Section 31.201. Definitions

The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:

Act 91 Notice—The notice of intention to foreclose required to be sent to a mortgagor prior to the filing of a foreclosure action under the act in the form prescribed in this subchapter.

Applicant—A person who has received the notice described in Appendix A and who has submitted an application to the Agency under this subchapter.

Consumer credit counseling agency—A nonprofit corporation or governmental entity located in this Commonwealth which has been designated by the Agency to provide Homeowner’s Emergency Mortgage Assistance Program counseling. A qualified consumer credit counseling agency shall either be certified as a housing counseling agency by the Department of Housing and Urban Development or otherwise be determined acceptable by the Agency. A list of counseling agencies approved by the Agency is set forth in Appendix C. This list was last updated and includes all changes through August 1, 2008. Future updates of this list will only appear on the Agency’s web site, www.phfa.org, and will be updated on a regular basis as changes occur.

Gross household income—The total income of the applicant, all other owners-occupants of the residence, any spouse and children residing in the same household as the applicant and other residents of the household declared by the mortgagor as dependents for Federal tax purposes. The term does not include the income of minor children. The income of adult children or other unrelated individuals residing in the household shall be considered part of gross household income only to the extent that their income is available to the household.

Homeowner—The owner occupant of a one- or two-family residential structure or the owner-occupant of a cooperative or condominium unit who is also the borrower, debtor or obligor on a mortgage encumbering the residence. The term is interchangeable with the term ‘‘mortgagor.’’

Installment sales contract or agreement—An agreement or contract under which the seller of residential real property conveys ownership of or an equitable interest in real estate which constitutes the principal residence of the buyer wherein the seller finances the purchase by the buyer through contract, agreement, note or other security interest, if that contract or agreement does not constitute a default under the terms of a pre-existing mortgage between the seller and the seller’s mortgagee.

Mortgage—A lien, other than a judgment, on a fee simple or leasehold interest in real property which constitutes the principal residence of the mortgagor, obligor or debtor, located in this Commonwealth together with credit instruments secured thereby. The term includes an installment sales agreement or installment sales contract. The term also includes an obligation evidenced by a security lien on real property upon which an owner-occupied mobile home is located.

Mortgagee—A lender whose debt is secured by a mortgage.

Mortgagor—The owner occupant of a one- or two-family residential structure or the occupant of a cooperative or condominium unit who is also the borrower, debtor or obligor on a mortgage encumbering the residence. This term is interchangeable with the term ‘‘homeowner.’’

Net effective income—Gross household income less city, State and Federal income and Social Security taxes.

Noncorporate seller—A person holding a mortgage who is not a bank, a savings and loan association, a mortgage bank, a consumer discount company or other entity in the mortgage lending business.

Reasonable attorneys’ fees and costs—Fees for legal services and reasonable and necessary costs related thereto, which are actually incurred by a mortgagee, in commencing or pursuing an action of mortgage foreclosure and which meet the following requirements or limitations:

(i) The agency will reimburse lenders for attorneys fees, only after receipt of a detailed, itemized statement showing services rendered, dates and time spent. The agency will reimburse lenders based upon an hourly rate of up to $100 per hour or other reasonable hourly rate as may be established by the agency and published by the agency in the Pennsylvania Bulletin. The agency will average in attorney, and paralegal- or legal assistant- time actually billed to the lender in calculating the hourly rate.

(ii) When the foreclosure action was instituted by the lender, not contested by the homeowner, and proceeded to judgment, the agency may reimburse the lender for attorney fees in an amount equal to the amount established by the Federal National Mortgage Association (Fannie Mae) for its lenders in this Commonwealth, for a standard, completed, uncontested foreclosure, without requiring an itemization of services rendered.

(iii) The agency will reimburse lenders for attorney fees or costs incurred in connection with a bankruptcy filed by the homeowner, only if the fees or costs were incurred after the sending of the notice required by the act.

(iv) The agency will reimburse lenders for attorney fees or costs only if the lender has provided the notice required by the act and the services were not rendered or costs incurred after an applicant has been approved for a mortgage assistance loan by the agency and the lender has been notified of the approval.

(v) The agency will reimburse lenders for the cost of an appraisal of the property only if the homeowner was untimely in making application to the agency and the appraisal was procured after judgment was rendered in the foreclosure action.

(vi) Prior to the commencement of an action in mortgage foreclosure, the agency will reimburse lenders attorneys’ fees and costs in an amount which may not exceed the sum of $50.

(vii) Attorneys’ fees and costs will not be allowed, nor be the subject of reimbursement by the Agency, if the services are rendered or the costs incurred prior to or during the 30-day notice period required by section 403 of the act of January 30, 1974 (P. L. 13, No. 6) (41 P. S. § 403), known as the Usury Law.

(viii) Attorneys’ fees and costs will not be allowed nor be the subject of reimbursement by the agency, if the services are rendered or the costs incurred during the notice and application periods when the homeowner is protected by a stay against legal action as imposed by sections 402-C and 403-C of the act (35 P. S. § § 1680.402c and 1680.403c). Section 402-C of the act prohibits a mortgagee from entering judgment by confession pursuant to a note accompanying a mortgage and from proceeding to enforce the obligation without giving notice and following the procedures provided in the act.

Total housing expense—The sum of the mortgagor’s monthly mortgage payments, including escrows, utility costs, hazard insurance expenses, real property taxes and, in the case of cooperatives and condominiums, the maintenance expense shall consist of the monthly amount the unit is assessed for the maintenance of common elements.

The provisions of this § 31.201 amended through June 13, 1986, effective June 14, 1986, 16 Pa.B. 2126; amended July 1, 1994, effective July 2, 1994, 24 Pa.B. 3224; amended June 4, 1999, effective June 5, 1999, 29 Pa.B. 2859; amended August 29, 2008, effective September 6, 2008, 38 Pa.B. 4859. Immediately preceding text appears at serial pages (256039) to (256040) and (256727) to (256728).

Notation

Notes of Decisions

Ownership

While the Pennsylvania Housing Finance Agency may not base a determination of ownership on compliance with the recording laws for purposes of 35 P. S. § 1680.402(c) governing mortgage assistance they may require recordation as evidence of ownership under the housing finance regulations in the Pennsylvania Code. Land v. Housing Finance Agency, 515 A.2d 1024 (Pa. Cmwlth. 1986).