First Judicial District Court State of New Mexico Counties of Los Alamos, Rio Arriba, and Santa Fe No. D-0101-CV-___________ IN THE MATTER OF A FORECLOSURE MEDIATION ADR OPTION ADMINISTRATIVE ORDER No. 2009-__ The District Judges of the First Judicial District Court hereby adopt the following order authorizing the establishment of a Foreclosure Mediation option in the Court’s Alternative Dispute Resolution Program Pilot Project. This Administrative Order may be modified by a majority of judges in a monthly judges meeting, as recorded in the meeting minutes without a need for another Administrative Order. The foregoing order shall become effective on ___________, 2009. ____________________________ ______________________________ Stephen Pfeffer, Chief Judge, Div. VI Barbara J. Vigil, District Judge, Div. I ________________________________ ___________________________________ James A. Hall, District Judge, Div. II Raymond Z. Ortiz, District Judge, Div. III ________________________________ ___________________________________ Michael E. Vigil, District Judge, Div. IV Sheri A. Raphaelson, District Judge, Div. V _________________________________ Daniel A. Sanchez, District Judge, Div. VII FORECLOSURE MEDIATION OPTION of the ALTERNATIVE DISPUTE RESOLUTION PROGRAM 1. Purpose. The purpose of this Administrative Order is to authorize and systematize the mediation of home mortgage foreclosure cases in a timely and cost efficient manner in order to minimize case processing time, save costs and expense for the parties, and assist the parties in working out new mortgage terms where possible or other agreements mutually acceptable to both parties. 2. Administration. This program shall be administered by the Court Constituent Services Director, as part of the Alternative Dispute Resolution Program Pilot Project and following the procedures thereof. The court may appoint standing or ad hoc committees of judges, lawyers and others to provide guidance and assistance. A) Foreclosure mediators shall be settlement facilitators on the ADR Program list who have completed subject matter training approved by the Court or who have prior experience representing clients in foreclosure actions. 3. Application. This order applies to mortgage foreclosure actions involving one to four unit residences in which the owner occupies at least one unit (“owner-occupied residence”), which actions are properly before the First Judicial District Court. Nothing in this order prevents parties to any other foreclosure action from availing themselves of this program. 4. Notice required. The plaintiff in any mortgage foreclosure action brought against the owner of an owner-occupied residence must notify the defendant homeowner(s) of the availability of the foreclosure mediation program by serving a copy of the attached Notice with the Complaint and Summons in the case. (A) The plaintiff must also designate a person who has the authority to negotiate settlement of the case, and provide complete, current contact information for that person including mailing address, direct telephone number, fax number, and email address and shall make such person available to the defendant for telephonic or in- person negotiations. 5. Procedure. All procedures described in the Administrative Order authorizing the Alternative Dispute Resolution Program Pilot Project shall apply to foreclosure mediation, except as such procedures may be modified herein. (A) Either party may file a Request for Referral to Foreclosure Mediation using the form available from the court. A copy of the filed Request must be provided to the court’s ADR Program. (B) A mediator who is an attorney on the court’s list of qualified foreclosure mediators shall be appointed, and an Order of Referral to Foreclosure Mediation shall be entered. (C) The parties shall consult with the mediator to schedule a mediation session, which mediation session shall be convened not later than 30 days after entry of the Referral Order. (D) Each party shall complete the appropriate information response and provide it to the mediator and the other party not later than 10 working days before the scheduled date of the mediation. The information responses shall NOT be filed. (E) Parties who do not reside or maintain a business presence in New Mexico may attend the mediation session telephonically. 6. Preparation. The parties and their counsel, if any, shall be prepared to negotiate in a mutual effort to reach a fair and reasonable settlement. (A) The plaintiff shall provide (1) electronic copies of the note and any and all subsequent assignments proving a clear chain of title to the subject note and mortgage; (2) a listing of all payments made under the note; and (3) a reinstatement amount if applicable, to the defendant homeowner(s) and the mediator not less than 10 working days before the scheduled date of the mediation. (B) The defendant homeowner(s) shall consult with Consumer Credit Counseling Services or another HUD-certified housing counselor not less than 10 working days before the scheduled date of the mediation. 7. Attendance. The plaintiff or its representative or agent with settlement authority and the defendant homeowner(s) shall attend every scheduled mediation session. Either or both parties may be accompanied by attorneys or housing counselors. 8. Sanctions. Violation of this Administrative Order or the referral Order, including but not limited to failure to provide the required information and failure to schedule and attend a scheduled mediation session, may result in imposition of sanctions, including but not limited to denial of remedies both equitable and/or legal, monetary penalties, assessment of costs, preclusion of evidence, dismissal, or default. Lack of settlement authority is not a defense to the imposition of sanctions for failure to negotiate. DRAFT What can you do when you receive a FORECLOSURE notice? GET HELP RIGHT AWAY. Consumer Credit Counseling Services is the only HUD-certified housing counselor in the First Judicial District (Santa Fe, Rio Arriba, and Los Alamos Counties). It offers FREE help by calling 505-984-8707 (in Santa Fe) or 1- 886-331-2227 (statewide). The New Mexico Mortgage Finance Authority offers FREE help statewide through HUD-certified housing counselors based in Albuquerque. Call The United South Broadway Corp. 505-764-8867 OR Ser de New Mexico 505-268-4500. The State Bar of New Mexico offers referrals to volunteer attorneys. Call … The New Mexico Attorney General’s Consumer Protection Division investigates suspicious mortgage lending practices such as foreclosure scams, deceptive lending practices and predatory mortgage loans and may engage in litigation on behalf of the public to enforce the Unfair Practices Act. Call 1-800-678-1508 or 505-827-6000. Call the Homeowner’s Hope hotline, 1-888-995HOPE (4673), or go to www.995HOPE.org for FREE 24-hour mortgage counseling in several languages (an FHA program). The federal government may be able to help through its Making HOME Affordable program. Go to www.makinghomeaffordable.gov for more info. Beware of Foreclosure Rescue Scams - Help Is Free! (from www.makinghomeaffordable.gov) There is NEVER A FEE to get assistance or information about Making Home Affordable from your lender or a HUD-approved housing counselor. BEWARE of ANY person or organization that asks you to pay a fee in exchange for housing counseling services or modification of a delinquent loan. DO NOT PAY – WALK AWAY! BEWARE- of ANYONE who says they can “save” your home if you sign or transfer over the deed to your house. Do not sign over the deed to your property to any organization or individual unless you are working directly with your mortgage company to forgive your debt. NEVER make your mortgage payments to anyone other than your mortgage company without their approval. You can also file a Request for Mortgage Foreclosure Mediation to ask the Court to assign a mediator to help you and the lender work out an agreement. Get a Request form at the Court’s Self Help Center or at www.firstdistrictcourt.com (Forms, or Court Programs/Alternative Dispute Resolution). To avoid having a default judgment entered against you, you MUST file your written Answer or Motion for Extension of Time to Answer or Otherwise Plead with the Court AND serve your written Answer upon the Plaintiff or the Plaintiff’s attorney even if you want to request referral to foreclosure mediation. DON’T IGNORE IT – GET HELP TODAY. CAUTION: This Notice is not intended as legal advice, and does not substitute for seeking independent legal or other professional advice as to the handling of this lawsuit, or related legal or financial matters. FIRST JUDICIAL DISTRICT COURT STATE OF NEW MEXICO COUNTY OF ____ CASE NO. ___ __, Plaintiff vs. __, Defendant. PLAINTIFF’S REQUEST FOR REFERRAL TO FORECLOSURE MEDIATION COMES NOW ______________________, Plaintiff in this case, and requests that this case be referred to foreclosure mediation. This case is assigned to Judge ________________________________. It was filed on _____________________. The names, addresses and telephone numbers of all counsel or parties pro se entitled to participate are: Plaintiff or Attorney for the Plaintiff Defendant or Attorney for the Defendant Submitted by: ________________________________ Signature Name: Address: Telephone: CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Request for Referral to Foreclosure Mediation was mailed via first class mail, postage prepaid, to all parties of record listed above on this ______ day of _____________, 200__. ________________________________ FIRST JUDICIAL DISTRICT COURT STATE OF NEW MEXICO COUNTY OF ____ CASE NO. ___ __, Plaintiff vs. __, Defendant. DEFENDANT / HOMEOWNER’S MOTION FOR EXTENSION OF TIME TO ANSWER and REQUEST FOR REFERRAL TO FORECLOSURE MEDIATION COMES NOW ______________________, Defendant(s)/Homeowner(s) in this case, and requests that he/they be given an extension of time for 30 days (or as otherwise determined appropriate by the court) from _____________________, the date I received service of the Complaint, to answer, move, plead or otherwise respond to this Complaint. Further, Defendant/Homeowner requests that this case be referred to foreclosure mediation. This case is assigned to Judge ________________________________. It was filed on _____________________. The names, addresses and telephone numbers of all counsel or parties pro se entitled to participate are: Plaintiff or Attorney for the Plaintiff Defendant or Attorney for the Defendant Submitted by: ________________________________ Signature Name: Address: Telephone: CERTIFICATE OF SERVICE On _______________(Date Mailed), a copy of this Motion for Extension of Time to Answer and Request for Referral to Foreclosure Mediation was sent by mail to all parties of the case: _____________________________ at _______________________________________________ (Name of Attorney for the Plaintiff) (Address of Attorney for the Plaintiff) _____________________________ at _______________________________________________ (Other party if listed above – Name) (Address of the other party) _____________________________ at _______________________________________________ (Other party if listed above – Name) (Address of the other party) on this ________ day of _________________, 20__. Other (date) (month) _______________________________________ DEFENDANT/HOMEOWNER’S SIGNATURE DO NOT FILE ALL of the following information must be provided to the assigned Mediator and to the Defendant Homeowner not later than 10 working days before the mediation session. CASE NO. _________________________________________________________ ______________________________ vs. ________________________________ File date _______________________________ Assigned to Judge _______________________ PLAINTIFF’S INFORMATION RESPONSE A. Please provide the following documents: (1) an electronic copy of the note and mortgage; (2) any and all subsequent assignments proving a clear chain of title to the subject note; (3) a copy of the Truth in Lending document provided to the Borrower(s); (4) a copy of the Settlement Statement; (5) copies of all notices required under the note and mortgage. If the original note and mortgage has not been filed with the Complaint, it MUST be brought to the mediation session. B. Please provide the full name, mailing address, email address, direct telephone number, and fax number of a person with settlement authority who will attend the mediation session (attendance by telephone is allowed if that person does not reside or maintain a business presence in New Mexico). C. Information about the loan 1. $_________ What was the original balance of the loan? 2. $_________ What is the current balance of the loan? 3. $_________ How much was the down payment? 4. ___________ What is the current interest rate on this loan? Is it circle one Fixed Adjustable __________ If it is Adjustable, what was the original rate? __________ What was the first rate change date? Was there an actual change of the rate at any time ? Yes No __________ How often is the rate change date occurring? $_________ What is the maximum monthly payment over the course of the term of the note and mortgage? 5. $ What is the current amount of the monthly payment to the lender who is foreclosing? 6. $ If property tax and property insurance are not included in the payment to that lender, what is the amount of the monthly property taxes and insurance? 7. $ Total monthly mortgage, property tax, and property insurance, homeowner association fees if any, for this loan. 8. ___ How many payments has the borrower missed? 9. $__________ What is your estimate of the current value of this property? 10. $_________ Reinstatement amount, if applicable 11. A list of all payments made under the note, showing amount, date due and date received. D. Under appropriate circumstances, which of the following workout options will the lender consider: YES NO 1. ___ ___ A plan to catch up on delinquent payments. 2. ___ ___ Accepting a deed in lieu of foreclosure. With deficiency judgment Without deficiency judgment 3. ___ ___ Accepting a lower payment or interest only payment for some period of time. 4. ___ ___ Reducing the principal amount and adjusting payment amount accordingly. 5. ___ ___ Reducing the interest rate and adjusting the payment amount accordingly. 6. ___ ___ Waiving late fees or penalties. 7. ___ ___ Allowing borrower to rent and remain in the property after foreclosure or deed in lieu of foreclosure. 8. ___ ___ Accepting less than the full amount due in a "short sale." 9. ___ ___ A loan modification that would change an adjustable interest rate to a fixed interest rate. 10. __ ___ A loan modification that would allow a longer term for repayment of the loan. 11. Any other accommodation, please describe. ________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _________________________________________ DO NOT FILE ALL of the following information must be provided to the assigned mediator and to the Plaintiff not later than 10 working days before the mediation session. CASE NO. _________________________________________________________ ______________________________ vs. ________________________________ File date __________________________ Assigned to Judge __________________ DEFENDANT HOMEOWNER’S INFORMATION RESPONSE 1. yes no Have you filed an Answer or a Request for Extension of Time to Answer? 2. yes no Is this property your only residence? 3. yes no Are you currently living in this property? 4. yes no Are you interested in trying to remain in this property? 5. yes no If you are not interested in trying to remain, are you interested in discussing with your lender options other than defaulting on the mortgage? yes no Have you or are you willing to list the property for sale? 6. yes no Are you and/or your spouse presently employed? If yes, how long have you and/or your spouse been employed by your current employer(s)? You: ________ Spouse __________ If no, how long have you and/or your spouse been unemployed? You: ______________ Spouse ________________ 7. yes no Are you in the process of filing bankruptcy or thinking about filing bankruptcy? 8. yes no Have you filed or do you plan to file for divorce? 9. yes no Have you signed any documents or agreements regarding your mortgage? If yes, please attach them. Documents/Agreements Attached circle one Yes No 10. yes no Is or will this property be subject to an estate action in Probate Court? If yes, identify the jurisdiction, case name and number: 11. yes no Do other mortgages or liens exist on this property? Examples of other mortgages and liens are home equity loans, tax liens, child support liens, judgments from lawsuits. List them below: Who is owed? How much? Past due? Y/N __________________________ ________________ ___________ __________________________ ________________ ___________ __________________________ ________________ ___________ __________________________ ________________ ___________ 12. Check all items that have made you miss your mortgage payments: ____ Injury or illness ____ Unemployment: ___Your own ____ Your spouse’s ____ The payment increased because of an Adjustable Rate Mortgage (“ARM”,a mortgage loan where the interest rate changes periodically throughout the course of the loan) ____ Balloon Payment: any repayment option under which the borrower is required to pay the entire amount of the outstanding balance of the loan as of a specified date or the end of a specified period ____ My expenses are more than my income; ____ Other (please describe): ___________________________________________________ 13. yes no Have you received financial counseling? If yes, provide details: _____ _____ __________________________________________ _____________________________________ 14. $_________ What was the original balance of the loan? 15. $_________ What is the current balance of the loan? 16. $________ How much was your down payment? Did you borrow money for the down payment? Yes No If yes, from who? ___________________________ 17. ___________ What is the current interest rate on this loan? Is it circle one Fixed Adjustable __________ If it is Adjustable, what was the original rate? __________ What was the first rate change date? Was there an actual change of the rate at any time ? Yes No __________ How often is the rate change date occurring? $_________ What is the maximum monthly payment over the course of the term of the note and mortgage? 18. $ What is the amount of your monthly payment to the lender who is foreclosing? 19. $ If your property tax and property insurance are not included in the payment to that lender, what is the amount of your monthly property taxes and insurance? 20. $ Total monthly payment(s) (mortgage, property tax, and property insurance, homeowner association fees if any), for this property. 21. How many payments have you missed? 22. __________ How many payments remain before the loan is paid off? 23. Is this loan insured by a government agency (for example, FHA, VA, Fannie Mae, Freddie Mac, RHS)? You can find out at www.makinghomeaffordable.gov. Yes No If yes, which agency is the government insurer? _________ 24. $__________ What is your estimate of the current value of this property? 25. Do you have any cash available for a lump sum payment? Yes No If Yes, how much? $________________ 26. $__________ How much is your current monthly NET (after taxes) income from all sources? 27. $_________What are your total monthly expenses without THIS mortgage, property tax, and property insurance? (Note: Include payments on other property liens.) 28. $__________Total remaining net income (without this property’s expenses) 29. Number of persons in your household who are dependent on you,including yourself and your spouse. Please note if any household members are disabled. _______ age 0-18 _______ age 18-25 _______ age 25-50 _______ age 50+ 30. Please provide copies of letters or other written communications, including notes of telephone conversations, you have had with the lender regarding this mortgage loan.
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