In an effort to address the surge of foreclosure cases flooding Connecticut courts as a result of the recession and housing collapse, Connecticut instituted one of the nation’s first foreclosure mediation programs in 2008 pursuant to P.A. 08-176. The purpose of the act was to implement a procedure wherein lenders and homeowners could achieve a mutually agreeable resolution via the court’s foreclosure mediation program.
The Judicial Branch hired, and rigorously trained, mediators who would serve as neutral third parties in mediation sessions. The role of the mediator in foreclosure mediation sessions was to maintain neutrality, ensure all parties negotiated in good faith, and to assist parties in reaching a resolution.
Resolution could take many forms. For matters in which home retention was possible, the route taken by lenders and homeowners led to reviewing options like reinstatement, mortgage modifications, repayment plans, forebearance plans, and/or hybrid plans combining elements of each. For matters where liquidation was the chosen path, the pros and cons of sale, short sale, deed in lieu, and/or stipulation to judgment were weighed.
The program was a success. The judicial branch reports that of the 13,844 cases that completed mediation from July 1, 2008 through May 31, 2011, 82% of those cases settled, and of those 82%, 67% involved resolutions wherein the homeowner retained the property, and 15% involved resolutions wherein liquidation was the chosen option. What this means is that less time and money was spent in litigation, and more importantly what this means is that parties were able to achieve resolutions that made sense for all concerned.
The Connecticut foreclosure mediation program served as a model for other states’ mediation programs, and has been extended, and expanded upon, a topic of virtually every legislative session since its inception.
It’s no secret that I’m a huge supporter of the foreclosure mediation program. I was, after all, one of its own. The reason why I’m such a big fan, however, is not simply rooted in nostalgia for a job I loved – I support it because the program works.
Now let me be clear. As with everything in life there are those who do not approach the program in good faith and are disingenuous in negotiations. I’m not speaking about those cases. When I say the program works what I mean is that when both parties come to the table to have a genuine discussion about how to resolve the case, and each holds up his end of the bargain, and each is flexible and willing to think outside the box – resolutions happen.
Something happens to people when a lawsuit is filed. Suddenly there’s a “you versus me” attitude. You can’t really blame people, after all, everything about our system of justice fosters a sense of divisiveness. Just look at the way a court room is set up. Tables are on opposite sides, parties cannot speak to each other but can only speak to a Judge or attorney when questioned directly. Even outside the courtroom parties cannot speak, everything must vetted through and passed on by the attorneys.
So much polarization eventually leads parties to forget that really they both want the same thing – not to spend time and money in a lawsuit. That’s a pretty big commonality between the two. When we look at the matter from that perspective, what’s actually on the table is just a problem needing to be solved. The way we can go about solving it is ferreted out through weighing options, crunching numbers, discussing alternatives, and negotiating. All of that would not, and did not, take place were it not for the foreclosure mediation program.
What the program does is get people to the table, get the facts and options laid out, and get people working toward the goal that everyone agrees upon. It makes clients and attorneys alike accountable for their words and actions. Once that dialogue and accountability starts, the momentum keeps going.
The foreclosure mediation program has undergone many changes over the last five years and likely will undergo many more in years to come. As new settlements are reached, and regulations and laws passed on the federal and state levels, Judges, the judicial branch staff, and mediators are consistently being trained to keep up with current programs and procedures.
Attorneys should be doing the same thing.
The foreclosure mediation program was once again the topic of discussion for our state’s most recent legislative session. Public Act 13-136 went into effect on July 15, 2013, and has ushered in new duties and timelines for all parties. Be sure to review the statute and counsel your clients on the new procedures, requirements, and obligations that must be met. Attorneys and clients need to ensure compliance with these changes, for failure to be in compliance can lead to penalties and sanctions.
Also be sure to be on the lookout for legal education courses held by bar associations and community groups discussing the changes. For additional information, or for information on where to find CLE’s and trainings discussing the new law, please feel free to contact me.