By the Division of Banks
Frequently Asked Questions Regarding Recent Amendments to
209 CMR 18.00: Conduct of the Business of Debt Collectors and Loan Servicers
December 18, 2013
Q.1. What technical corrections were made to the regulation and what is their effective date?
- On November 22, 2013, the Division filed a Notice of Correction to address technical errors in the Official Version of 209 CMR 18.00 to clarify that the reference to the notice of foreclosure included in 209 CMR 18.21A(2)(c) was intended to refer to the notice of foreclosure provided pursuant to M.G.L. ch. 244, § 14. The Division filed this technical correction to resolve any confusion between the version of the amended regulation posted on the Division’s website and the Official Version. The effective date of the corrections is retroactive to October 11, 2013.
Q.2. Is the written certification required in 209 CMR 18.21A(2)(c) the same as an affidavit?
- The certification is not a sworn statement or affidavit.
Q.3. Is compliance with the Consumer Financial Protection Bureau’s (CFPB) regulations cited in 209 CMR 18.21A(1)(e) through 209 CMR 18.21A(1)(h) required in advance of the effective date of the CFPB’s regulations?
- No. Covered entities are not required to comply with applicable provisions of 12 CFR 1024 until their effective date, which is currently scheduled for January 10, 2014.
Q.4. Are “small servicers” exempt from the Division’s regulations to the same extent that they are exempt from the CFPB rules?
- If the CFPB’s regulations that are specifically referenced in the Division’s regulations at 209 CMR 18.21A do not apply to a small servicer, then the Division’s regulation do not apply to such entities either. Small servicers, as described below, are still required to comply with certain of the CFPB’s mortgage servicing rules as summarized here.
An entity is a small servicer if it meets one of the following criteria (see 12 CFR 1026.41(e)(4)):
- It, together with any affiliates, services 5,000 or fewer mortgage loans, and it (or the affiliate) are the creditor or assignee for all the loans; or
- It is a Housing Finance Agency, as defined in 24 CFR 266.5.
An entity is NOT a small servicer if it services any mortgage loans that it did not originate or does not own, even if the entity services 5,000 or fewer loans overall.
Q.5. 209 CMR 18.21A(2)(a) requires third party loan servicers to ensure that all affidavits are based on personal knowledge. What is meant by “personal knowledge”?
- The individual signing the affidavit must have personally reviewed the business records referenced in the affidavit.
Q.6. 209 CMR 18.21A(2)(b) requires third party loan servicers to include in any affidavit a detailed description of the sources of all information recited. What does “detailed description” mean in this context?
- A list of the general sources of information (for example, a servicer’s physical file, electronic records, and data compilations derived from computer records).
Q.7. In the course of a foreclosure, third party loan servicers are required to use certain court form affidavits. They also use a statutory form of affidavit to attest to compliance with state foreclosure procedures. How can third party loan servicers comply with the Division’s regulations without varying from court forms or statutory forms?
- Affidavits will be considered compliant with the Division’s regulations if they follow a court form or statutory form.