article: SECTION 1. SHORT TITLE. This Act may be cited as the ``Emergency Mortgage Loan Modification Act of 2008''. SEC. 2. SAFE HARBOR FOR QUALIFIED LOAN MODIFICATIONS OR WORKOUT PLANS FOR CERTAIN RESIDENTIAL MORTGAGE LOANS. (a) Standard for Loan Modifications or Workout Plans.--Absent contractual provisions to the contrary-- (1) the duty to maximize, or to not adversely affect, the recovery of total proceeds from pooled residential mortgage loans is owed by a servicer of such pooled loans to the securitization vehicle for the benefit of all investors and holders of beneficial interests in the pooled loans, in the aggregate, and not to any individual party or group of parties; and (2) a servicer of pooled residential mortgage loans shall be deemed to be acting on behalf of the securitization vehicle in the best interest of all investors and holders of beneficial interests in the pooled loans, in the aggregate, if for a loan that is in payment default under the loan agreement or for which payment default is imminent or reasonably foreseeable, the loan servicer makes reasonable and documented efforts to implement a modification or workout plan or, if such efforts are unsuccessful or such plan would be infeasible, engages in other loss mitigation, including accepting a short payment or partial discharge of principal, or agreeing to a short sale of the property, to the extent that the servicer reasonably believes the particular modification or workout plan or other mitigation actions will maximize the net present value to be realized on the loan, including over that which would be realized through foreclosure. (b) Safe Harbor.--Absent contractual provisions to the contrary, a servicer of a residential mortgage loan that acts in a manner consistent with the duty set forth in subsection (a), shall not be liable for entering into a qualified loan modification or workout plan, to-- (1) any person, based on that person's ownership of a residential mortgage loan or any interest in a pool of residential mortgage loans or in securities that distribute payments out of the principal, interest and other payments in loans on the pool; (2) any person who is obligated pursuant to a derivatives instrument to make payments determined in reference to any loan or any interest referred to in paragraph (1); or (3) any person that insures any loan or any interest referred to in paragraph (1) under any law or regulation of the United States or any law or regulation of any State or political subdivision of any State. (c) Rule of Construction.--No provision of this section shall be construed as limiting the ability of a servicer to enter into loan modifications or workout plans other than qualified loan modification or workout plans. (d) Definitions.--For purposes of this section, the following definitions shall apply: (1) Qualified loan modification or workout plan.--The term ``qualified loan modification or workout plan'' means a modification or plan that-- (A) is scheduled to remain in place until the borrower sells or refinances the property, or for at least 5 years from the date of adoption of the plan, whichever is sooner; (B) does not provide for a repayment schedule that results in negative amortization at any time; and (C) does not require the borrower to pay additional points and fees. (2) Negative amortization.--For purposes of paragraph (1), the term ``negative amortization'' does not include the capitalization of delinquent interest and arrearages. (3) Residential mortgage loan defined.--The term ``residential mortgage loan'' means a loan that is secured by a lien on an owner-occupied residential dwelling. (4) Securitization vehicle.--The term ``securitization vehicle'' means a trust, corporation, partnership, limited liability entity, special purpose entity, or other structure that-- (A) is the issuer, or is created by the issuer, of mortgage pass-through certificates, participation certificates, mortgage-backed securities, or other similar securities backed by a pool of assets that includes residential mortgage loans; and (B) holds such loans. (e) Effective Period.--This section shall apply only with respect to qualified loan modification or workout plans initiated prior to January 1, 2011.
summary: Emergency Mortgage Loan Modification Act of 2008 - Establishes a standard for loan modifications or workout plans for pools of certain residential mortgage loans. States that the servicer of such pooled loans owes a duty to the securitization vehicle to maximize recovery of proceeds for the benefit of all investors and holders of beneficial interests in the pooled loans, in the aggregate, and not to any individual party or group of parties. Deems the loan servicer to be acting on behalf of the securitization vehicle in the best interest of all such investors and holders if the servicer makes certain loss mitigation efforts for a loan in or facing payment default in the reasonable belief that the particular modification, workout plan, or other mitigation actions will maximize the net present value to be realized over that which would be realized through foreclosure. Declares that, absent contractual provisions to the contrary, a servicer acting in a manner consistent with such duty shall not be liable to specified persons (including any person obligated pursuant to a derivatives instrument to make specified payments) for entering into a qualified loan modification or workout plan for loss mitigation purposes. Defines "qualified loan modification or workout plan" as one that: (1) is scheduled to remain in place until the borrower sells or refinances the property, or for at least five years from the date of adoption of the plan, whichever is sooner; (2) does not provide for a repayment schedule that results in negative amortization at any time; and (3) does not require the borrower to pay additional points and fees. States that, for purposes of a qualified loan modification or workout plan, negative amortization does not include capitalization of delinquent interest and arrearages. Defines "securitization vehicle" as a trust, corporation, partnership, limited liability entity, special purpose entity, or other structure that: (1) is the issuer, or is created by the issuer, of mortgage pass-through certificates, participation certificates, mortgage-backed securities, or other similar securities backed by a pool of assets that includes residential mortgage loans; and (2) holds such loans.