Current through Register Vol. 46, No. 12, March 20, 2024
(a)
Schedule
of fees.
A servicer shall maintain and keep current a schedule of
standard or common fees that may be charged to a borrower. A servicer shall
make its schedule available on its public website and to a borrower upon
request. The schedule shall identify each fee, provide a plain language
explanation of when and why the fee will be charged and state the amount of the
fee or range of amounts or, if there is no standard fee, how the fee is
calculated or determined.
(b)
Authorized fees.
A servicer may only collect a fee if it is for a service
that is actually rendered to the borrower, reasonably related to the cost of
rendering that service, and it meets one of the following conditions:
(1) the fee is expressly authorized and
clearly and conspicuously disclosed by the loan instruments and not prohibited
by law;
(2) the fee is expressly
permitted by law and not prohibited by the loan instruments; or
(3) the fee is not prohibited by law or the
loan instruments and is for a specific service requested by the borrower that
is assessed only after disclosure of the fee is provided to the borrower and
the borrower expressly consents to pay the fee in exchange for the
service.
(c)
Attorneys' fees.
In addition to the limitations in subdivision (b) of this
section and Civil Practice Law and Rules section 3408(h), the following rules
apply to attorneys' fees charged in connection with a loss mitigation option, a
reinstatement or loan satisfaction:
(1) the fee must be reasonable and customary
for work that is actually performed by an attorney; and
(2) the fee and a breakdown of the tasks
performed must be disclosed to the borrower prior to entering into the
agreement governing the loss mitigation option, reinstatement or loan
satisfaction.
(d)
Late and delinquency fees.
(1) A
servicer shall not impose any late or delinquency fee when the only delinquency
is attributable to late or delinquency fees assessed on an earlier payment, and
any subsequent payment is otherwise a full payment for the applicable period
and is paid on its due date or within any applicable grace period.
(2) Except for loans or forbearances insured
by the Federal Housing Commissioner or for which a commitment to insure has
been made by the Federal Housing Commissioner or to any loan or forbearance
insured or guaranteed pursuant to the provisions of an act of congress entitled
Servicemen's Readjustment Act of 1944, late fees shall be in accordance with
and not exceed the two percent limit as specified in the Real Property Law
section
254-b.
(3) Late fees shall not be:
(i) based on an amount greater than the past
due amount;
(ii) collected from the
escrow account or from escrow surplus without the approval of the
borrower;
(iii) deducted from any
regular payment; or
(iv) assessed
if a borrower is making timely trial modification payments.
(e)
Property
valuation fees.
(1) Except as provided
in paragraph (2) of this subdivision, a servicer shall not charge a property
valuation fee to a borrower more than once in a 12-month period.
(2) A servicer may charge a reasonable fee
for a property valuation to facilitate a borrower's application for a loss
mitigation option provided that the servicer has already provided without
charging a fee one property valuation within preceding 12-month
period.
(f)
Statements.
A fee shall not be charged to a borrower for the annual
escrow statement or for one payment history furnished to a borrower in a
12-month period.