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Text of the Foreclosure Prevention Act of 2008

This bill was introduced on February 14, 2008, in a previous session of Congress, but was not enacted. The text of the bill below is as of Feb 14, 2008 (Placed on Calendar in the Senate).

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II

Calendar No. 577

110th CONGRESS

2d Session

S. 2636

IN THE SENATE OF THE UNITED STATES

February 13, 2008

introduced the following bill; which was read the first time

February 14, 2008

Read the second time and placed on the calendar

A BILL

To provide needed housing reform.

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the Foreclosure Prevention Act of 2008.

(b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

TITLE I—Modifications on use of qualified mortgage bonds

Sec. 101. Modifications on use of qualified mortgage bonds; temporary increased volume cap for certain housing bonds.

TITLE II—Emergency assistance for the redevelopment of abandoned and foreclosed homes

Sec. 201. Emergency assistance for the redevelopment of abandoned and foreclosed homes.

TITLE III—Housing counseling resources

Sec. 301. Housing counseling resources.

TITLE IV—Helping families save their home in bankruptcy act

Sec. 401. Short title.

Subtitle A—Minimizing foreclosures

Sec. 411. Special rules for modification of loans secured by residences.

Sec. 412. Waiver of counseling requirement when homes are in foreclosure.

Subtitle B—Providing other debtor protections

Sec. 421. Combating excessive fees.

Sec. 422. Maintaining debtors’ legal claims.

Sec. 423. Resolving disputes.

Sec. 424. Enacting a homestead floor for debtors over 55 years of age.

Sec. 425. Disallowing claims from violations of consumer protection laws.

TITLE V—Mortgage Disclosure Improvement Act

Sec. 501. Short title.

Sec. 502. Enhanced mortgage loan disclosures.

TITLE VI—Incentives for business

Sec. 601. Carryback of certain net operating losses allowed for 5 years; temporary suspension of 90 percent AMT limit.

I

Modifications on use of qualified mortgage bonds

101.

Modifications on use of qualified mortgage bonds; temporary increased volume cap for certain housing bonds

(a)

Use of qualified mortgage bonds proceeds for subprime refinancing loans

Section 143(k) of the Internal Revenue Code of 1986 (relating to other definitions and special rules) is amended by adding at the end the following new paragraph:

(12)

Special rules for subprime refinancings

(A)

In general

Notwithstanding the requirements of subsection (i)(1), the proceeds of a qualified mortgage issue may be used to refinance a mortgage on a residence which was originally financed by the mortgagor through a qualified subprime loan.

(B)

Special rules

In applying this paragraph to any case in which the proceeds of a qualified mortgage issue are used for any refinancing described in subparagraph (A)—

(i)

subsection (a)(2)(D)(i) shall be applied by substituting 12-month period for 42-month period each place it appears,

(ii)

subsection (d) (relating to 3-year requirement) shall not apply, and

(iii)

subsection (e) (relating to purchase price requirement) shall be applied by using the market value of the residence at the time of refinancing in lieu of the acquisition cost.

(C)

Qualified subprime loan

The term qualified subprime loan means an adjustable rate single-family residential mortgage loan originated after December 31, 2001, and before January 1, 2008, that the bond issuer determines would be reasonably likely to cause financial hardship to the borrower if not refinanced.

(D)

Termination

This paragraph shall not apply to any bonds issued after December 31, 2010.

.

(b)

Increased volume cap for certain bonds

(1)

In general

Subsection (d) of section 146 of the Internal Revenue Code of 1986 is amended by adding at the end the following new paragraph:

(5)

Increase and set aside for housing bonds for 2008

(A)

Increase for 2008

In the case of calendar year 2008, the State ceiling for each State shall be increased by an amount equal to $10,000,000,000 multiplied by a fraction—

(i)

the numerator of which is the population of such State (as reported in the most recent decennial census), and

(ii)

the denominator of which is the total population of all States (as reported in the most recent decennial census).

(B)

Set aside

(i)

In general

Any amount of the State ceiling for any State which is attributable to an increase under this paragraph shall be allocated solely for one or more qualified purposes.

(ii)

Qualified purpose

For purposes of this paragraph, the term qualified purpose means—

(I)

the issuance of exempt facility bonds used solely to provide qualified residential rental projects, or

(II)

a qualified mortgage issue (determined by substituting 12-month period for 42-month period each place it appears in section 143(a)(2)(D)(i)).

.

(2)

Carryforward of unused limitations

Subsection (f) of section 146 of such Code is amended by adding at the end the following new paragraph:

(6)

Special rules for increased volume cap under subsection (d)(5)

(A)

In general

No amount which is attributable to the increase under subsection (d)(5) may be used—

(i)

for a carryforward purpose other than a qualified purpose (as defined in subsection (d)(5)), and

(ii)

to issue any bond after calendar year 2010.

(B)

Ordering rules

For purposes of subparagraph (A), any carryforward of an issuing authority’s volume cap for calendar year 2008 shall be treated as attributable to such increase to the extent of such increase.

.

(c)

Alternative minimum tax

(1)

In general

Clause (ii) of section 57(a)(5)(C) of the Internal Revenue Code of 1986 is amended by striking shall not include and all that follows and inserting

shall not include—

(I)

any qualified 501(c)(3) bond (as defined in section 145), or

(II)

any qualified mortgage bond (as defined in section 143(a)) or qualified veterans' mortgage bond (as defined in section 143(b)) issued after the date of the enactment of this subclause and before January 1, 2011.

.

(2)

Conforming amendment

The heading for section 57(a)(5)(C)(ii) is amended by striking qualified 501(c)(3) bonds and inserting certain bonds.

(d)

Effective date

The amendments made by this section shall apply to bonds issued after the date of the enactment of this title.

II

Emergency assistance for the redevelopment of abandoned and foreclosed homes

201.

Emergency assistance for the redevelopment of abandoned and foreclosed homes

(a)

Direct appropriations

There shall be appropriated out of any money in the Treasury not otherwise appropriated for the fiscal year 2008, $4,000,000,000, to remain available until expended, for assistance to States and units of general local government (as such terms are defined in section 102 of the Housing and Community Development Act of 1974 (42 U.S.C. 5302)) for the redevelopment of abandoned and foreclosed homes.

(b)

Allocation of appropriated amounts

(1)

In general

The amounts appropriated or otherwise made available to States and units of general local government under this section shall be allocated based on a funding formula established by the Secretary of Housing and Urban Development.

(2)

Formula to be devised swiftly

The funding formula required under paragraph (1) shall be established not later than 60 days after the date of enactment of this title.

(3)

Criteria

The funding formula required under paragraph (1) shall ensure that any amounts appropriated or otherwise made available under this section are allocated to States and units of general local government with the greatest need, as such need is determined in the discretion of the Secretary based on the following factors:

(A)

The number and percentage of home foreclosures in each State or unit of general local government.

(B)

The number and percentage of homes financed by a subprime mortgage related loan in each State or unit of general local government.

(C)

The number and percentage of homes in default or delinquency in each State or unit of general local government.

(4)

Distribution

Amounts appropriated or otherwise made available to States and units of general local government under this section shall be distributed according to the funding formula required under paragraph (1) not later than 30 days after the establishment of such formula.

(c)

Use of funds

(1)

In general

Any State or unit of general local government that receives amounts pursuant to this section shall, not later than 18 months after the receipt of such amounts, use such amounts to redevelop abandoned and foreclosed homes.

(2)

Priority

Any State or unit of general local government that receives amounts pursuant to this section shall in distributing such amounts give priority emphasis and consideration to those metropolitan areas, metropolitan cities, urban areas, rural areas, low- and moderate-income areas, and other areas with the greatest need, including those—

(A)

with the greatest percentage of home foreclosures;

(B)

with the highest percentage of homes financed by a subprime mortgage related loan; or

(C)

identified by the State or unit of general local government as likely to face a significant rise in the rate of home foreclosures.

(3)

Eligible uses

(A)

In general

Amounts made available under this section may be used to—

(i)

make grants, loans, and other financing mechanisms to community development financial institutions (as such term is defined under section 103(5) of the Community Development Banking and Financial Institutions Act of 1994 (12 U.S.C. 4702(5))), national intermediaries, and nonprofit housing or community development organizations and others to purchase and rehabilitate homes that have been abandoned or foreclosed upon, in order to sell, rent, or redevelop such homes;

(ii)

establish financing mechanisms for redevelopment of foreclosed upon homes, including such mechanisms as soft-seconds, loan loss reserves, and shared-equity loans for low- and moderate-income homebuyers;

(iii)

purchase and rehabilitate homes that have been abandoned or foreclosed upon, in order to sell, rent, or redevelop such homes;

(iv)

establish land banks for homes that have been foreclosed upon; and

(v)

demolish blighted structures.

(B)

Limitation

Any funds used under this section for the purchase of an abandoned or foreclosed upon home shall be at a cost equal to or less than the appraised value of the home based on the most up-to-date appraisal, as such appraisal is defined by the Secretary.

(d)

Rule of construction

Amounts appropriated or otherwise made available to States and units of general local government under this section shall be treated as though such funds were community development block grant funds under title I of the Housing and Community Development Act of 1974.

(e)

Waiver authority

(1)

In general

In administering any amounts appropriated or otherwise made available under this section, the Secretary of Housing and Urban Development may waive, or specify alternative requirements for, any provision of any statute or regulation that the Secretary administers in connection with the obligation by the Secretary or the use by the recipient of such funds (except for requirements related to fair housing, nondiscrimination, labor standards, and the environment), in order to expedite or facilitate the use of such funds.

(2)

Low and moderate income requirement

Notwithstanding the authority of the Secretary under paragraph (1), all of the funds appropriated or otherwise made available under this section shall be used with respect to persons whose income does not exceed 120 percent of area median income.

(f)

Emergency designation

The amounts appropriated under this title are designated as an emergency requirement and necessary to meet emergency needs pursuant to section 204 of S. Con. Res. 21 (110th Congress), the concurrent resolution on the budget for fiscal year 2008.

III

Housing counseling resources

301.

Housing counseling resources

There shall be appropriated out of any money in the Treasury not otherwise appropriated, for an additional amount for the Neighborhood Reinvestment Corporation—Payment to the Neighborhood Reinvestment Corporation $200,000,000,000, to remain available until September 30, 2008, for foreclosure mitigation activities under the terms and conditions contained in the second paragraph under the heading Neighborhood Reinvestment Corporation—Payment to the Neighborhood Reinvestment Corporation of Public Law 110–161.

IV

Helping families save their home in bankruptcy act

401.

Short title

This title may be cited as the Helping Families Save Their Homes in Bankruptcy Act of 2008.

A

Minimizing foreclosures

411.

Special rules for modification of loans secured by residences

(a)

In general

Section 1322(b) of title 11, United States Code, is amended—

(1)

in paragraph (10), by striking and at the end;

(2)

by redesignating paragraph (11) as paragraph (12); and

(3)

by inserting after paragraph (10) the following:

(11)

notwithstanding paragraph (2) and otherwise applicable nonbankruptcy law—

(A)

modify an allowed secured claim secured by the debtor’s principal residence, as described in subparagraph (B), if, after deduction from the debtor’s current monthly income of the expenses permitted for debtors described in section 1325(b)(3) of this title (other than amounts contractually due to creditors holding such allowed secured claims and additional payments necessary to maintain possession of that residence), the debtor has insufficient remaining income to retain possession of the residence by curing a default and maintaining payments while the case is pending, as provided under paragraph (5); and

(B)

provide for payment of such claim—

(i)

for a period not to exceed 30 years (reduced by the period for which the loan has been outstanding) from the date of the order for relief under this chapter; and

(ii)

at a rate of interest accruing after such date calculated at a fixed annual percentage rate, in an amount equal to the most recently published annual yield on conventional mortgages published by the Board of Governors of the Federal Reserve System, as of the applicable time set forth in the rules of the Board, plus a reasonable premium for risk; and

.

(b)

Conforming amendment

Section 1325(a)(5) of title 11, United States Code, is amended by inserting before with respect the following: except as otherwise provided in section 1322(b)(11) of this title,.

412.

Waiver of counseling requirement when homes are in foreclosure

Section 109(h) of title 11, United States Code, is amended by adding at the end the following:

(5)

Paragraph (1) shall not apply with respect to a debtor who files with the court a certification that a foreclosure sale of the debtor’s principal residence has been scheduled.

.

B

Providing other debtor protections

421.

Combating excessive fees

Section 1322(c) of title 11, the United States Code, is amended—

(1)

in paragraph (1), by striking and at the end;

(2)

in paragraph (2), by striking the period at the end and inserting ; and; and

(3)

by adding at the end the following:

(3)

to the extent that an allowed secured claim is secured by the debtor’s principal residence, the value of which is greater than the amount of such claim, fees, costs, or charges arising during the pendency of the case may be added to secured debt provided for by the plan only if—

(A)

notice of such fees, costs or charges is filed with the court before the expiration of the earlier of—

(i)

1 year after the time at which they are incurred; or

(ii)

60 days before the conclusion of the case; and

(B)

such fees, costs, or charges are lawful, reasonable, and provided for in the underlying contract;

(4)

the failure of a party to give notice described in paragraph (3) shall be deemed a waiver of any claim for fees, costs, or charges described in paragraph (3) for all purposes, and any attempt to collect such fees, costs, or charges shall constitute a violation of section 524(a)(2) of this title or, if the violation occurs before the date of discharge, of section 362(a) of this title; and

(5)

a plan may provide for the waiver of any prepayment penalty on a claim secured by the principal residence of the debtor.

.

422.

Maintaining debtors’ legal claims

Section 554(e) of title 11, United States Code, is amended by adding at the end the following:

(e)

In any action in State or Federal court with respect to a claim or defense asserted by an individual debtor in such action that was not scheduled under section 521(a)(1) of this title, the trustee shall be allowed a reasonable time to request joinder or substitution as the real party in interest. If the trustee does not request joinder or substitution in such action, the debtor may proceed as the real party in interest, and no such action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest or on the ground that the debtor’s claims were not properly scheduled in a case under this title.

.

423.

Resolving disputes

Section 1334 of title 28, United States Code, is amended by adding at the end the following: Notwithstanding any agreement for arbitration that is subject to chapter 1 of title 9, in any core proceeding under section 157(b) of this title involving an individual debtor whose debts are primarily consumer debts, the court may hear and determine the proceeding, and enter appropriate orders and judgments, in lieu of referral to arbitration..

424.

Enacting a homestead floor for debtors over 55 years of age

(a)

In general

Section 522(b)(3) of title 11, United States Code, is amended—

(1)

in subparagraph (B), by striking and at the end;

(2)

in subparagraph (C), by striking the period at the end and inserting ; and; and

(3)

by adding at the end and inserting the following:

(D)

if the debtor, as of the date of the filing of the petition, is 55 years old or older, the debtor's aggregate interest, not to exceed $75,000 in value, in real property or personal property that the debtor or a dependent of the debtor uses as a principal residence, or in a cooperative that owns property that the debtor or a dependent of the debtor uses as a principal residence.

.

(b)

Exemption authority

Section 522(d)(1) of title 11, United States Code, is amended by inserting or, if the debtor is 55 years of age or older, $75,000 in value, before in real property.

425.

Disallowing claims from violations of consumer protection laws

Section 502(b) of title 11, United States Code, is amended—

(1)

in paragraph (8), by striking or at the end;

(2)

in paragraph (9), by striking the period at the end and inserting ; or; and

(3)

by adding at the end the following:

(10)

the claim is subject to any remedy for damages or rescission due to failure to comply with any applicable requirement under the Truth in Lending Act (15 U.S.C. 1601 et seq.), or any other provision of applicable State or Federal consumer protection law that was in force when the noncompliance took place, notwithstanding the prior entry of a foreclosure judgment.

.

V

Mortgage Disclosure Improvement Act

501.

Short title

This title may be cited as the Mortgage Disclosure Improvement Act of 2008.

502.

Enhanced mortgage loan disclosures

(a)

Truth in Lending Act Disclosures

Section 128(b)(2) of the Truth in Lending Act (15 U.S.C. 1638(b)(2)) is amended—

(1)

by inserting (A) before In the;

(2)

by striking a residential mortgage transaction, as defined in section 103(w) and inserting any extension of credit that is secured by the dwelling of a consumer;

(3)

by striking shall be made in accordance and all that follows through extended, or; and

(4)

by striking If the and all that follows through the end of the paragraph and inserting the following:

(B)

In the case of an extension of credit that is secured by the dwelling of a consumer, in addition to the other disclosures required by subsection (a), the disclosures provided under this paragraph shall—

(i)

state in conspicuous type size and format, the following: You are not required to complete this agreement merely because you have received these disclosures or signed a loan application.; and

(ii)

be furnished to the borrower not later than 7 business days before the date of consummation of the transaction, and at the time of consummation of the transaction, subject to subparagraph (D).

(C)

In the case of an extension of credit that is secured by the dwelling of a consumer, under which the annual rate of interest is variable, or with respect to which the regular payments may otherwise be variable, in addition to the other disclosures required by subsection (a), the disclosures provided under this paragraph shall—

(i)

label the payment schedule as follows: Payment Schedule: Payments Will Vary Based on Interest Rate Changes; and

(ii)

state the maximum amount of the regular required payments on the loan, based on the maximum interest rate allowed, introduced with the following language in conspicuous type size and format: Your payment can go as high as ___, the blank to be filled in with the maximum possible payment amount.

(D)

In any case in which the disclosure statement provided 7 business days before the date of consummation of the transaction contains an annual percentage rate of interest that is no longer accurate, as determined under section 107(c), the creditor shall furnish an additional, corrected statement to the borrower, not later than 3 business days before the date of consummation of the transaction.

.

(b)

Civil liability

Section 130(a) of the Truth in Lending Act (15 U.S.C. 1640(a)) is amended—

(1)

in paragraph (2)(A)(iii), by striking not less than $200 or greater than $2,000 and inserting $5,000, such amount to be adjusted annually based on the consumer price index, to maintain current value; and

(2)

in the penultimate sentence of the undesignated matter following paragraph (4)—

(A)

by striking only for and inserting for;

(B)

by striking section 125 or and inserting section 122, section 125,;

(C)

by inserting or section 128(b), after 128(a),; and

(D)

by inserting or section 128(b) before the period.

VI

Incentives for business

601.

Carryback of certain net operating losses allowed for 5 years; temporary suspension of 90 percent AMT limit

(a)

In general

Subparagraph (H) of section 172(b)(1) of the Internal Revenue Code of 1986 is amended to read as follows:

(H)

5-year carryback of certain losses

(i)

Taxable years ending during 2001 and 2002

In the case of a net operating loss for any taxable year ending during 2001 or 2002, subparagraph (A)(i) shall be applied by substituting 5 for 2 and subparagraph (F) shall not apply.

(ii)

Taxable years beginning or ending during 2006, 2007, and 2008

In the case of a net operating loss with respect to any eligible taxpayer (within the meaning of section 168(k)(1)(B)) for any taxable year beginning or ending during 2006, 2007, or 2008—

(I)

subparagraph (A)(i) shall be applied by substituting 5 for 2,

(II)

subparagraph (E)(ii) shall be applied by substituting 4 for 2, and

(III)

subparagraph (F) shall not apply.

.

(b)

Temporary suspension of 90 percent limit on certain NOL carrybacks and carryovers

(1)

In general

Section 56(d) of the of the Internal Revenue Code of 1986 is amended by adding at the end the following new paragraph:

(3)

Additional adjustments

For purposes of paragraph (1)(A), in the case of an eligible taxpayer (within the meaning of section 168(k)(1)(B)), the amount described in clause (I) of paragraph (1)(A)(ii) shall be increased by the amount of the net operating loss deduction allowable for the taxable year under section 172 attributable to the sum of—

(A)

carrybacks of net operating losses from taxable years beginning or ending during 2006, 2007, and 2008, and

(B)

carryovers of net operating losses to taxable years beginning or ending during 2006, 2007, or 2008.

.

(2)

Conforming amendment

Subclause (I) of section 56(d)(1)(A)(i) of such Code is amended by inserting amount of such before deduction described in clause (ii)(I).

(c)

Anti-abuse rules

The Secretary of Treasury or the Secretary's designee shall prescribes such rules as are necessary to prevent the abuse of the purposes of the amendments made by this section, including anti-stuffing rules, anti-churning rules (including rules relating to sale-leasebacks), and rules similar to the rules under section 1091 of the Internal Revenue Code of 1986 relating to losses from wash sales.

(d)

Effective dates

(1)

Subsection (a)

(A)

In general

Except as provided in subparagraph (B), the amendments made by subsection (a) shall apply to net operating losses arising in taxable years beginning or ending in 2006, 2007, or 2008.

(B)

Election

In the case of an eligible taxpayer (within the meaning of section 168(k)(1)(B) of the Internal Revenue Code of 1986) with a net operating loss for a taxable year beginning or ending during 2006 or 2007—

(i)

any election made under section 172(b)(3) of the Internal Revenue Code of 1986 may (notwithstanding such section) be revoked before November 1, 2008, and

(ii)

any election made under section 172(j) of such Code shall (notwithstanding such section) be treated as timely made if made before November 1, 2008.

(2)

Subsection (b)

The amendments made by subsection (b) shall apply to taxable years ending after December 31, 1995.

February 14, 2008

Read the second time and placed on the calendar