Regular Session 2021-2022 Senate Bill 0890 P.N. 1142

PRINTER'S NO. 1142

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

890

Session of

2021

INTRODUCED BY SAVAL, COSTA, HUGHES, HAYWOOD, CAPPELLETTI, MUTH,

COMITTA, STREET, KANE, A. WILLIAMS, TARTAGLIONE AND BREWSTER,

OCTOBER 14, 2021

REFERRED TO URBAN AFFAIRS AND HOUSING, OCTOBER 14, 2021

AN ACT

Providing for equitable housing recovery.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Short title.

This act shall be known and may be cited as the Equitable

Housing Recovery Act.

Section 2. Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Borrower." A mortgagor of a mortgage loan.

"COVID-19." The novel coronavirus as identified in the

proclamation of disaster emergency issued by the Governor on

March 6, 2020, published at 50 Pa.B. 1644 (March 21, 2020), and

any renewal of the state of disaster emergency.

"COVID-19 disaster emergency." The disaster emergency as

described in the proclamation of disaster emergency issued by

the Governor on March 6, 2020, published at 50 Pa.B. 1644 (March

21, 2020), and any renewal of the state of disaster emergency.

"COVID-19 eviction." An eviction proceeding in which the

plaintiff's action is based, at least in part, upon nonpayment

of rent or includes a claim for rent or other financial

obligation for use and occupancy due and payable during the

eviction delay period.

"Eviction." A court action for ejectment or for the recovery

of possession of real property arising under the act of April 6,

1951 (P.L.69, No.20), known as The Landlord and Tenant Act of

1951, in which the plaintiff's action is based, at least in

part, upon nonpayment of rent or other financial obligation for

use and occupancy.

"Eviction delay period." The period of time beginning on the

date of issuance of the proclamation of the COVID-19 disaster

emergency and ending on the date on which the secretary

certifies that all the money for use in the Rental and Utility

Assistance Grant Program has been expended or January 1, 2023,

whichever is later.

"Forbearance." A temporary suspension of payments, including

principal and interest and any escrowed payments required to be

paid in the mortgage loan contract.

"Foreclosure." Includes any of the following:

(1) An action of mortgage foreclosure under 231

Pa.R.C.P. Subch. I (relating to action of mortgage

foreclosure).

(2) An action to sell property to recover delinquent

real estate taxes under any of the following:

(i) The act of May 16, 1923 (P.L.207, No.153),

referred to as the Municipal Claim and Tax Lien Law.

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(ii) The act of July 7, 1947 (P.L.1368, No.542),

known as the Real Estate Tax Sale Law.

(3) An action in ejectment under 231 Pa.R.C.P. Subch. C

(relating to action in ejectment) in which the plaintiff

obtained title to the property as a direct or indirect result

of an action described in paragraph (1) or (2) and is seeking

to eject one or more persons who occupied the property prior

to such sale.

(4) An action under the act of November 24, 1976

(P.L.1176, No.261), known as the Manufactured Home Community

Rights Act.

"Foreclosure delay period." The period of time beginning on

the effective date of this act and ending on January 1, 2023, or

180 days from the termination of the borrower's final

forbearance period under section 4(b), whichever is later.

"Government sponsored enterprise" or "GSE." Any of the

following:

(1) The Federal National Mortgage Association, also

known as "Fannie Mae."

(2) The Federal Home Loan Mortgage Corporation, also

known as "Freddie Mac."

"GSE loan." A loan owned or guaranteed by the GSEs.

"Loss mitigation guidelines." As follows:

(1) Protocol established by the owner, guarantor or

investor for a mortgage loan describing the sequence and

content of loss mitigation options that a mortgage servicer

must follow in reviewing a borrower for alternatives to

foreclosure.

(2) The term includes:

(i) The guidelines for loss mitigation developed by

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the GSEs, the Federal Housing Administration, the United

States Department of Veterans Affairs or the United

States Department of Agriculture.

(ii) The guidelines and protocols applicable to

private label mortgage loans through securitization

agreements or other contractual terms.

(3) For federally-backed mortgage loans, the guidelines

include COVID-19 forbearance and postforbearance loss

mitigation options, waterfalls, borrower contact

requirements, fee limits, foreclosure prohibitions and

timelines.

"Loss mitigation option." As the term is defined in 7

Pa.C.S. § 6102 (relating to definitions).

"Mortgage loan." As the term is defined in 7 Pa.C.S. § 6102.

"Mortgage servicer." As the term is defined in 7 Pa.C.S. §

6102.

"Rental and Utility Assistance Grant Program." The rental

assistance program established under Articles I-D and I-E of the

act of April 9, 1929 (P.L.343, No.176), known as The Fiscal

Code.

"Secretary." The Secretary of Human Services of the

Commonwealth.

Section 3. Tenant protections.

(a) Eviction relief.--Notwithstanding any other provision of

law, the following shall apply relating to COVID-19 eviction

actions:

(1) No court in this Commonwealth may accept any filing

or pleading instituting a new COVID-19 eviction action until

60 days following the end of the eviction delay period. The

following apply:

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(i) A landlord may not charge fees or penalties

under the act of April 6, 1951 (P.L.69, No.20), known as

The Landlord and Tenant Act of 1951, for nonpayment of

rent due and payable during the eviction delay period.

(ii) No fees or penalties that result from delayed

or nonpayment of rent during the eviction delay period

may be assessed.

(2) If an eviction action arising under The Landlord and

Tenant Act of 1951 was filed or a judgment by agreement has

been executed within 30 days prior to the issuance of the

proclamation of the COVID-19 disaster emergency, a landlord

may not proceed with the action until 60 days following the

end of the eviction delay period. The following apply:

(i) It shall not be a breach of a covered judgment

by agreement if the tenant complies with all applicable

conditions of the agreement within 60 days following the

end of the eviction delay period.

(ii) No writ may be executed until 60 days following

the end of the eviction delay period.

(iii) A landlord, during the eviction delay period,

otherwise eligible to charge fees or penalties under The

Landlord and Tenant Act of 1951, may not charge fees or

penalties during the eviction delay period or during the

60-day period following the eviction delay period.

(iv) No fees or penalties that result from delayed

or nonpayment of rent during the eviction delay period

may be assessed.

(b) COVID-19 eviction criteria.--Notwithstanding any other

provision of law, following the 60-day period of time after the

eviction delay period provided under subsection (a)(1) and (2),

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no landlord or property owner may commence a COVID-19 eviction

action unless it establishes all of the following criteria:

(1) The parties to the eviction action have exhausted

all available opportunities, and worked in good faith, to

obtain rental assistance through the Rental and Utility

Assistance Grant Program for which the landlord and tenant

are eligible and have not obtained sufficient money through

such programs to cure the arrearage through no fault of the

landlord.

(2) As of the date the complaint is filed, no

administrative orders to correct violations of any municipal

or Commonwealth codes, regulations, ordinances and statutes,

nor any civil or criminal proceedings to enforce uncorrected

violations of these laws, are pending with respect to the

rental unit.

(3) The landlord has provided notice to the tenant of

the availability of the defense specified under subsection

(d).

delay period, no landlord may commence an action for eviction

without providing the tenant and the court with a sworn

affidavit stating that the landlord has satisfied the criteria

in subsection (b).

(d) COVID-19 defense.--A defendant in a COVID-19 eviction

action shall have a complete defense to a claim to recover

possession where any portion of the nonpayment of rent or other

financial obligation for use and occupancy, or any portion of a

mortgage loan delinquency for which the defendant was

responsible, was due to a financial hardship related to or

exacerbated by the COVID-19 pandemic and any of the following

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conditions are met:

(1) Eviction would likely result in the defendant

becoming homeless, needing to move into a homeless shelter or

needing to move into a new residence shared by other people

who live in close quarters.

(2) The defendant's household includes any of the

following:

(i) A minor child.

(ii) An individual with a disability as defined in

section 3 of the Americans with Disabilities Act of 1990

(Public Law 101-336, 42 U.S.C. § 12102).

(iii) An individual who is 60 years of age or older.

(iv) An individual with a medical condition that the

Centers for Disease Control and Prevention deemed to

cause an increased risk of experiencing severe illness

from a COVID-19 infection.

(e) Hearing required.--No court may issue an order for

interim payment of rent or use and occupancy due and payable

during the eviction delay period, without conducting a hearing

and explicitly finding that the tenant is not reasonably likely

to establish the defense specified under subsection (d).

(f) Continuance required.--Notwithstanding any other

provision of law, a court with jurisdiction over a COVID-19

eviction proceeding shall grant a continuance for a time period

until the application for rental assistance through the Rental

and Utility Assistance Grant Program is approved or denied if,

either at the time the answer is timely filed or on the date the

trial is scheduled to commence, all of the following conditions

are satisfied:

(1) The plaintiff's complaint for possession of

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residential property is based upon or includes any claim for

rent or use and occupancy due and payable during the eviction

delay period.

(2) The nonpayment of rent or use and occupancy was due

to a financial hardship related to or exacerbated by the

COVID-19 disaster emergency.

(3) As follows:

(i) Subject to subparagraph (ii), the defendant

demonstrates, to the satisfaction of the court, that the

defendant has a pending application for rental assistance

through the Rental and Utility Assistance Grant Program.

(ii) Notwithstanding subparagraph (i):

(A) The court may consider any meritorious

counterclaim brought in the proceeding.

(B) The court shall issue a stay of execution on

a judgment for possession if the requirements under

this subsection are met.

an execution, or allow the levy on an execution,

before the application has been approved or denied.

Section 4. Homeowner protections.

(a) Foreclosure relief.--Notwithstanding any other provision

of law, the following apply relating to a foreclosure for a

foreclosure delay period:

(1) No court may accept a new action relating to the

foreclosure on a residential property until 60 days following

the foreclosure delay period. The following apply:

(i) During the foreclosure delay period, a plaintiff

or petitioner, otherwise eligible to charge fees or

penalties, may not charge fees or penalties during the

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time of the foreclosure delay period or during the 60-day

period following the foreclosure delay period.

(ii) No fees or penalties that result from delayed

or missed payments during the foreclosure delay period

may be assessed.

(2) If an action relating to the foreclosure of a

residential property was commenced prior to the date of

issuance of the proclamation of the COVID-19 disaster

emergency, a plaintiff or petitioner may not proceed with an

action until 60 days after the end of the foreclosure delay

period. The following apply:

(i) During the foreclosure delay period, a plaintiff

or petitioner, otherwise eligible to charge fees or

penalties, may not charge fees or penalties during the

foreclosure delay period or during the 60-day period

following the foreclosure delay period.

(ii) No fees or penalties that result from delayed

or missed payments during the foreclosure delay period

may be assessed.

(b) Loss mitigation compliance.--

(1) A mortgage servicer shall comply with all applicable

Federal loss mitigation guidelines regarding COVID-19-related

forbearances and postforbearance loss mitigation options.

(2) Within 30 days of the effective date of this act,

each mortgage servicer shall send to each borrower in this

Commonwealth with a mortgage loan that is serviced by the

mortgage servicer a notice of COVID-19 mortgage relief

specifying the general loss mitigation guidelines that apply

to the borrower's loan. The notice must include all of the

following:

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(i) The identity of the entity that owns the loan

and the identity of any Federal entity that owns, insures

or guarantees the loan.

(ii) A summary of the forbearance and

postforbearance loss mitigation options that are

available for the loan that is serviced, including

references to where the complete loss mitigation

guidelines are available to the public.

(iii) Information on how to request the available

forbearance and postforbearance loss mitigation options.

(3) The Department of Banking and Securities shall

create a template of the notice under paragraph (2) in

English and Spanish. The following apply:

(i) The notice shall clearly indicate "This is an

Important Notice. Please have it translated." in the

seven most commonly spoken languages in this

Commonwealth, based on the most recent Federal decennial

census.

(ii) The envelope containing the notice must state

in minimum size 12 font "Important Notice" in the seven

most commonly spoken languages in this Commonwealth,

based on the most recent Federal decennial census.

(4) The mortgage servicer shall disclose and implement

COVID-19 forbearance and postforbearance loss mitigation

options that:

(i) are consistent with the COVID-19 loss mitigation

guidelines for forbearance and postforbearance relief

applicable to loans owned or insured by a GSE, the

Federal Housing Administration, the United States

Department of Veterans Affairs or the United States

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Department of Agriculture whenever one of these Federal

entities owns or insures the mortgage loan; or

(ii) if the mortgage loan is not owned or insured by

a Federal agency under subparagraph (i), are consistent

with the loss mitigation guidelines for a GSE loan,

including any amendments, updates or revisions to that

guidance.

(5) A mortgage servicer that claims that investor

guidelines, applicable law or other restrictions prohibit the

mortgage servicer from implementing the forbearance or

postforbearance options described in paragraph (4) shall

provide to the Office of Attorney General and all affected

borrowers documentation of the specific guidelines and laws

that the mortgage servicer contends support the inability to

implement those options. A borrower shall have the

opportunity to dispute the claim. All of the following apply:

(i) The Office of Attorney General shall have the

authority to exercise oversight over and investigate such

disputes and assess appropriate penalties if a mortgage

servicer makes a claim of exemption not substantially

justified in law or fact.

(ii) A mortgage servicer is presumed to have the

ability to comply with paragraph (4) unless the mortgage

servicer has documented in accordance with this section

that investor guidelines, applicable law or other

restrictions prohibit the mortgage servicer from

implementing the forbearance or postforbearance options

described in paragraph (4) and this documentation is not

in dispute.

(iii) Assertion of an unjustified claim for

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exemption shall constitute an unfair or deceptive act or

practice for which the borrower may seek remedies under

the act of December 17, 1968 (P.L.1224, No.387), known as

the Unfair Trade Practices and Consumer Protection Law.

(6) If a mortgage servicer claims an inability to

implement paragraph (4), the mortgage servicer shall provide

notice to the borrower of all forbearance and postforbearance

options available for the mortgage loan that are consistent

with this law and to the extent that it is within the

servicer's contractual authority to do so. A mortgage

servicer that intends to offer only lump sum repayment or

short-term repayment plans as options for reinstatement after

forbearance shall clearly and conspicuously disclose that

these will be the affected borrower's limited options before

the borrower enters into a forbearance plan or, if the

borrower is in a forbearance plan on the effective date of

this act, within 30 days of the effective date of this act.

(7) Mortgage servicers shall ask borrowers the language

in which they prefer to communicate, shall document that

language preference in the servicing file and shall provide

oral interpretation or a bilingual representative fluent in

that language when communicating about loss mitigation

options in accordance with the requirements of this section.

(8) A mortgage servicer shall attach to a notice of sale

recorded and served in connection with a foreclosure a

certification of service of the disclosures described in

paragraph (2). A mortgage servicer may not record or serve a

notice of sale, schedule a foreclosure sale, publish notice

of a foreclosure sale, conduct a foreclosure sale or file a

complaint of judicial foreclosure unless the mortgage

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servicer has done all of the following:

(i) Provided the disclosures with the content, and

in accordance with the time frame, described in paragraph

(2).

(ii) Considered each borrower who expressed an

interest in COVID-19 mortgage relief for the options

available under the loss mitigation guidelines described

in the disclosures provided under paragraph (4).

(1) A borrower who is harmed by a material violation of

this section may bring an action to obtain injunctive relief,

damages, restitution and any other remedy to redress the

violation.

(2) A court may award a prevailing borrower reasonable

attorney fees and costs in an action based on a violation of

this section in which injunctive relief against a sale,

including a temporary restraining order, is granted.

(3) A court may award a prevailing borrower reasonable

attorney fees and costs in an action for a violation of this

section in which relief is granted but injunctive relief

against a sale is not granted.

(4) The rights, remedies and procedures provided to

borrowers by this section are in addition to and independent

of any other rights, remedies or procedures under any other

law.

(5) This section shall not be construed to alter, limit

or negate any other rights, remedies or procedures provided

to borrowers by law.

(d) Waivers prohibited.--A waiver by a borrower of the

provisions of this section shall be deemed contrary to public

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policy and is void and unenforceable.

(e) Forms.--The Department of Banking and Securities shall

develop and issue regulations and standardized forms for the

written documentation required in subsection (b), but the

absence of such forms shall not render this act inoperable.

Section 5. Certification of secretary.

When all the money for use in the Rental and Utility

Assistance Grant Program has been expended, the secretary shall

certify that fact and shall transmit notice of that fact to the

Legislative Reference Bureau for publication in the Pennsylvania

Bulletin as soon as practicable.

Section 6. Violations.

A violation of this act shall constitute an unfair or

deceptive act or practice under the act of December 17, 1968

(P.L.1224, No.387), known as the Unfair Trade Practices and

Consumer Protection Law, and shall be subject to the enforcement

provisions and remedies contained in that act.

Section 7. Severability.

The provisions of this act are severable. If a provision of

this act or the application thereof to a person or circumstance

is held invalid, the invalidity shall not affect other

provisions or applications of this act which can be given effect

without the invalid provision or application.

Section 8. Effective date.

This act shall take effect immediately.

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