S.Amdt. 548

SA 548. Mr. MARTINEZ (for himself, Mr. Dodd, and Mr. Reid) submitted
an amendment intended to be proposed to amendment SA 98 proposed by Mr.
Inouye (for himself and Mr. Baucus) to the bill H.R. 1, making
supplemental appropriations for job preservation and creation,
infrastructure investment, energy efficiency and science, assistance to
the unemployed, and State and local fiscal stabilization, for fiscal
year ending September 30, 2009, and for other purposes; which was
ordered to lie on the table; as follows:

At the end of division B, add the following:

TITLE VI--FORECLOSURE MITIGATION

SEC. 6001. SHORT TITLE.

This title may be cited as the ``Help Families Keep Their
Homes Act of 2009''.

SEC. 6002. DEFINITIONS.

For purposes of this title--
(1) the term ``securitized mortgages'' means residential
mortgages that have been pooled by a securitization vehicle;
(2) the term ``securitization vehicle'' means a trust,
corporation, partnership, limited liability entity, special
purpose entity, or other structure that--
(A) is the issuer, or is created by the issuer, of mortgage
pass-through certificates, participation certificates,
mortgage-backed securities, or other similar securities
backed by a pool of assets that includes residential mortgage
loans;
(B) holds all of the mortgage loans which are the basis for
any vehicle described in subparagraph (A); and
(C) has not issued securities that are guaranteed by the
Federal National Mortgage Association, the Federal Home Loan
Mortgage Corporation, or the Government National Mortgage
Association;
(3) the term ``servicer'' means a servicer of securitized
mortgages;
(4) the term ``eligible servicer'' means a servicer of
pooled and securitized residential mortgages;
(5) the term ``eligible mortgage'' means a residential
mortgage, the principal amount of which did not exceed the
conforming loan size limit that was in existence at the time
of origination for a comparable dwelling, as established by
the Federal National Mortgage Association;
(6) the term ``Secretary'' means the Secretary of the
Treasury;
(7) the term ``effective term of the Act'' means the period
beginning on the effective date of this title and ending on
December 31, 2011;
(8) the term ``incentive fee'' means the monthly payment to
eligible servicers, as determined under section 6003; and
(9) the term ``prepayment fee'' means the payment to
eligible servicers, as determined under section 6003(b).

SEC. 6003. PAYMENTS TO ELIGIBLE SERVICERS AUTHORIZED.

(a) Authority.--The Secretary is authorized to make
payments to eligible servicers, subject to the terms and
conditions established under this title.
(b) Fees Paid to Eligible Servicers.--
(1) In general.--An eligible servicer may collect
reasonable incentive fee payments, as established by the
Secretary, not to exceed $2,000 per loan.
(2) Consultation.--The fees permitted under this section
shall be subject to standards established by the Secretary,
in consultation with the Secretary of Housing and Urban
Development and the Chairman of the Board of Directors of the
Federal Deposit Insurance Corporation, which standards
shall--
(A) include an evaluation of whether an eligible mortgage
is affordable for the remainder of its term; and
(B) identify a reasonable fee to be paid to the servicer in
the event that an eligible mortgage is prepaid.
(3) Form of payment.--Fees permitted under this section may
be paid in a lump sum or on a monthly basis. If paid on a
monthly basis, the fee may only be remitted as long as the
loan performs.
(c) Safe Harbor.--Notwithstanding any other provision of
law, and notwithstanding any investment contract between a
servicer and a securitization vehicle, a servicer--
(1) owes any duty to maximize the net present value of the
pooled mortgages in the securitization vehicle to all
investors and parties having a direct or indirect interest in
such vehicle, and not to any individual party or group of
parties; and
(2) shall be deemed to act in the best interests of all
such investors and parties if the servicer agrees to or
implements a modification, workout, or other loss mitigation
plan for a residential mortgage or a class of residential
mortgages that constitutes a part or all of the pooled
mortgages in such securitization vehicle, if--
(A) default on the payment of such mortgage has occurred or
is reasonably foreseeable;
(B) the property securing such mortgage is occupied by the
mortgagor of such mortgage or the homeowner; and
(C) the servicer reasonably and in good faith believes that
the anticipated recovery on the principal outstanding
obligation of the mortgage under the modification or workout
plan exceeds, on a net present value basis, the anticipated
recovery on the principal outstanding obligation of the
mortgage through foreclosure;
(3) shall not be obligated to repurchase loans from, or
otherwise make payments to, the securitization vehicle on
account of a modification, workout, or other loss mitigation
plan that satisfies the conditions of paragraph (2); and
(4) if it acts in a manner consistent with the duties set
forth in paragraphs (1) and (2), shall not be liable for
entering into a modification or workout plan to any person--
(A) based on ownership by that person of a residential
mortgage loan or any interest in a pool of residential
mortgage loans, or in securities that distribute payments out
of the principal, interest, and other payments in loans in
the pool;
(B) who is obligated pursuant to a derivative instrument to
make payments determined in reference to any loan or any
interest referred to in subparagraph (A); or
(C) that insures any loan or any interest referred to in
subparagraph (A) under any provision of law or regulation of
the United States or any State or political subdivision
thereof.
(d) Reporting Requirements.--
(1) In general.--Each servicer shall report regularly, not
less frequently than monthly, to the Secretary on the extent
and scope of the loss mitigation activities of the mortgage
owner.
(2) Content.--Each report required by this subsection shall
include--
(A) the number and percent of residential mortgage loans
receiving loss mitigation that have become performing loans;
(B) the number and percent of residential mortgage loans
receiving loss mitigation that have proceeded to foreclosure;
(C) the total number of foreclosures initiated during the
reporting period;
(D) data on loss mitigation activities, including the
performance of mitigated loans, disagreggated for each form
of loss mitigation, which forms may include--
(i) a waiver of any late payment charge, penalty interest,
or any other fees or charges, or any combination thereof;
(ii) the establishment of a repayment plan under which the
homeowner resumes regularly scheduled payments and pays
additional amounts at scheduled intervals to cure the
delinquency;
(iii) forbearance under the loan that provides for a
temporary reduction in or cessation of monthly payments,
followed by a reamortization of the amounts due under the
loan, including arrearage, and a new schedule of repayment
amounts;
(iv) waiver, modification, or variation of any material
term of the loan, including short-term, long-term, or life-
of-loan modifications that change the interest rate, forgive
or forbear with respect to the payment of principal or
interest, or extend the final maturity date of the loan;
(v) short refinancing of the loan consisting of acceptance
of payment from or on behalf of the homeowner of an amount
less than the amount alleged to be due and owing under the
loan, including principal, interest, and fees, in full
satisfaction of the obligation under such loan and as part of
a refinance transaction in which the property is intended to
remain the principal residence of the homeowner;
(vi) acquisition of the property by the owner or servicer
by deed in lieu of foreclosure;
(vii) short sale of the principal residence that is subject
to the lien securing the loan;
(viii) assumption of the obligation of the homeowner under
the loan by a third party;
(ix) cancellation or postponement of a foreclosure sale to
allow the homeowner additional time to sell the property; or
(x) any other loss mitigation activity not covered; and
(E) such other information as the Secretary determines to
be relevant.

[[Page S1879]]

(3) Public availability of reports.--After removing
information that would compromise the privacy interests of
mortgagors, the Secretary shall make public the reports
required by this subsection and summary data.

SEC. 6004. AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated to the Secretary,
such sums as may be necessary to carry out this title.

SEC. 6005. SUNSET OF AUTHORITY.

The authority of the Secretary to provide assistance under
this title shall terminate on December 31, 2011.
______