The Vermont Statutes Online

Title 12 : Court Procedure

Chapter 163 : Chancery Proceedings

Subchapter 009 : Mediation in Foreclosure Actions

• § 4633. Mediation

  (a) During all mediations under this subchapter:

  (1) The parties shall address the available foreclosure prevention tools and, if disputed, the amount due on the note for the principal, interest, and costs or fees.

  (2) The mortgagee shall use and consider available foreclosure prevention tools, including reinstatement, loan modification, forbearance, and short sale, and the applicable government loss mitigation program requirements and any related “net present value” calculations used in considering a loan modification conducted under this subchapter.

  (3) The mortgagee shall produce for the mortgagor and mediator:

  (A) if a modification or other agreement is not offered, an explanation why the mortgagor was not offered a modification or other agreement; and

  (B) for any applicable government loss mitigation program, the criteria for the program and the inputs and calculations used in determining the homeowner’s eligibility for a modification or other program.

  (4) Where the mortgagee claims that a pooling and servicing or other similar agreement prohibits modification, the mortgagee shall produce a copy of the agreement. All agreement documents shall be confidential and shall not be included in the mediator’s report.

  (b)(1) In all mediations under this subchapter, the mortgagor shall make a good faith effort to provide to the mediator within a time determined by the court or mediator information on his or her household income, and any other information required by any applicable government loss mitigation program.

  (2) Within 45 days of appointment, the mediator shall hold a premediation telephone conference to help the mortgagee and mortgagor complete any necessary document exchange and address other premediation issues. At the premediation telephone conference, the mediator shall at a minimum document and maintain records of the progress the mortgagee and mortgagor are making on financial document production, any review of information that occurs during the conference, any request for additional information, the anticipated time frame for submission of any additional information and the lender’s review of the information, the scheduling of the mediation session, and which of the persons identified in subdivision (d)(1) of this section will be present in person at the mediation or that the parties and the mediator have agreed pursuant to subsection (e) of this section that personal presence at the mediation is not required.

  (3) During the mediation, the mediator shall document and maintain records of:

  (A) agreements about information submitted to the mediator;

  (B) whether a modification or other foreclosure alternative is available and, if so, the terms of the modification;

  (C) if a modification or other foreclosure alternative is not available, the reasons for the unavailability; and

  (D) the steps necessary to finalize the mediation.

  (c) The parties to a mediation under this subchapter shall cooperate in good faith under the direction of the mediator to produce the information required by subsections (a) and (b) of this section in a timely manner so as to permit the mediation process to function effectively.

  (d)(1) The following persons shall participate in person or by telephone in any mediation under this subchapter:

  (A) the mortgagee, or any other person, including the mortgagee’s servicing agent, who meets the qualifications required by subdivision (2) of this subsection (d);

  (B) counsel for the mortgagee; and

  (C) the mortgagor, and counsel for the mortgagor, if represented.

  (2) The mortgagee or mortgagee’s servicing agent, if present, shall have:

  (A) authority to agree to a proposed settlement, loan modification, or dismissal of the foreclosure action;

  (B) real-time access during the mediation to the mortgagor’s account information and to the records relating to consideration of the options available in subdivisions (a)(2) and (a)(3) of this section, including the data and factors considered in evaluating each such foreclosure prevention tool; and

  (C) the ability and authority to perform government loss mitigation program-related “net present value” calculations and to consider other options available in subdivisions (a)(2) and (a)(3) of this section during the mediation.

  (e) The mediator may permit a party identified in subdivision (d)(1) of this section to participate in mediation by telephone or videoconferencing. The mortgagee and mortgagor shall each have at least one of the persons identified in subdivision (d)(1) of this section present in person at the mediation unless all parties and the mediator agree otherwise in writing.

  (f) The mediator may include in the mediation process under this subchapter any other person the mediator determines would assist in the mediation.

  (g) Unless the mortgagee and mortgagor agree otherwise, all mediations under this subchapter shall take place in the county in which the foreclosure action is brought pursuant to subsection 4932(a) of this title. (Added 2009, No. 132 (Adj. Sess.), § 4; amended 2013, No. 8, § 1, eff. Dec. 1, 2013.)