By the Division of Banks


Frequently Asked Questions
on 150/90 Day Right to Cure Notice (the “Notice”)

Identification of Parties

1. Q. The regulations do not explicitly allow for the mortgagee or servicer to send the Notice on letterhead. Is it okay for the lender to send the Notice on letterhead?

A: Yes.  A mortgagee or mortgage servicer or any entity authorized to act on behalf of the mortgagee may send the Notice on its letterhead.

2. Q: Is it acceptable for the servicer to put its name in the Notice everywhere the word “Mortgagee” appears?

A. Yes. It is acceptable for the servicer or any entity authorized to act on behalf of the mortgagee to put its name in every space that references mortgagee. The references should be consistent
throughout the Notice.

3. Q. After the closing “Sincerely”, the Notice specifies “Your Name.” Does this need to be a specific person, or for example, a single point of contact? Can it be a department?

A. The name of a designated individual must be listed.

4. Q: Does the mandated Right to Cure Notice require the address of the mortgagee?

A: Yes. The space for the “mortgagee” located before the closing “Sincerely” in reference to if you have a question must include the address of the entity sending the Notice as the mortgagee or an
entity authorized to act for the mortgagee.

Translation of Declaration

5. Q: Will the Division make the Notice with the foreign language translation available for downloading?

A: The Division has now made the initial box and the translations of the statutory declaration available below.

 

Payments Due

6. Q. Does each monthly installment need to be listed in [Mortgage Payment Due Date/s] or can the due date be stated and then put “and all other payments due thereafter”.

A. Each monthly installment needs to be listed with the applicable date.  The form allows for the aggregate amount to be specified later in the Notice.

7. Q. Does each monthly payment need to be listed separately in [Unpaid Mortgage Payments and Delinquency Dates]?

A. Each monthly installment needs to be listed with the applicable date.  The Notice allows for the aggregate amount to be specified later in the form.

8. Q. How will the borrower know the correct total amount to pay to cure the default if the account goes unpaid for additional months?   

A. The borrower is responsible for any additional payments that may become due after the date of the Notice. The mortgagee will need to provide the details of any additional payments.

9. Q. Is the mortgagee required to list additional payments that may become due during the 150 day period or only the past due payment as of the date of the Notice.

A. Past due payments as of the date of the Notice are required to be listed. See 209 CMR 56.09 for required form and content.

10. Q. Should [Interest Accrued/Per Diem Interest] charges be listed as $0.00 if they are not applicable to the particular transaction?

A. Charges that are not applicable do not need to be listed; therefore do not list $0.00 for that item. The items specified by the words in brackets should not be included or listed if not applicable.

Process

11. Q: Does the Notice account for the possibility that the time frame could be shortened if the borrowers do not respond to a loss mitigation solicitation?

A. The Notice does anticipate that the Right to Cure period could be 90 days. The brackets for the caption show 150/90. Use the appropriate days for the Notice you are sending.  The Division’s
sample completed Notice uses the 150 day caption for illustration purposes only.  See also Regulation 209 CMR 56.03(2)(b).

12. Q: Does the mortgage still need to be assigned before the Right to Cure Notice is sent?

A: The Regulation at 209 CMR 56.03(5) answers that question. It specifies that a mortgagee may not send the Right to Cure Notice under 209 CMR 56.03(1) or (2), unless it has been authorized to
collect on the default.

Statements/Notices

13. Q: What is the meaning of the last sentence, “Enclosed with this notice, there may be additional important disclosures related to applicable laws and requirements that you should carefully
review.” Does it need to be in a separate notice or “disclosure”? Can the mortgagee stuff the envelope with other notices?

A: The regulation allows other documents to be included in the envelope and does not specify a limit. However, it is the Division’s position that anything included in that envelope must be related to
the issuance of the Notice or information specified therein.

14. Q: What if the “mortgagor” has been discharged in bankruptcy? Can this Notice be construed as an attempt to collect a debt? Can the mortgagee add limiting language that this Notice is
for informational purposes only and is not an attempt to collect a debt?

A. No.  A separate notice may be included in the same envelope to comply with the Bankruptcy Code requirement or other statutory or regulatory requirements.

15. Q: Can the mortgagor add the mini-Miranda warning, so called, to the Notice for purposes of the Fair Debt Collection Practices Act? What if the Right to Cure Notice is the first communication by
a debt collector?

A: No. A separate notice may be included to comply with the Fair Debt Collection Practices Act requirement or other statutory or regulatory requirements.

16. Q: The Notice does not mention that this also constitutes notice under the mortgage that must be given before acceleration. Is that notice required to be given after the expiration of the 150 days?

A. A separate notice may be included in the same envelope to comply with any such requirement.

17. Q: May the mortgagee add language to the Notice stating that partial payments will not be accepted from the borrower?

A. No. A separate notice in the same envelope may be used.

Compliance

18. Q: May the 150/90 Day Right to Cure Notice in Regulation 209 CMR 56.04 be changed in any way?

A. No. Other than the text in brackets, the 150/90 Day Right to Cure Notice must “strictly conform” to the form Notice contained in the Regulation.

19. Q. What does the reference to the “Postal Delivery Method” on the 150/90 Day Right to Cure Notice mean?

A: Massachusetts General Laws chapter 244, section 35A, subsection (g) specifically states that the 150/90 Day Right to Cure Notice shall be deemed delivered to the mortgagor when delivered 1) by hand; or 2) when sent by first class mail and certified mail or similar service by a private carrier to the mortgagor at the mortgagor’s address last known to the mortgagee or anyone holding thereunder.  The method of delivery to the mortgagor is to be inserted in that space on the Notice.