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Proponent Testimony on HB 463 Before the House Financial Institutions, Housing and Urban Development Committee by Tony Fiore on April 20, 2016

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Proponent Testimony on HB 463 Before the House Financial Institutions, Housing and Urban Development Committee by Tony Fiore on April 20, 2016 Proponent Testimony On HB 463 Before the House Financial Institutions, Housing and Urban Development Committee By Tony Fiore On April 20, 2016 Chairman Terhar, Vice Chair Hambley, Ranking member Kuhns and members of the committee. My name is Tony Fiore and I am a partner with Kegler Brown Hill + Ritter. I’m here today as one of the leaders that has been working on drafting this legislation for several years. I helped coordinate the OSBA Foreclosure Workgroup that met throughout 2015. In addition, since 2013 I met with nearly every House and Senate member to discuss foreclosure reform on behalf of our client, Manley Deas Kochalski (“MDK”), with one of its named partners, Brian Deas. MDK is one of the largest foreclosure law firms in the Midwest. MDK is headquartered in Columbus, Ohio, but operates in Ohio, Kentucky, Indiana, Illinois, and Pennsylvania. About 400 of MDK's employees are working in Ohio. MDK represents large, mid-size, and small mortgage servicing companies. The foreclosure reforms contained in HB 463 will: 1) reduce the number of vacant and abandoned properties in Ohio; 2) protect borrowers with every protection under existing law even though they cannot make their monthly mortgage payments; and 3) provide a model for other judicial foreclosure states to follow in the future. Background For the last four years Brian Deas and I have been discussing the foreclosure sale reforms included in HB 463. During these discussions we distributed the attached three page flow chart to help better understand what happens before and after the foreclosure process as well as what efforts are required to help individuals remain in their home. (See Exhibit A, B & C). The modernization provisions in the bill that we are specifically supporting only relate to the foreclosure sale process in Ohio - the part of the process that takes place after the court has entered judgment in the case. Capitol Square, Suite 1800 + 65 East State Street + Columbus, OH 43215 Phone: (614) 462-5400 + Fax: (614) 464-2634 + www.keglerbrown.com Ohio is one of about 21 states that use the judicial process to foreclose upon residential property1 when a borrow fails to make payments as agreed when they purchased their home. A majority of states use a non-judicial foreclosure process.2 When you take out a loan in a state that primarily uses a non-judicial foreclosure process, you sign a deed of trust or mortgage that typically contains a power of sale clause. If you have a power of sale provision in your mortgage contract, the lender can foreclose without going to court. The foreclosure process is much faster in a majority of states that do not need to go through the court first. HB 463 does not eliminate the court’s oversight of the foreclosure process in Ohio – it simply focuses on the sale process once the court has determined the home owner is in monetary default and the judgment creditor can proceed with a foreclosure and sale of the home to pay the outstanding debt. 1. The current process is slower than it needs to be. The process starts when the court enters the decree of foreclosure and ends when the sheriff's deed is recorded. It takes a long time for this process to be completed in Ohio – in some cases up to a year. A slow process creates problems. It increases the risk that a property will be abandoned, which increases the risk of blight to the local community. It makes it harder to sell the property to a third party, since many people aren't able to wait for the sheriff sale process to be completed. It imposes costs on local communities. The Federal Reserve Bank in Cleveland described these costs in a report issued in May 2013 which recommended a faster foreclosure process in Ohio (See Exhibit D). It creates backlogs. Although the number of foreclosure cases in Ohio is getting smaller, when the foreclosure volume was high we saw significant backlogs in some counties in holding sheriff sales. The private sector, rather than county government, is in a better position to staff-up or staff-down depending on the volume of foreclosed properties across Ohio. The best way to reduce delays in the sale process without changing any of the safeguards that are currently in the Revised Code is to take advantage of the resources that are available in the private sector. There are more than 3,000 auctioneers in Ohio, and more than 1,700 licensed title insurance agents in Ohio. Together they are available to assist with foreclosure sales by conducting auctions of the properties and handle the closing aspects of these auctions. Ohio should take advantage of these professionals to eliminate the delays and backlogs that exist in some counties and to be ready for any future economic downturn. The Revised Code already allows judges to appoint private auctioneers to sell foreclosed properties. HB 463 puts additional requirements on who judgment creditors can request to 1 States that use a judicial foreclosure process include: Connecticut, Delaware, Florida, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, New Jersey, New Mexico*, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, Vermont, and Wisconsin. 2 States that use a non-judicial foreclosure process include: Alabama, Alaska, Arizona, Arkansas, California, Colorado, District of Columbia, Georgia, Idaho, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Oregon, Rhode Island, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, and Wyoming Page 2 of 4 have the property sold by a private individual. These individuals are called “private selling officers” and must be a licensed auctioneer, Realtor and resident of Ohio. This process is similar to how Illinois conducts sales. This allows the foreclosure process to benefit from the capacity and experience of the private sector. 2. The current process is antiquated. Foreclosed properties are sold in a live auction in a physical location. Most sales are held once a week, except in counties that hold sales only once a month. The process is costly and inefficient. It dates back to the 1800's. HB 463 would require properties to be sold through an online auction website. The bill proposes that the Ohio Department of Administrative Services solicit bids for a vendor to build and maintain this online auction at no cost to local or the state government, but for a per foreclosed home flat fixed fee. Each county sheriff would be able to provide their own look and feel to the website while all controls are maintained on the back end at the state level. Some of the larger counties in Florida conduct foreclosure sales online. (See Exhibit E) Online sales have many benefits over live, on-site auctions. Counties save money and can sell properties more quickly. More people can bid, since sales can be held open for days and are open to a bigger audience. And the requirements of the sale can be made more transparent. All of this results in a better auction. It also creates a great opportunity for the state and counties to work together under a shared services agreement to make the foreclosure process more efficient and to provide a better experience to people who want to buy foreclosed properties. A website in which all foreclosed properties in Ohio would be auctioned to the public would further the goals of cooperation and efficiency outlined in the Shared Services Action Plan for Ohio Schools and Governments, a report that was issued to Governor Kasich and Members of the General Assembly in June 2012 (See Exhibit F). It could also make Ohio a leader in how to improve the foreclosure process without sacrificing the due process that is owed to the parties and the protections owed to the homeowner. Sales are also not well advertised, which makes it difficult for people to find properties for sale. The rules of the sale vary from one county to the next, and they can be difficult for people to understand. The result - less interest in bidding from third parties and an auction market that is not as robust as it could be. The bill maintains existing requirement to advertise in the paper of circulation that sheriff’s use today, but the online advertisement on the online auction site will be live 24/7 prior to the auction. In addition, Ohio does not allow judgment creditors or third parties to bid remotely. Everyone who wants to bid on a property in foreclosure must appear and bid in person at the auction. This increases the cost of bidding and reduces the number of persons who are able to bid. Ohio would benefit from a process that allows remote bidding. We support HB 463 because it would eliminate these problems. I think it also could make Ohio a model state in selling foreclosed properties. Page 3 of 4 HB 463 takes pieces of the process from other judicial foreclosure states and combines them into a single, integrated approach. HB 463 creates more flexibility in the process. For example, it allows sales to be postponed instead of cancelled. Ohio does not allow scheduled sales to be postponed. Sales can only be cancelled. Cancelling sales increases the out-of-pocket cost of sales and the time it takes to complete the sale process. It also requires the use of additional judicial and sheriff resources if the sale is rescheduled. Many states allow scheduled sales to be postponed for a short period of time. Ohio would benefit from allowing sales to be postponed instead of cancelled. Postponing sales would also help in circumstances where a loss mitigation option is being explored with the existing homeowner to potentially keep them in their home.
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