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After a series of failed attempts at helping homeowners in foreclosure, California lawmakers are now proposing a state-mandated mortgage mediation program. Will this provide needed relief to distressed borrowers or just throw another speed bump at lenders and slow down the recovery?

Assembly Bill 1639 passed committee and will head to the California State Assembly floor this week. If this bill becomes law, it would establish the Facilitated Mortgage Workout (FMW) program which would require lenders to meet with borrowers in order to develop a modification plan before they could proceed with foreclosure.

Basic eligibility for the program is as follows:

1. The property must be an owner-occupied principal residence.

2. The loan must be a 1st mortgage originated prior to Jan 1, 2009.

3. The unpaid principal balance can't be more than $729,650.

4. The law doesn't apply if the borrower has already been offered a loan modification that would cut the borrower's housing related debt to 38% or less of the borrower's gross income.

Everything sounds good so far, but, as with other foreclosure prevention programs, the devil is in the details.

Although the law would "require" lenders to meet with borrowers prior to proceeding with foreclosure, the burden for initiating the program rests fully on the borrower's shoulders (the program isn't automatic commenced). The borrower must take substantial measures to activate the program. The lender does have to provide notice of the program in the Notice of Default (the recording of this "NOD" commences the statutory foreclosure process). This is where the problem starts. Most borrowers simply ignore the Notice of Default because they are overwhelmed once the foreclosure officially commences. As required by statute, borrowers receive about a dozen copies of the NOD all at once (some are certified mail, some are regular mail, and some are posted at the home). I have personally seen borrowers simply collect all the mail from the lender, including the NOD, and shove it all in a drawer, unopened.

Further, even if the borrower opens the NOD, the mediation program notice will be buried behind multiple pages of recently enacted statutory required disclosures. Borrowers may never even learn of the new mandated program and will most likely miss the 30-day deadline to opt in even if they do find the notices.

If the borrower actually receives and reads the notice and then wishes to opt into the mediation program, the borrower must complete a (yet-to-be determined) form and return it to the administrator of the program within 30 calendar days of receiving the notice of default. Further, the borrower will be required to provide "other information" within 15 days of the request to participate (tax returns, income verification, a "specified deposit of funds" and a hardship letter).

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