contract expressly incorporates the prohibition; and (2) whether HUD intended the regulation to bar foreclosure. See, e.g., Cruz, 2019 IL App (1st) 182678, ¶ 34; Perez, 384 Ill. App. 3d at 772. Moreover, Section 203.500 no longer includes the referenced language recited in the Notice of Policy in any event. See 24 C.F.R. § 203.500. ↑
12 C.F.R. § 1024.41(f)(1)(i) (prohibiting foreclosure until “[a] borrower’s mortgage loan obligation is more than 120 days delinquent). ↑
24 C.F.R. § 203.606(a). ↑
See, e.g., Apostolov, 2018 IL App (1st) 173084, ¶ 24. ↑
Olivera, 2021 IL App (2d) 190462, ¶ 36 (quoting Denton, 120 Ill. App. 3d at 579). ↑
42 U.S.C. § 1441 (expressly affirmed by the Housing Act at 12 U.S.C. § 1701t). ↑
See, e.g., Country Mut. Ins. v. Livorsi Marine, 222 Ill. 2d 303, 319 (2006) (“Balancing dueling policy concerns is a more appropriate role for the legislature than this court.”). ↑
42 U.S.C. § 1441. ↑
Perez, 384 Ill. App. 3d at 772. ↑
Nowak v. Country Club Hills, 2011 IL 111838, ¶ 21. ↑
The Second District previously left open whether “the use of a private carrier [as opposed to certified U.S. mail] can never satisfy section 203.604(d),” and it questioned whether a tracking label showing that the lender prepared the letter for delivery with tracking information could sufficiently demonstrate strict compliance with the regulation. See U.S. Bank v. Hernandez, 2017 IL App (2d) 160850, ¶¶ 32-33. ↑
See Appx. No. 1, Lns 60-103. ↑
Olivera, 2021 IL App (2d) 190462, ¶ 40. ↑
See, e.g., Nowak, 2011 IL 111838, ¶ 21. ↑
As a general rule, forgiven debt can qualify as taxable income, although some temporary exceptions may currently apply. See I.R.S. Pub. 4681 (Jan. 26, 2022), available at irs.gov/pub/irs-pdf/p4681.pdf. This article does not address Olivera’s implications under tax law other than to note that its ruling could result in unacknowledged consequences for borrowers now and in the future. ↑
See Neal, 398 Md. at 711 n.3. ↑
See Appx. No. 2, Ln. 60. ↑
Id., Ln. 318. ↑
See, e.g., 54 F.R. 27596. ↑
Under Illinois statutory law, the mortgage would remain a lien until at least twenty years from the borrower’s last payment, with the option for the lender to extend the lien for an additional twenty years at least once. See 735 ILCS 5/13-116. The standard HUD-approved mortgage form only adopts the relevant regulatory language precluding acceleration and foreclosure in the case of payment defaults. It should allow foreclosure in other situations, including once the loan reaches maturity under its own terms. ↑
The standard HUD-approved mortgage form allows foreclosure in most situations where the borrower sells or transfers its interest in the property. ↑
Martin v. Prairie Rod and Gun Club, 39 Ill. App. 3d 33, 36 (3d Dist. 1976). ↑
Bank of N.Y. Mellon v. Dubrovay, 2021 IL App (2d) 190540, ¶ 38. ↑
See, e.g., Wilmington Savings Fund v. Barrera, 2020 IL App (2d) 190883, ¶ 19; Deutche Bank v. Sigler, 2020 IL App (1st) 191006, ¶ 42. ↑
Sigler, 2020 IL App (1st) 191006, ¶ 42 (internal quotations omitted). ↑
Barrera, 2020 IL App (2d) 190883, ¶ 19 (internal quotations omitted). ↑
Illinois courts appear to disagree about how to treat acceleration after a voluntary dismissal in the context of the state’s single refiling rule. Compare, e.g., Dubrovay, 2021 IL App (2d) 190540, ¶ 28 (lender could recover for installment payments that came due after voluntary dismissal of prior foreclosure) and McHenry Savings Bank v. Moy, 2021 IL App (2d) 100099, ¶ 37 (lender could recover for installment payments that came due after an adverse judgment and a dismissal with prejudice in respective prior foreclosures) with Deutsche Bank v. Sigler, 2020 IL app (1st) 191006, ¶ 54 (single refiling rule barred subsequent filing based on different default after more than one voluntary dismissal). However, Olivera’s underlying premise relies on the mortgage contract precluding acceleration if not permitted by HUD regulations. Accordingly, accepting Olivera’s ruling necessarily means that the lender could not have effected acceleration, which should thereby allow it to pursue all of the borrower’s missed installment payments. ↑
See, e.g., 735 ILCS 5/12-101 (judgment liens “may be foreclosed . . . in the same manner as a mortgage of real property”); 735 ILCS 5/15-1106(e) (“General principles of law and equity, such as those relating to . . . priority . . . supplement [the Illinois Mortgage Foreclosure Law] unless displaced by a particular provision of it.”). ↑
Olivera, 2021 IL App (2d) 190462, ¶ 36. ↑
Appendix No. 1
Amortization schedule showing monthly amounts due on hypothetical loan described in the text.
Appendix No. 2
Modified amortization schedule showing monthly amounts due on hypothetical loan described in the text.