§ 31.1. Definitions.

 (a)  The definitions set forth in section 103 of the act (35 P. S. §  1680.103) shall apply to this subpart unless a term is specifically defined in subsection (b) or unless the context clearly indicates otherwise.

 (b)  The following words and terms, when used in this subpart, have the following meanings, unless the context clearly indicates otherwise:

   Act—The Housing Finance Agency Law (35 P. S. § §  1680.101—1680.603a).

   Affirmative action program—A program whereby the Agency imposes a duty upon applicants, developers, mortgagors, contractors, subcontractors, marketing agents and managing agents to employ minorities, minority business enterprises, females and female business enterprises from submission of the preliminary application to the satisfaction of the mortgage; such employment shall include, but not be limited to, development team members.

   Agency—The Housing Finance Agency.

   Annual family income—The total annual income for a low and moderate income family from whatever source derived and before taxes or withholdings, after deducting therefrom:

     (i)   An amount equal to $750 for each dependent, as defined in the Internal Revenue Code as family members.

     (ii)   Income of minors, as defined by the Internal Revenue Code, other than the chief wage earner.

     (iii)   An amount equal to $1,000 income of secondary wage earner not the principal wage earner, who is the individual making the most money.

     (iv)   The total family medical expenses minus 3.0% of annual gross family income. Medical expenses are those expenses which are anticipated during the 12-month period for which the annual income is computed and which are not covered by insurance; however, premiums for such insurance may be deducted as medical expenses.

   Applicant—A corporation, partnership, joint venture, trust, individual, public body or agency, or other entity making application to receive Agency monies, assistance, or services under the act.

   Application—A request for Agency assistance under the act made on forms furnished by the Agency and containing such information as the Agency requires.

   Development team member—Those individuals, corporations, partnerships, joint ventures, or other entities engaged by the applicant to perform professional or technical services which are essential to the finance, design, construction, marketing, operation and management of housing financed by the Agency.

   Dwelling unit—Living accommodations within a housing project intended for residential occupancy by a single family.

   Family—Includes any of the following:

   (1)  Elderly persons as defined by the act.

   (2)  Two or more persons living together not contrary to law.

   (3)  A single person.

   Female applicant—A female individual or a female business enterprise making application to receive Agency monies, assistance, or services under the act.

   Female business enterprise—Any business enterprise that is owned—at least 51%—or controlled by one or more females; where the female business enterprise is a general partnership or a limited partnership, the female general partner or partners must be entitled to receive at least 50% of the syndication proceeds. Control means exercising actual day-to-day management and policy decisions.

   Majority—A nonminority and nonfemale.

   Minority—A United States citizen who is one of the following:

     (i)   Black, not of Hispanic descent.

     (ii)   Hispanic.

     (iii)   American Indian.

     (iv)   Eskimo.

     (v)   Aleut.

     (vi)   Oriental.

   Minority applicant—A minority individual or a minority business enterprise making application to receive Agency monies, assistance, or services under the act.

   Minority business enterprise—Any business enterprise that is owned—at least 51%—or controlled by one or more minorities; where the minority business enterprise is a general partnership or a limited partnership, the minority general partner or partners must be entitled to receive at least 50% of the syndication proceeds. Control means exercising actual day-to-day management and policy decisions.

   Mortgage loan—A loan authorized by resolution of the Agency or by a mortgage loan commitment issued on behalf of the Agency and made or to be made to an applicant for a housing project from the proceeds of sale of the Agency’s bonds or notes and any other available funds for the purpose of providing construction financing or long-term financing, or both, the repayment of which is secured or to be secured as provided in the act.

   Syndication proceeds—The sum of any compensation, fee, profits, money, and income which the general partners of a partnership or a limited partnership are entitled to receive or the sum of any profits, money, and income which any other business enterprise is entitled to receive.

   The provisions of this §  31.1 amended February 1, 1980, effective February 2, 1980, 10 Pa.B. 461. Immediately preceding text appears at serial pages (38290) and (38291).

 (a)  Selection criteria for mortgage loans. Selection criteria for mortgage loans shall conform with the following:

   (1)  The selection criteria for making mortgage loans to applicants shall include, but not be limited to:

     (i)   Projects that have the promise of supplying well-planned, well-designed apartment units.

     (ii)   Location and suitability of the site relative to the proposed housing project.

     (iii)   Need for the proposed housing project.

     (iv)   Qualifications of the development team.

     (v)   Participation of minorities, minority business enterprises, females, and female business enterprises as development team members or as applicants.

   (2)  Where some applicants for mortgage loans satisfy the selection criteria set forth in paragraph (1)(i)—(iv) but not the criteria set forth in paragraph (1)(v), the Agency may make mortgage loans to other applicants who satisfy the selection criteria set forth in paragraph (1)(i)—(v).

 (b)  Rental housing program. The basic steps in the processing of an Agency rental housing program mortgage loan application under Article IV-A of the act (35 P. S. § §  1680.401a—1680.404a) are as follows:

   (1)  Preliminary application submission. Preliminary application submission shall conform with the following:

     (i)   The applicant shall submit a completed application with the required exhibits including evidence of land control, sketch plot plan, and location map. The Agency staff may inspect the proposed site and will analyze and evaluate the rental market the applicant proposes to attract to the proposed project development. The Agency will then advise the applicant of its findings.

     (ii)   The applicant and development team members must comply with the provisions of this part and the procedures and policies of the Agency regarding the finance, design, construction, marketing, operation, and management of housing financed by the Agency. The applicant and development team members must also comply with the Agency’s affirmative action program and policies and procedures regarding the finance, design, construction, marketing, operation, and management of housing. In order to insure that an applicant or a development team member claiming to be a minority business enterprise or a female business enterprise is such an enterprise within the meaning of §  31.1 (relating to definitions), the Agency shall after notice have the right to audit and inspect the books, agreements, contracts, and other relevant documents of any applicant or development team member making such claim.

   (2)  Feasibility submission. Feasibility submission shall conform with the following:

     (i)   If the Agency staff finds the site and market suitable for the proposed project, the applicant shall submit a feasibility submission which includes:

       (A)   Schematic—architectural—drawings.

       (B)   Preliminary cost estimate.

       (C)   Evidence of proper zoning.

       (D)   Proposed operating budget.

       (E)   Any other documentations deemed necessary by the Agency.

     (ii)   If the feasibility submission is determined to be ‘‘feasible’’ by the Agency staff, a feasibility analysis will be prepared and forwarded by the Agency staff to the Agency Board for its consideration. If the Board approves the feasibility requirements by the applicant, the Agency will then proceed to the commitment submission.

   (3)  Commitment submission. Commitment submission shall conform with the following:

     (i)   At this point, the applicant is required to submit a commitment submission which includes:

       (A)   Preliminary working drawings and outline specifications in sufficient detail for cost analysis by the Agency.

       (B)   Tenant selection plan, concerning which reference should be made to §  31.19 (relating to Tenant Selection Plan).

       (C)   Affirmative Action Program for Minority Employment to ensure equal opportunity.

       (D)   Affirmative Action Program for marketing rental to ensure equal opportunity.

       (E)   Management plan.

       (F)   All other items or documentation the Agency deems necessary.

     (ii)   When the applicant has submitted and completed the commitment requirements in acceptable form, the Agency staff will prepare and forward a commitment analysis to the Board of the Agency for its consideration. If the Board approves the commitment analysis, the Agency will issue a commitment letter to the applicant.

   (4)  Initial closing. Upon receipt of the commitment letterAgency, the applicant shall advise his attorney to provide the counsel of the Agency with the required legal closing documents. An initial closing date shall be mutually agreed upon, and the closing shall be held.

   (5)  Construction. The Agency will conduct regular on-site inspection of construction progress. Construction loan disbursements will be made monthly on the basis of work-in-place as approved by the Agency.

 (c)  Federally related mortgage loan program. The processing of an application for a Federally related or assisted mortgage loan from the Agency shall follow the procedures described in subsection (b) unless the characteristics of the Federal program make one or more of the steps unnecessary and shall be subject to such additional procedures as are necessary to ensure compliance with provisions of the Federal program and the act.

 The Agency may waive or vary particular provisions of this subpart:

   (1)  To conform to the requirements of the United States Department of Housing and Urban Development or the United States Department of Agriculture in connection with any housing development with respect to which Federal assistance is sought; or

   (2)  In exceptional circumstances, under an emergency situation, or if, in the determination of the Agency, the application of a provision to a specific case may result in the undue hardship.

RENTAL HOUSING PROGRAM

§ 31.11. Amortization period.

§ 31.14. Ancillary facilities.

   Only rents established or approved by the Agency may be charged for dwelling units in housing projects receiving a permanent mortgage loan from the Agency. In establishing or approving rents, the Agency will provide for rents which, together with other money legally available to the Agency or the mortgagor, will be sufficient to meet the debt service and the maintenance and operational requirements of the housing project unless such rents would cause rental vacancies in excess of 50% of the total apartment units in the property. The rental charges established by this section shall conform with the definition ‘‘moderate rentals’’ and ‘‘low rentals’’ as set forth in section 103 of the act (35 P. S. §  1680.103).

 Each mortgagor shall prepare and submit to the Agency, as a part of its application for financing, a Tenant Selection Plan. The Tenant Selection Plan shall include, but not be limited to the following:

   (1)  The proposed rent structure of the housing project, which is determined by §  31.18 (relating to rental charges), including any rent levels made possible by Federal or other subsidies.

   (2)  The mortgagor’s allocation of at least 51% of its dwelling units to low and moderate income families. However, this 51% may be temporarily waived by the Agency if the Agency determines that the mortgagor has made a good faith effort to accomplish this 51% but has been unsuccessful and, as a result, the development or project has suffered an undue economical hardship. The 51% waiver will be granted only after the Agency determines, through a thorough analysis of the marketing efforts of the mortgagor, that a limited number of low and moderate income families reside in the market area and an insufficient number applied for tenancy. This analysis would include, but would not be limited to, an examination of advertising schedules, letters and telephone inquiries, and project files.

   (3)  That the following schedule of occupancy priorities be maintained to the fullest extent possible:

     (i)   Persons and families displaced by natural disasters.

     (ii)   Persons and families displaced by urban renewal or other governmental action.

     (iii)   Elderly persons and families.

 (a)  To assure that the maximum annual income limits for low and moderate income families are being complied with, the mortgagor must verify the income eligibility of tenants.

 (b)  Verification shall be accomplished by the applicant for a rental unit signing a release which authorizes the mortgagor to request a written verification of the most recent yearly income from the applicant’s employer. Copies of correspondence for income verification must be maintained on file by the mortgagor.

 The maximum annual family income limit for a moderate family occupying a rental unit permanently financed by the Agency is $18,000. This figure shall increase on each annual anniversary date of the effective date of this chapter in the same proportion as the increase in the Cost of Living Index, for Philadelphia, for the same time period, as published by the Department of Labor. Notwithstanding any provision of this subpart to the contrary, with respect to housing financed in whole or in part by a Federally-aided mortgage loan which is to provide housing for moderate and low income persons, the Agency’s actions in authorizing such mortgage loan will have the effect of adopting, as the Agency’s income limitations for initial occupancy of the housing project or part thereof, the income limitations for initial occupancy then provided in the Federal program pursuant to which the mortgage loan or part thereof qualifies as a Federally-aided mortgage.

 (a)  In the event the maximum family income of a moderate family occupying a rental housing unit permanently financed by the Agency increases after initial occupancy so that it exceeds 125% of the allowable income limit established in §  31.22 (relating to income limits), a rental surcharge shall be charged the family in accordance with the following schedule:

SURCHARGE SCHEDULE

Adjusted Family Income As A Percentage of Maximum Adjusted Income for Initial Occupancy of Premises	Rent Surcharge As A Percentage of Rent
0.0% to 125%	None
125% to 130%	4.0%
130% to 135%	6.0%
135% to 140%	8.0%
140% or greater	10%

 (b)  A rental charge shall be charged prospectively only and shall not be imposed until the family completes its first lease year. The family shall pay 1/12 of the rent surcharge along with the monthly rent payment on the first calendar month after receipt of notice from mortgagor requiring this in accordance with the surcharge schedule set forth in subsection (a).

 All books and records of mortgagors, agents of the mortgagors and general contractors shall be open to inspection and audit by representatives of the Agency or certified public accountants retained by the Agency at all reasonable hours.

OWNER-OCCUPIED RESIDENTIAL HOUSING PROGRAM

 These § §  31.101—31.105 are established and will be applied to effectuate the general purposes of the act and the specific objective of providing funds for the financing of certain owner-occupied residential housing for occupancy by qualified persons in this Commonwealth and thereby encouraging the purchase, construction, rehabilitation, and home improvement of residential housing by such persons. Through its purchase program, the Agency increases the availability of funds for such residential housing by making commitments to local lending institutions to purchase and by purchasing loans approved by the Agency as meeting the standards set forth in these § §  31.101—31.105.

 (a)  All words and terms which are defined in the act are used in these § §  31.101—31.105 as defined in the act.

 (b)  The following words and terms, when used in these § §  31.101—31.105 have, unless the context clearly indicates otherwise, the following meanings:

   Approved lending institution—Any lending institution as defined by the act and approved by the Agency.

   Bonds—Bonds issued to obtain funds to purchase program loans as provided in Article V-A of the act (35 P. S. § §  1680.501a—1680.508a).

   Eligible borrower—Any mortgagor or borrower meeting the criteria set forth by the Agency.

   Home improvement loan—A loan made for the improvement of a single-family dwelling.

   Income—The total annual income of a family or person as defined by the Agency.

   Loan—A mortgage loan, a substantial rehabilitation loan, or a home improvement loan made by an approved lending institution to an eligible borrower and meeting the conditions set forth in these § §  31.101—31.105.

   Loan commitment—The aggregate unpaid principal amount of loans which an approved lending institution agrees to deliver and sell to the Agency and the Agency agrees to purchase.

   Loan purchase agreement—An agreement entered into between an approved lending institution and the Agency under which the lending institution agrees to deliver and sell to the Agency and the Agency agrees to purchase loans.

   Loan servicing agreement—An agreement entered into between an approved lending institution and the Agency under which the lending institution agrees to service the loans purchased by the Agency.

   Mortgage loan—A loan made for the purchase or construction of a single-family dwelling.

   Program—A program of the Agency involving mortgage loans, substantial rehabilitation loans, or home improvement loans administered under these § §  31.101—31.105.

   Program guidelines—A guide for a program promulgated by the Agency, summarizing specific contractual requirements of the program, as revised and supplemented from time to time.

   Qualified insurer—The Federal Housing Administration, the Veterans Administration, and any other person legally authorized to insure or guarantee, in whole or part, the payment of loans for single-family dwellings in this Commonwealth and otherwise meeting the qualifications set forth in these sections.

   Single family dwelling—A structure designed for occupancy by no more than four persons or families in separate dwelling units, provided that at least one such dwelling unit shall be occupied by the owner thereof as a primary residence; the term includes condominium units and planned unit development.

   Substantial rehabilitation loan—A loan made for the purchase and substantial rehabilitation or for the substantial rehabilitation of a single-family dwelling.

 Fees may be established by the Agency in connection with loans to be purchased by the Agency in connection with a program. The Agency may establish such other premiums and penalties as it shall determine to be necessary in connection with a program.

 The Agency will establish specific procedures and minimum standards to ensure that community conservation goals and local land-use planning objectives are encouraged.

 When approving a lending institution, the Agency will consider, among other things, the financial strength and stability of the lending institution and its qualifications to originate loans under National Secondary Mortgage Market Standards.

   This section cited in 12 Pa. Code §  31.101 (relating to purpose and objectives); and 12 Pa. Code §  31.102 (relating to definitions).

PROGRAMS GENERALLY

 The Agency will make available to lending institutions who so request a form of loan commitment application at least 14 days in advance of the date such applications must be submitted to the Agency. The application shall be in the form prescribed by the Agency and shall contain, among other things, the following:

   (1)  Provision for the lending institution to state the maximum principal amount of loans which the lending institution offers to sell to the Agency.

   (2)  The date by which the application must be received by the Agency in order to be considered for an allocation of funds.

   (3)  Draft forms of the proposed loan purchase agreement and servicing agreement.

   (4)  Provision for the lending institution to furnish information regarding its loan origination and servicing activities during a time period prescribed by the Agency.

 The Agency may regulate, limit, restrict, or prohibit by contract the charge or collection of any commitment fee, premium, bonus, points or other fees in connection with the origination and servicing of loans by approved lending institutions to be purchased by the Agency.

Subchapter B. POLICY STATEMENT ON HOMEOWNER’S EMERGENCY MORTGAGE ASSISTANCE PROGRAM

Sec.

 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).

   Ownership

 (a)  Property shall be all of the following:

   (1)  A one- or two-family owner-occupied residence.

   (2)  Secured by a mortgage, or other security interest in the case of a cooperative or condominium.

   (3)  The principal residence of the mortgagor.

   (4)  Located within this Commonwealth.

 (b)  A mortgage which is insured under the National Housing Act (12 U.S.C.A. § §  1701—1715z-18) and mortgages where the secured property is used primarily for commercial or business purposes are not eligible for assistance.

 (c)  A mortgage held by a noncorporate seller is not eligible for assistance unless the noncorporate seller elects, in writing, in the mortgage or elsewhere to be covered by sections 103 and 401C—410C of the act (35 P. S. § §  1680.103 and 1680.401c—1680.410c). This election may be indicated by the issuance of an Act 91 notice—see Appendix A.

 (d)  A mortgagor is not eligible for a mortgage assistance loan if one of the following applies:

   (1)  The mortgage more than 24 months delinquent or in default for more than 24 months under the terms of the mortgage.

   (2)  The aggregate amount of assistance needed to bring the mortgage delinquencies current exceeds $60,000.

   (3)  The property is encumbered by more than two mortgages, other than a mortgage filed by the agency to secure repayment of the mortgage assistance loans, or by other liens or encumbrances which would unreasonably impair the security of the Agency’s mortgage as determined by the Agency.

 (e)  The mortgagee shall have indicated to the homeowner, using the notice referred to in Appendix A, its intention to foreclose or initiate other legal action to take possession of the secured real property. This notice need not be sent to homeowners who do not qualify under subsection (a), (b), (c) or (d).

 (f)  If a homeowner is in bankruptcy and the automatic stay under 11 U.S.C.A. §  362 is still in effect, the lender is legally prevented from foreclosing. A homeowner who has been sent the notice referred to in Appendix A may apply to the agency for a mortgage assistance loan while protected by the automatic stay. If the agency approves the application and the homeowner is still protected by the automatic stay, the approval will be contingent upon the trustee and the bankruptcy court approving the incurring of the mortgage assistance loan by the homeowner.

 (g)  The homeowner shall meet all of the following requirements:

   (1)  Be a permanent resident of this Commonwealth.

   (2)  Have had a favorable residential mortgage credit history for the previous 5 years, as determined under §  31.205(c)(5) (relating to financial hardship due to circumstances beyond the homeowner’s control).

   (3)  Be suffering financial hardship due to circumstances beyond his control which renders the homeowner presently unable to correct the delinquencies within a reasonable time and unable to make full mortgage payments. In determining if circumstances are beyond the homeowner’s control, the Agency will consider the homeowner’s credit history, employment record, assets, current and past household income, net worth and other relevant factors.

   (4)  Have a reasonable prospect of resuming full mortgage payments within 24 months after the beginning of the period for which assistance payments are provided by the Agency and be capable of making any payments then remaining due on the mortgage in full by the maturity date or a later date to be agreed upon by the mortgagee.

   (5)  All owners of the residence shall be applicants for the mortgage assistance loan and execute—either personally or through a valid power of attorney—the mortgage and other related loan documents required by the agency, except as follows:

     (i)   When the residence is jointly owned by a husband and wife who are separated and the applicant is occupying the mortgaged premises.

     (ii)   When the residence is jointly owned by a former husband and wife, who are divorced and the applicant, who is occupying the mortgaged premises, is unable to locate his former spouse or the applicant is unable to obtain his former spouse’s consent to join in the application or sign the agency’s loan documents.

   The provisions of this §  31.202 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. Immediately preceding text appears at serial pages (230786) and (236165) to (236166).

   Applications

   Requiring all co-owners to apply jointly for mortgage assistance is plainly within the scope of authority delegated to the Housing Finance Agency. Anela v. Housing Finance Agency, appeal granted 675 A.2d 1252 (Pa. 1996); reversed 690 A.2d 1157 (Pa. 1997). (Editor’s Note: The court cited former 16 Pa. Code §  40.202 in its decision. 16 Pa. Code §  40.202 was renumbered as 12 Pa. Code §  31.202, at 27 Pa.B. 2415 (May 17, 1997).)

   Bankrupt Mortgagor

   A debtor in bankruptcy may only receive emergency mortgage assistance from the Housing Finance Agency if the automatic stay has been lifted. Watts v. Housing Finance Agency, 876 F.2d 1090 (3rd. Cir. (Pa.) 1989).

   Construction with Statutes

   The enabling statute, 35 P. S. §  168.401(c)(a)(2), will not be read narrowly by reason of a grammatical interpretation so as to exclude one-family dwellings from the ‘‘owner-occupied’’ requirement for emergency mortgage assistance; therefore this section is consistent with the statute. Hawkins v. Housing Finance Agency, 595 A.2d 712 (Pa. Cmwlth. 1991).

   Evidence of Ownership

   While the 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).

   Joint Applications

   This policy statement requiring all co-owners, except separated spouses or ex-spouses, to jointly apply for mortgage assistance conflicts with 35 P. S. § §  1680.401c—1680.411c. Anela v. Pennsylvania Housing Finance Agency, 663 A.2d 850 (Pa. Cmwlth. 1995).

   Physical Presence

   The occupancy requirements which must be met in order to be eligible for emergency mortgage assistance require physical presence in the dwelling and assistance was properly denied to an incarcerated applicant. Hawkins v. Housing Finance Agency, 595 A.2d 712 (Pa. Cmwlth. 1991).

 (a)  Before a mortgagee accelerates the maturity of a mortgage obligation, commences legal action including mortgage foreclosure to recover under the obligation, or takes possession of a security of the mortgage debtor for the mortgage obligation, the mortgagee is required to give notice in the form set forth in Appendix A, subject to the following requirements:

   (1)  The notice shall be sent by first class mail to the last known address of the homeowner and if different, to the residence which is the subject of the mortgage. The notice shall also be sent by registered or certified mail.

   (2)  The notice should be sent at the point the homeowner is at least 60 days contractually delinquent in his mortgage payments or is in violation of other provisions of the mortgage.

   (3)  A mortgagee is not required to send the notice required by this subchapter (unless the homeowner has cured his mortgage delinquency, by means of a mortgage assistance loan or otherwise) as follows:

     (i)   To homeowners who do not qualify for mortgage assistance under §  31.202(a), (b) or (c) (relating to eligibility for mortgage loan assistance).

     (ii)   To homeowners who are more than 24 months delinquent or in default for more than 24 months under the terms of the mortgage.

     (iii)   If the aggregate amount of arrearages due to a mortgagee pursuant to the terms of the mortgage, without regard to any acceleration under the mortgage including the amount of principal, interest, taxes, assessments, ground rents, hazard insurance, any mortgage insurance or credit insurance premiums, exceeds the sum of $60,000.

     (iv)   To a homeowner who has already been sent the notice and who did not apply for a mortgage assistance loan, or who applied for a mortgage assistance loan but whose application was denied, or whose mortgage assistance disbursements were terminated by the Agency for any reason.

   (4)  Unless the homeowner has cured his mortgage delinquency, by means of a mortgage assistance loan or otherwise, receipt of partial payments of arrears from the homeowner, subsequent to the sending of the notice, does not mean that the mortgagee shall send a new notice to the homeowner prior to legal action being taken to enforce the mortgage.

   (5)  A notice sent to the homeowner, while the homeowner was in bankruptcy, shall be valid and no new notice need be provided as a result of any discharge or dismissal of the bankruptcy petition or relief from the automatic stay.

   (6)  A notice sent under this subchapter, in the form prescribed in Appendix A, shall be in lieu of any other notice required by State law. If notice is not required to be sent under this subchapter, the mortgagee may still be required to send the 30-day notice required by the act of January 30, 1974 (P. L. 13, No. 6) (41 P. S. § §  401—605), known as the Usury Law.

 (b)  When the homeowner has been sent a notice as required by this subchapter—see Appendix A—by the lender holding the mortgage, the following apply:

   (1)  The homeowner shall arrange for and attend a face-to-face meeting with a consumer credit counseling agency listed in the notice. The meeting shall be held within 30 days of the postmark date of the notice, plus an additional 3 days to allow for mailing period. For example, a notice mailed on March 9 is presumed to have been delivered on March 12. Therefore, the homeowner shall hold a face-to-face meeting within 30 days of March 12, or on or before April 11.

   (2)  If the homeowner meets with a consumer credit counseling agency within the period specified in paragraph (1), notice of the holding of and date of the meeting shall be given within 5 business days of the meeting by the consumer credit counseling agency to known mortgagees holding a mortgage on the principal residence of the homeowner. For the purpose of this subchapter, it is the obligation of the mortgagor to notify the consumer credit counseling agency of the name and address of all mortgagees. A mortgagee may not pursue legal action against the homeowner’s property if the homeowner meets with the consumer credit counseling agency within 33 days of the postmark date of the notice and for an additional period of 30 days subsequent to the meeting between the homeowner and the consumer credit counseling agency, while the application is being prepared to be sent to the Agency. A mortgagee may not proceed with legal action against the homeowner once an application has been approved by the Agency and shall cooperate with the Agency in obtaining reinstatement figures and executing a reinstatement agreement.

   (3)  The consumer credit counseling agency notice—see Appendix B—to the mortgagee will indicate that the homeowner intends to apply for homeowner’s emergency mortgage assistance payments.

   (4)  If after a face-to-face meeting, the homeowner/ mortgagor and mortgagee reach an agreement to resolve the delinquency or default as mentioned in paragraph (1) and if, because of circumstances beyond the homeowner’s control, the homeowner is unable to fulfill the obligations of that agreement, the homeowner may apply to the Agency or its authorized agent for homeowner’s emergency mortgage assistance payments within 30 days of a default in payment under the agreement previously reached. The mortgagee is not required to send an additional notice under this provision. The Agency suggests that the mortgagee advise the homeowner of this provision at the time the forbearance agreement is arranged. If a consumer credit counseling agency is involved, the counseling agency shall notify both the homeowner and the mortgagee of this provision at the time the forbearance agreement is arranged.

   (5)  An application for assistance may only be obtained from a consumer credit counseling agency. The consumer credit counseling agency will assist the homeowner in preparing and submitting an application. This application shall be postmarked or filed at the offices of the Agency or at a location designated by the Agency within 30 days of the initial meeting between the homeowner and the consumer credit counseling agency.

   (6)  If the consumer credit counseling agency assists the homeowner in the preparation or submittal of an application for assistance, it will, within 5 business days, inform the known mortgagees of the date of the application submittal.

   (7)  If the homeowner does apply to the Agency, the Agency will notify known mortgagees holding a mortgage on the principal residence of the homeowner of the receipt of the application.

   (8)  The Agency will determine eligibility for assistance within 60 days of receipt of the application, during which time no mortgagee may pursue legal action to foreclose upon the mortgage on the homeowner’s principal residence.

   (9)  Within 5 business days of making the determination of the eligibility for assistance, the Agency will notify known mortgagees as to whether the application has been approved, disapproved or if funds are not available. If the mortgagee does not receive this notice of disposition or determination within 60 days—plus 5 business days for notification—of receipt of the application by the Agency, or if the notice indicates the application has been disapproved, the applicant was determined to be ineligible for assistance or that funds are not available, the mortgagees may then take legal action to enforce the mortgage.

   (10)  If after receiving an Appendix A notice the homeowner cures the delinquency or default with or without mortgage assistance from the Agency and the homeowner subsequently becomes more than 60 days delinquent, the mortgagee shall again provide the Appendix A notice before taking legal action.

   (11)  If the homeowner fails to meet with an approved consumer credit counseling agency within the period specified or fails to meet other time limitations in this subchapter, the mortgagee may take legal action to enforce the mortgage provided, however, that an application for mortgage assistance may be submitted beyond the time periods specified (that is, a ‘‘late application’’) and in that case the Agency will make a determination within 60-calendar days of receipt of the application. A late application will not prevent the lender from starting and pursuing a foreclosure action, but if the application is eventually approved at any time before a sheriff’s sale, the foreclosure must be stopped.

   (12)  If the Agency determines that the applicant does not qualify for assistance, the following apply:

     (i)   The applicant may not reapply for assistance for 24 months from the date of determination under a mortgage unless there is a material change in the applicant’s financial circumstances.

     (ii)   An applicant who is denied a mortgage assistance loan may request an administrative hearing under §  31.207 (relating to repayment). This request does not prohibit a mortgagee from pursuing legal action to enforce the mortgage.

 (c)  Payments under this subchapter shall be provided for a period not to exceed 24 months, either consecutively or nonconsecutively, whether the payments are on account of arrears, continuing monthly assistance or any combination thereof, and may not exceed the sum of $60,000 on behalf of any mortgagor.

   The provisions of this §  31.203 amended December 13, 1985, effective December 14, 1985, 15 Pa.B. 4435; amended July 1, 1994, effective July 2, 1994, 24 Pa.B. 3224; amended June 4, 1999, effective July 1, 1999, 29 Pa.B. 2859; amended August 29, 2008, effective September 6, 2008, 38 Pa.B. 4859. Immediately preceding text appears at serial pages (256730) to (256733).

   Due Process

   Administrative hearing provided after agency decision, which revised prior agency determination of qualification for mortgage assistance, satisfied due process consistent with Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commw. 90, 309 A.2d 165 (1973). Hessler v. Housing Finance Agency, 500 A.2d 914 (Pa. Cmwlth. 1985).

   Notice

   Submission of Act 91 Notice is not required for emergency mortgage assistance because this section did not require its submission. Vianello v. Housing Finance Agency, 562 A.2d 441 (Pa. Cmwlth. 1989); appeal denied 575 A.2d 573 (Pa. 1990).

 (a)  The applicant shall apply for a loan on the form provided by the Agency. An applicant-homeowner who intentionally misrepresents financial information in conjunction with the filing of an application for assistance may be denied assistance or be required to immediately repay the amount of assistance made as a result of the misrepresentation. The mortgagee may then take legal action to enforce the mortgage without further restrictions or requirements.

 (b)  Agency responsibilities include the following:

   (1)  The Agency shall receive from the homeowner full disclosure of assets and liabilities, whether singly or jointly held, and household income regardless of source. For purposes of this subsection, the following are included as assets:

     (i)   The sum of the household’s savings and checking accounts, market value of stocks, bonds and other securities, other capital investments, pensions and retirement funds, personal property and equity in real property including the subject mortgage property. Income derived from family assets is considered as income. Equity is the difference between the market value of the property and the total outstanding principal of loans secured by the property and other liens.

     (ii)   Lump-sum additions to family assets, such as inheritances, capital gains, insurance payments included under health, accident, hazard or workmen’s compensation policies, and settlements, verdicts or awards for personal or property losses or transfer of assets without consideration within 1 year of the time of application. Pending claims for these items shall be identified by the homeowner as contingent assets.

   (2)  The Agency will determine whether the homeowner is suffering financial hardship due to circumstances beyond the homeowner’s control which render the homeowner unable to correct the delinquency within a reasonable period of time.

   (3)  The Agency will determine whether the homeowner has a reasonable prospect of being able to resume full mortgage payments within 24 months after the beginning of the period for which assistance payments are provided the Agency and of being able to pay the mortgage in full by the maturity date or by a later date agreed to by the mortgagee for completing mortgage payments. If the term of the mortgage matures prior to or during the period of assistance, the mortgagor is still eligible for assistance under this subchapter.

   (4)  The Agency will make a determination of eligibility within 60 days of receipt of the application.

 (c)  If the Agency has determined that the homeowner is eligible, and if funds are available, the Agency will do the following:

   (1)  Pay the mortgagee an amount, negotiated between the mortgagor, the mortgagee and the Agency, sufficient to bring the mortgage current. This includes principal, interest, taxes, mortgage insurance, credit and hazard insurance, assessments, late charges, ground rents, reasonable court costs and reasonable attorney fees already incurred by the mortgagee.

   (2)  Make payments to the mortgagee on behalf of the homeowner for a period not to exceed 24 months after the beginning of the period for which assistance payments are provided the Agency. Payments may stop if the Agency determines that, because of changes in the homeowner’s financial circumstances, the payments are no longer necessary or because the homeowner no longer meets the eligibility criteria of §  31.202(a)—(f) (relating to eligibility for mortgagee loan assistance). A recipient of assistance has a duty to inform the Agency of a material change in financial circumstances.

   (3)  Establish the homeowner’s monthly contribution in an amount which does not cause the homeowner’s total monthly housing expense to exceed 40% of the homeowner’s net effective income. Beginning February 1, 1999, and continuing thereafter, a mortgagor approved for continuing monthly mortgage assistance or whose continuing mortgage assistance is approved after being recertified by the Agency, shall pay to the Agency a minimum monthly payment of at least $25 for each mortgage being assisted. After the Agency has notified the homeowner in writing of loan approval and, in the case of a continuing loan, of the homeowner’s minimum required monthly contribution, the homeowner may agree in writing to contribute a greater percentage of net effective income or to waive receiving continuing monthly disbursements. The Agency will determine and collect monthly mortgage contributions from the homeowner to be forwarded to the mortgagee with the Agency’s disbursement. Contributions shall be made at least 15 days before the monthly mortgage payment is due to avoid late charges being imposed by the mortgagee.

   (4)  Review the homeowner’s financial circumstances if the homeowner fails to make payment of an amount due within 15 days of the due date. If the delinquency is not a result of a material change in the homeowner’s financial circumstances, the Agency will notify the mortgagee, mortgagor and consumer credit counseling agency and terminate the assistance. The mortgagee may then commence foreclosure upon the mortgage. If the delinquency is the result of a material, adverse change in the homeowner’s financial circumstances, the Agency will modify the homeowner’s required payments, as the Agency will determine.

   (5)  Review the homeowner’s financial circumstances at least annually to determine the amounts of repayment required, or more frequently, if the homeowner requests so in writing. As a condition of continued assistance or forbearance of the entire amount of assistance, together with interest, becoming immediately due, the homeowner is required to fully disclose a change in the homeowner’s financial circumstances and to cooperate with the Agency in performing its annual review.

 (d)  As an alternative to monthly assistance payments, the parties may agree to restructuring of future payment requirements or, in cases when the balance of the mortgage is minimal in comparison to the monthly mortgage assistance disbursements to be made, to a purchase of the mortgage by the agency and an assignment of the mortgage debt to the agency.

 (e)  Net income shall be determined as follows:

   (1)  During the period that the homeowner may be eligible for assistance, and for purposes of calculating the amount of repayment to be required, the homeowner will not be required to pay more than 40% of net effective income toward total housing expenses.

   (2)  To determine the maximum total housing expense payment, multiply net effective income by .40. If the homeowner’s total housing expense is less than 40% of net effective income, the mortgagor shall repay to the Agency the difference between 40% of the mortgagor’s net effective income and the mortgagor’s total housing expense unless otherwise determined by the Agency after examining the mortgagor’s financial circumstances and ability to contribute to repayment of the mortgage assistance.

 (f)  The Agency may determine that a homeowner can reasonably contribute a lump sum towards the mortgage arrearage and may either require the homeowner to pay that sum into the Agency in advance of closing the Agency’s loan or to bring the sum with him when the Agency’s loan is closed. The Agency may waive or reduce the lump sum amount originally required if the homeowner needed to use the funds for necessities prior to closing.

 (g)  The Agency may establish a reasonable closing fee for loans that are approved to help defray the cost of administering the program. This closing fee will be advanced to the Agency as part of the loan disbursement, and subject to repayment by the homeowner as provided by §  31.207 (relating to repayment).

 (h)  A mortgagee entitled to payments under this subchapter shall provide to the Agency, within 30 days of the Agency’s request, the following documents and information:

   (1)  An itemized statement of the amounts due under the mortgage including all corporate advances incurred for which reimbursement from the mortgagor is demanded by the mortgagee. Demands for attorney fees, court costs and other advances shall be reasonable and reflect the amount of work and expenses actually expended and may not include any amounts incurred during the period a stay is in effect under this subchapter.

   (2)  Copies of the following documents from the original mortgage transaction:

     (i)   The HUD 1 Settlement Statement

     (ii)   The mortgage and note

     (iii)   The appraisal, if an appraisal has been performed during the last 5 years

   (3)  Failure to provide in a timely fashion the documents and information required under this subsection, will result in the mortgagee’s forfeiture of the right to receive any late fees and attorney fees, costs and expenses.

     (i)   Upon the Agency’s payment of the initial payment to the mortgagee, including any corporate advances allowed by the Agency, the mortgagee shall adjust its accounts to reflect that the mortgage obligation is, as of the date of receipt of the funds, reinstated and current for all purposes. The subsequent imposition by a mortgagee, its successors or assigns, of any charges, fees or other amounts that were paid or disallowed by the Agency, or waived by the mortgagee, shall be in violation of the Unfair Trade and Consumer Protection Law (73 P. S. § §  201-1—209-6).

   The provisions of this §  31.204 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 July 1, 1999, 29 Pa.B. 2859; amended August 29, 2008, effective September 6, 2008, 38 Pa.B. 4859. Immediately preceding text appears at serial pages (256733) to (256736).

   Debtor In Bankruptcy

   A debtor in bankruptcy may only receive emergency mortgage assistance from the Pennsylvania Housing Finance Agency if the automatic stay has been lifted. Watts v. Housing Finance Co., 876 F.2d 1090 (1989).

 (a)  General. The Agency will consider all relevant factors when evaluating whether the homeowner is suffering financial hardship and whether the financial hardship is due to circumstances beyond the homeowner’s control, including the following:

   (1)  The homeowner’s past and present household income and reasons for reductions in household income.

   (2)  Assets which were or are available and could have been or can be liquidated to correct the mortgage delinquency. The Agency will not consider assets in a pension, profitsharing, annuity or similar retirement plan or contract as available for liquidation to the extent that these funds are reasonably necessary for the support of the homeowner, or dependents or the surviving spouse of the homeowner.

   (3)  The homeowner’s credit history.

   (4)  The homeowner’s employment history—including unemployment, underemployment and the reasons therefore—and eligibility for other types of financial assistance.

 (b)  Examples. Examples of circumstances beyond the mortgagor’s control which result in financial hardship to the mortgagor include the following:

   (1)  Unemployment or underemployment, through no fault of the homeowner.

   (2)  Loss, reduction or delay in receipt of Federal, State or other Government benefits (for example, Social Security, Supplemental Security Income, Public Assistance, Government Pensions), or of private benefit payments—for example, pensions, annuities, retirement plans.

   (3)  Loss, reduction or delay in receipt of income because of the death or disability of a person who contributed to the household income.

   (4)  Unanticipated increases in payments to a mortgage escrow account to compensate for past underestimates of escrow requirements by the mortgagee.

   (5)  Expenses actually incurred related to uninsured damage or costly repairs to the mortgaged premises affecting its habitability.

   (6)  Expenses related to death or illness in the homeowner’s household or of family members living outside the household which reduce the amount of household income.

   (7)  Loss of income or substantial increase in total housing expenses because of a divorce, abandonment, separation from a spouse or failure to support.

   (8)  Participation by the homeowner in a recognized labor action, such as a strike.

 (c)  Disallowance. The following circumstances will not be considered by the Agency to be beyond the mortgagor’s control:

   (1)  The mortgage of the property for commercial or business purposes.

   (2)  Termination of employment by the homeowner without a necessitous cause or termination of the homeowner’s employment by an employer for willful misconduct.

   (3)  When the homeowner had sufficient income to pay his mortgage, but failed to do so. In this regard, if the homeowner’s total housing expense is less than or equal to 40% of net effective income, and no reasonable cause for financial hardship is demonstrated by the homeowner, nonpayment of the mortgage debt will not be considered to be a circumstance beyond the homeowner’s control.

   (4)  When the homeowner’s financial hardship was a result of money mismanagement or an over extension of credit to the homeowner. In this regard, the Agency will consider the following in determining whether the homeowner used prudent financial management:

     (i)   The homeowner’s continued payment of normal and necessary living expenses after the financial hardship occurred will not be considered evidence of poor financial management. The homeowner’s continuing to make reasonable payments on debts reasonably incurred prior to the financial hardship also will not be considered evidence of poor financial management.

     (ii)   Debts incurred or expenditures made by the homeowner for non-necessities, during the financial hardship, which exceeded the homeowner’s ability to pay, will be considered evidence of poor financial management.

   (5)  When the homeowner has had an unfavorable mortgage credit history prior to the present delinquency. The Agency will determine that a homeowner has had an unfavorable residential mortgage credit history if, prior to the present mortgage delinquency, the homeowner was in arrears on a residential mortgage for more than 3 consecutive months within the previous 5 years, except for delinquencies which were the result of financial hardship due to circumstances beyond the homeowner’s control.

 (d)  Eligibility. The fact that a circumstance which was beyond the homeowner’s control occurred before the homeowner actually ceased making mortgage payments does not preclude eligibility. A homeowner may, for example, suffer a loss in income but continue to pay the mortgage from savings, inheritance or borrowing and then later fall behind when the savings or other sources of funds run out.

 (e)  Cause of financial hardship. In determining the cause of the financial hardship, the Agency will determine whether the cause is one event—such as the loss of a job, separation or divorce, sickness or injury—or whether a series of factors beyond the homeowner’s control, in combination, caused the financial hardship.

 (f)  Information required. The homeowner shall provide sufficient information to allow the Agency to assess the reasons for the mortgage delinquency. The Agency will base its decision on the information received from the homeowner or other sources. The lack of sufficient information from the homeowner which is reasonably available to the homeowner, or the receipt of knowingly false or misleading information from the homeowner may result in a denial of the application on the merits.

   The provisions of this §  31.205 amended July 1, 1994, effective July 2, 1994, 24 Pa.B. 3224; amended June 4, 1999, effective July 1, 1999, 29 Pa.B. 2859. Immediately preceding text appears at serial pages (230793) to (230795).

 (a)  In general, the Agency will consider all relevant factors when evaluating whether the homeowner has a reasonable prospect of being able to resume full mortgage payments within 24 months after the beginning of the period for which assistance payments are provided the Agency and of being able to pay the mortgage in full by maturity or by a later date agreed to by the mortgagee, including the following:

   (1)  The homeowner’s prior work history, experience, training, opportunities for retraining and similar factors which may affect the homeowner’s future employment opportunities.

   (2)  Potential for future changes in the homeowner’s financial prospects through re-employment, schooling, training or debt reduction or other income changes sufficient to enable the homeowner to resume full mortgage payments.

   (3)  Noncash benefits that may reduce household expenses, such as food stamps, free medical services for military or low-income families, a company-provided automobile or receipt of food or clothing from family members living outside the household.

   (4)  Changes in income or recurring expenses, or both, that may be affected by changes in the age, composition or employment of members of the household.

   (5)  Potential for repayment of short-term or installment debt.

   (6)  Delinquencies in other debts which seriously jeopardize continued ownership of the home, which cannot be cured by a mortgage assistance loan.

   (7)  A homeowner’s demonstrated ability to make regular monthly mortgage payments, even though those payments represented most of the homeowner’s income. In determining whether the homeowner’s future job and income prospects will be sufficient to enable the homeowner to pay the mortgage debt—including principal, interest, taxes and insurance—the Agency will take into consideration the amount of household income available to the homeowner prior to the circumstances which caused the mortgage delinquency and whether the income was sufficient.

 (b)  The Agency will generally determine that a homeowner demonstrates a reasonable prospect of resuming mortgage payments and paying the mortgage by maturity, despite his current unemployment, if the homeowner is suffering a financial hardship through no fault of his own and can demonstrate the following:

   (1)  A favorable work and credit history.

   (2)  The ability and history of paying the mortgage when employed.

   (3)  The lack of an impediment or disability that prevents reemployment.

   (4)  That he is actively seeking work, as evidenced by a written statement to that effect.

 (c)  When the homeowner attributes the mortgage default to alcoholism or other chemical dependency and claims that the dependency impaired his ability to handle financial obligations, the homeowner shall provide the Agency with a physician’s written diagnosis of the dependency condition and documentation of a pattern of behavior which supports the homeowner’s claim. The Agency will not consider rehabilitation efforts in determining whether the circumstances were beyond the mortgagor’s control, but will consider these efforts in evaluating the homeowner’s reasonable prospects of resuming mortgage payments.

 (d)  A mortgage will not be assisted unless installments of principal and interest due under the mortgage are structured so that the loan is fully amortized by regular and periodic payments over a designated period of time. A mortgage in which the balance is due upon demand or the balance is due in a lump sum or balloon payment at the end of a term is not eligible for mortgage assistance except as follows:

   (1)  In cases where the homeowner is in need of a noncontinuing loan to pay arrearages due, the loans are only eligible if the lump sum or balloon payment is not due or the demand for payment has not been made prior to the Agency’s disbursement of funds.

   (2)  In cases where the homeowner is in need of continuing monthly mortgage assistance disbursements, the loans are only eligible if the lump sum or balloon payment comes due or the demand may be made more than 24 months after the beginning of the period for which assistance payments are provided the Agency.

   (3)  When the homeowner and mortgagee agree to reamortize the mortgage debt or extend the maturity date.

 (e)  The homeowner shall provide sufficient information to allow the Agency to assess the homeowner’s future ability to pay the mortgage debt. The Agency will base its decision on the information received from the homeowner or other sources. The lack of sufficient information from the homeowner which is reasonably available to the homeowner, or the receipt of knowingly false or misleading information from the homeowner may result in a denial of the application on the merits.

   Re-employment

   The hearing examiner did not err as a matter of law in denying the application for mortgage assistance based on his conclusion that the applicant’s future income was speculative, where there was no evidence as to when the applicant could expect to earn $280,000 to $330,000 per year from the practice of law, or why he has been essentially unsuccessful in these endeavours since his return to work. R. M. v. Housing Finance Agency, 740 A.2d 302 (Pa. Cmwlth. 1999); appeal denied 754 A.2d 390 (Pa. 2000).

   Statement of Policy

   This section is a statement of policy, not a regulation, and thus it does not have the force and effect of law, since the Housing Finance Agency has consistently classified this section as a ‘‘statement of policy,’’ since the substantive content of the four factors favors a finding that this section does not create a binding norm, since the fact that the hearing examiner relied upon the criteria of this section is not particularly probative on whether the section is substantive, and since the agency is free to consider in toto the four factors, as well as other factors, and then, based on that guidance and their own judgment, decide whether an applicant is qualified for mortgage assistance. R. M. v. Housing Finance Agency, 740 A.2d 302 (Pa. Cmwlth. 1999); appeal denied 759 A.2d 390 (Pa. 2000).

   The provisions of this §  31.206 amended July 1, 1994, effective July 2, 1994, 24 Pa.B. 3224; amended June 4, 1999, effective July 1, 1999, 29 Pa.B. 2859. Immediately preceding text appears at serial pages (230796) to (230797).

 (a)  The Agency will establish loan repayment schedules and prepare appropriate forms, instructions and documents concerning repayments or the security for its assistance.

 (b)  The Agency will enter into an agreement with the homeowner for repayment of mortgage assistance plus interest.

   (1)  Interest shall accrue at the rate of 9% per year except for loans closed starting January 1, 2009, and thereafter, in which case the rate of interest will be determined by the Agency under the provisions of section 406-C(5) of the act (35 P. S. §  1680.406c(5)).

   (2)  Except as provided in subsection (c), interest shall start to accrue when the homeowner begins to make repayment, and will accrue only during the period in which the homeowner is required to make repayment. Interest will not accrue in an amount greater than the amount of repayment required.

   (3)  When the mortgage for which mortgage assistance was made under this program is paid, and homeowner’s emergency mortgage assistance payments are still due to the Agency, interest will begin to accrue on the outstanding balance, including accrued interest, of the payments made on the homeowner’s behalf at the same interest rate and on the same basis as specified in the mortgage for which assistance payments were made.

   (4)  If the residence is no longer owner occupied, the entire balance of the homeowner’s emergency mortgage assistance loan will immediately be due and payable. The Agency will permit an assumption of the mortgage debt in appropriate cases, such as when the original mortgagor dies and a family member becomes the owner-occupant of the property and wishes to become legally responsible for the debt.

 (c)  Beginning February 1, 1999, and continuing thereafter, a mortgagor who has received mortgage assistance shall pay to the Agency a minimum monthly repayment of at least $25 for each mortgage that was assisted. The minimum monthly repayment shall be applied to the principal of the debt and will not result in the accrual of interest on the mortgage assistance loan.

 (d)  The Agency will require full or partial repayment of the mortgage assistance loan once the mortgagor has established credit to the extent that there is sufficient equity in the property for the mortgagor to be able to refinance their mortgage obligations at reasonable rates and terms as determined by the Agency.

   The provisions of this §  31.207 amended July 1, 1994, effective July 2, 1994, 24 Pa.B. 3224; amended June 4, 1999, effective July 1, 1999, 29 Pa.B. 2859; amended August 29, 2008, effective September 6, 2008, 38 Pa.B. 4859. Immediately preceding text appears at serial pages (266496) to (266498) and (256055).

 If, in the Agency’s determination, the Homeowner’s Emergency Mortgage Assistance Fund contains insufficient funds to assist eligible applicants, a notice to this effect will be published by the Agency in the Pennsylvania Bulletin at least 60 days prior to the funds being depleted. The notice will include a date certain, which will be at least 90 days after publication of the notice, after which mortgagees will no longer be required to comply with the act. If funds are replenished in sufficient amount, the Agency will publish a similar notice, effective immediately, announcing that fact and that mortgagees are again subject to the requirements of the act. During the time after the initial notice is published and before a renewal notice is published, the selection of those to receive financial assistance will be determined by the Agency on a first-come, first-served basis.

 (a)  An applicant who is denied a mortgage assistance loan or an applicant or lender aggrieved by another decision of the Agency in implementing the Homeowners’ Emergency Mortgage Assistance Program may request the Agency to conduct an administrative hearing on that grievance.

 (b)  A hearing may only be requested from a decision of the Agency on an issue of fact determined on that application that constitutes an adjudication under 2 Pa.C.S. §  101 (relating to definitions).

 (c)  The Executive Director of the Agency may designate Agency hearing examiners to hear grievances under this process.

 (d)  Requests for a hearing shall be made in writing and shall be submitted to the Agency within 15 days of the postmark date of the mailing of the decision or determination of the Agency. Requests for hearings shall state the reasons that a hearing is requested and be sent by first class, registered or certified mail to the following address:
Chief Counsel-Appeal Requests
Pennsylvania Housing Finance Agency
2101 North Front Street
P. O. Box 15628
Harrisburg, Pennsylvania 17105.

 (e)  The hearing examiner will notify the appellant as to the time and place of the hearing. The Agency will attempt to schedule hearings within 30 days after the request is received. The hearing may be conducted by a telephone conference call. The hearing examiner shall also provide notice to the mortgagees that an administrative appeal has been filed.

 (f)  This appeals process and administrative hearings held thereunder will be administered under the requirements of 2 Pa.C.S. § §  501—508 and 701—704 (relating to the Administrative Agency Law) and 1 Pa. Code Part II (relating to general rules of administrative practice and procedure).

 (a)  Months of assistance available. The 24 month limit on mortgage assistance available under §  31.203(d), and the 24 month periods referred to in § §  31.202(d)(1), 31.203(a)(3)(ii), 31.204(c)(2) and 31.206(a) and (d)(2) shall increase to 36 months if during the month the homeowner submits an application for assistance the Agency has determined that a period of high unemployment exists.

 (b)  Housing expense formula. The 40% ratio referred to in § §  31.204(c) and (e) and 31.205(c)(3) (relating to agency review; and financial hardship due to circumstances beyond the homeowner’s control) shall be reduced to 35% if during the month the homeowner submits an application for assistance the Agency has determined that a period of high unemployment exists.

 (c)  Definition; declaration. There shall be a ‘‘period of high unemployment’’ if the average rate of unemployment in this Commonwealth equals or exceeds 6.5%. This determination will be made by the Agency on a monthly basis based upon seasonably adjusted unemployment figures for the most recent 3 months for which the data for this Commonwealth is published. If the Agency determines that a period of high unemployment exists, the Agency will immediately publish a notice to that effect in the Pennsylvania Bulletin consistent with this section.

 (a)  General.

   (1)  Notification. The mortgagee or other person sending the Act 91 Notice shall either send a copy of the notice or information concerning notices sent to the Agency, in the following manner:

     (i)   Sending a copy of the notice. The mortgagee may send an actual copy of each notice sent to the Agency, by one of the following methods:

       (A)   Regular mail addressed as follows:

  PHFA-HEMAP
211 North Front Street
P. O. Box 15530
Harrisburg, PA 17105-5530

       (B)   Facsimile: sent to either of the following fax numbers:

  Toll Free: (877) 207-0205
Local calls: 780-4340

     (ii)   Electronic mail. (email): Send a scanned copy to: Act91@phfa.org.

   (2)  Electronic reporting. In lieu of sending an actual copy of each notice as set forth in subparagraph (i), the mortgagee or other person sending the Act 91 Notice may provide the Agency with a report of notices sent listing at least the following information:

     (i)   The date Act 91 Notice was mailed.

     (ii)   The name of lender/servicer on whose behalf it was sent.

     (iii)   Street address of the property being foreclosed upon including its 5 digit or 9 digit zip code (as applicable).

 (b)  Multiple notices. If more than one notice is sent (such as, when the mortgagors live somewhere other than the mortgaged property or when there are multiple mortgagors and individual notices are sent to each) only one entry should be made in the report since only one property is being foreclosed upon.

 (c)  Frequency of reports. The mortgagee may send a report as set forth in paragraph (2) on a monthly basis, for notices sent during the previous month, or they may send a report on a quarterly basis listing the notices sent during the prior calendar quarter. Quarterly reports shall be sent within 30 days after the end of each calendar quarter.

 (d)  Format of reports. Electronic reports sent under paragraph (2), shall be sent as an attachment, by means of an email sent to the above email address using the latest version of EXCEL[copy ] with the following headings:

 (e)  Effective date. Copies of notices or reports, or both, as set forth in this section shall be sent for notices sent on or after October 1, 2008.

   The provisions of this §  31.211 adopted August 29, 2008, effective September 6, 2008, but shall only apply to notices issued on or after October 1, 2008, 38 Pa.B. 4859.

APPENDIX A

PENNSYLVANIA HOUSING FINANCE AGENCY

HOMEOWNER’S EMERGENCY MORTGAGE ASSISTANCE PROGRAM

 Date:

ACT 91 NOTICE
TAKE ACTION TO SAVE YOUR HOME FROM FORECLOSURE*

 This is an official notice that the mortgage on your home is in default, and the lender intends to foreclose. Specific information about the nature of the default is provided in the attached pages.

The HOMEOWNER’S EMERGENCY MORTGAGE ASSISTANCE PROGRAM (HEMAP) may be able to help to save your home. This Notice explains how the program works. To see if HEMAP can help, you must MEET WITH A CONSUMER CREDIT COUNSELING AGENCY WITHIN 33 DAYS OF THE DATE OF THIS NOTICE. Take this Notice with you when you meet with the Counseling Agency.

The name, address and phone number of Consumer Credit Counseling Agencies serving your County are listed at the end of this Notice. If you have any questions, you may call the Pennsylvania Housing Finance Agency toll free at 1-800-342-2397. (Persons with impaired hearing can call (717) 780-1869).

This Notice contains important legal information. If you have any questions, representatives at the Consumer Credit Counseling Agency may be able to help explain it. You may also want to contact an attorney in your area. The local bar association may be able to help you find a lawyer.

 LA NOTIFICACIO'N EN ADJUNTO ES DE SUMA IMPORTANCIA, PUES AFECTA SU DERECHO A CONTINUAR VIVIENDO EN SU CASA. SI NO COMPRENDE EL CONTENIDO DE ESTA NOTIFICACIO'N OBTENGA UNA TRADUCCIO'N INMEDIATAMENTE LLAMANDO ESTA AGENCIA (PENNSYLVANIA HOUSING FINANCE AGENCY) SIN CARGOS AL NUMERO MENCIONADO ARRIBA. PUEDE SER ELEGIBLE PARA UN PRE'STAMO POR EL PROGRAMA LLAMADO ‘‘HOMEOWNER’S EMERGENCY MORTGAGE ASSISTANCE PROGRAM’’ EL CUAL PUEDE SALVAR SU CASA DE LA PERDIDA DEL DERECHO A REDIMIR SU HIPOTECA.

 * (Must be at least 30 point type)

HOMEOWNER’S EMERGENCY MORTGAGE ASSISTANCE PROGRAM

YOU MAY BE ELIGIBLE FOR FINANCIAL ASSISTANCE WHICH CAN SAVE YOUR HOME FROM FORECLOSURE AND HELP YOU MAKE FUTURE MORTGAGE PAYMENTS

 IF YOU COMPLY WITH THE PROVISIONS OF THE HOMEOWNER’S EMERGENCY MORTGAGE ASSISTANCE ACT OF 1983 (THE ‘‘ACT’’), YOU MAY BE ELIGIBLE FOR EMERGENCY MORTGAGE ASSISTANCE:

 • IF YOUR DEFAULT HAS BEEN CAUSED BY CIRCUMSTANCES BEYOND YOUR CONTROL,

 • IF YOU HAVE A REASONABLE PROSPECT OF BEING ABLE TO PAY YOUR MORTGAGE PAYMENTS, AND

 • IF YOU MEET OTHER ELIGIBILITY REQUIREMENTS ESTABLISHED BY THE PENNSYLVANIA HOUSING FINANCE AGENCY.

 TEMPORARY STAY OF FORECLOSURE—Under the Act, you are entitled to a temporary stay of foreclosure on your mortgage for thirty (30) days from the date of this Notice (plus three (3) days for mailing). During that time you must arrange and attend a ‘‘face-to-face’’ meeting with one of the consumer credit counseling agencies listed at the end of this Notice. THIS MEETING MUST OCCUR WITHIN THIRTY-THREE (33) DAYS OF THE DATE OF THIS NOTICE. IF YOU DO NOT APPLY FOR EMERGENCY MORTGAGE ASSISTANCE, YOU MUST BRING YOUR MORTGAGE UP TO DATE. THE PART OF THIS NOTICE CALLED ‘‘HOW TO CURE YOUR MORTGAGE DEFAULT’’, EXPLAINS HOW TO BRING YOUR MORTGAGE UP TO DATE.

 CONSUMER CREDIT COUNSELING AGENCIES—If you meet with one of the consumer credit counseling agencies listed at the end of this notice, the lender may NOT take action against you for thirty (30) days after the date of this meeting. The names, addresses and telephone numbers of designated consumer credit counseling agencies for the county in which the property is located are set forth at the end of this Notice. It is only necessary to schedule one face-to-face meeting. Advise your lender immediately of your intentions.

 APPLICATION FOR MORTGAGE ASSISTANCE—Your mortgage is in default for the reasons set forth later in this Notice (see following pages for specific information about the nature of your default). You have the right to apply for financial assistance from the Homeowner’s Emergency Mortgage Assistance Program. To do so, you must fill out, sign and file a completed Homeowner’s Emergency Assistance Program Application with one of the designated consumer credit counseling agencies listed at the end of this Notice. Only consumer credit counseling agencies have applications for the program and they will assist you in submitting a complete application to the Pennsylvania Housing Finance Agency. To temporarily stop the lender from filing a foreclosure action, your application MUST be forwarded to PHFA and received within thirty (30) days of your face-to-face meeting with the counseling agency.

 YOU SHOULD FILE A HEMAP APPLICATION AS SOON AS POSSIBLE. IF YOU HAVE A MEETING WITH A COUNSELING AGENCY WITHIN 33 DAYS OF THE POSTMARK DATE OF THIS NOTICE AND FILE AN APPLICATION WITH PHFA WITHIN 30 DAYS OF THAT MEETING, THEN THE LENDER WILL BE TEMPORARILY PREVENTED FROM STARTING A FORECLOSURE AGAINST YOUR PROPERTY, AS EXPLAINED ABOVE, IN THE SECTION CALLED ‘‘TEMPORARY STAY OF FORECLOSURE.’’

 YOU HAVE THE RIGHT TO FILE A HEMAP APPLICATION EVEN BEYOND THESE TIME PERIODS. A LATE APPLICATION WILL NOT PREVENT THE LENDER FROM STARTING A FORECLOSURE ACTION, BUT IF YOUR APPLICATION IS EVENTUALLY APPROVED AT ANY TIME BEFORE A SHERIFF’S SALE, THE FORECLOSURE WILL BE STOPPED.

 AGENCY ACTION—Available funds for emergency mortgage assistance are very limited. They will be disbursed by the Agency under the eligibility criteria established by the Act. The Pennsylvania Housing Finance Agency has sixty (60) days to make a decision after it receives your application. During that time, no foreclosure proceedings will be pursued against you if you have met the time requirements set forth above. You will be notified directly by the Pennsylvania Housing Finance Agency of its decision on your application.

HOW TO CURE YOUR MORTGAGE DEFAULT (Bring it up to date).

 NATURE OF THE DEFAULT—The MORTGAGE debt held by the above lender on your property located at:

 IS SERIOUSLY IN DEFAULT because:

 A. YOU HAVE NOT MADE MONTHLY MORTGAGE PAYMENTS for the following months and the following amounts are now past due:

 Other charges (explain/itemize):

 TOTAL AMOUNT PAST DUE:

 B. YOU HAVE FAILED TO TAKE THE FOLLOWING ACTION: (Do not use if not applicable.)

 HOW TO CURE THE DEFAULT—You may cure the default within THIRTY (30) DAYS of the date of this notice BY PAYING THE TOTAL AMOUNT PAST DUE TO THE LENDER, WHICH IS $

 You can cure any other default by taking the following action within THIRTY (30) DAYS of the date of this letter: (Do not use if not applicable.)

 IF YOU DO NOT CURE THE DEFAULT—If you do not cure the default within THIRTY (30) DAYS of the date of this Notice, the lender intends to exercise its rights to accelerate the mortgage debt. This means that the entire outstanding balance of this debt will be considered due immediately and you may lose the chance to pay the mortgage in monthly installments. If full payment of the total amount past due is not made within THIRTY (30) DAYS, the lender also intends to instruct its attorneys to start legal action to foreclose upon your mortgaged property.

 IF THE MORTGAGE IS FORECLOSED UPON—The mortgaged property will be sold by the Sheriff to pay off the mortgage debt. If the lender refers your case to its attorneys, but you cure the delinquency before the lender begins legal proceedings against you, you will still be required to pay the reasonable attorney’s fees that were actually incurred, up to $50.00. However, if legal proceedings are started against you, you will have to pay all reasonable attorney’s fees actually incurred by the lender even if they exceed $50.00. Any attorney’s fees will be added to the amount you owe the lender, which may also include other reasonable costs. If you cure the default within the THIRTY (30) DAY period, you will not be required to pay attorney’s fees.

 OTHER LENDER REMEDIES—The lender may also sue you personally for the unpaid principal balance and all other sums due under the mortgage.

 RIGHT TO CURE THE DEFAULT PRIOR TO SHERIFF’S SALE—If you have not cured the default within the THIRTY (30) DAY period and foreclosure proceedings have begun, you still have the right to cure the default and prevent the sale at any time up to one hour before the Sheriff’s Sale. You may do so by paying the total amount then past due, plus any late or other charges then due, reasonable attorney’s fees and costs connected with the foreclosure sale and any other costs connected with the Sheriff’s Sale as specified in writing by the lender and by performing any other requirements under the mortgage. Curing your default in the manner set forth in this notice will restore your mortgage to the same position as if you had never defaulted.

 EARLIEST POSSIBLE SHERIFF’S SALE DATE—It is estimated that the earliest date that such a Sheriff’s Sale of the mortgaged property could be held would be approximately

 HOW TO CONTACT THE LENDER:

 Name of Lender:                        
Address:                            

 EFFECT OF SHERIFF’S SALE—You should realize that a Sheriff’s Sale will end your ownership of the mortgaged property and your right to occupy it. If you continue to live in the property after the Sheriff’s Sale, a lawsuit to remove you and your furnishings and other belongings could be started by the lender at any time.

 ASSUMPTION OF MORTGAGE—You

YOU MAY ALSO HAVE THE RIGHT:

 • TO SELL THE PROPERTY TO OBTAIN MONEY TO PAY OFF THE MORTGAGE DEBT OR TO BORROW MONEY FROM ANOTHER LENDING INSTITUTION TO PAY OFF THIS DEBT.

 • TO HAVE THIS DEFAULT CURED BY ANY THIRD PARTY ACTING ON YOUR BEHALF.

 • TO HAVE THE MORTGAGE RESTORED TO THE SAME POSITION AS IF NO DEFAULT HAD OCCURRED, IF YOU CURE THE DEFAULT. (HOWEVER, YOU DO NOT HAVE THIS RIGHT TO CURE YOUR DEFAULT MORE THAN THREE TIMES IN ANY CALENDAR YEAR.)

 • TO ASSERT THE NONEXISTENCE OF A DEFAULT IN ANY FORECLOSURE PROCEEDING OR ANY OTHER LAWSUIT INSTITUTED UNDER THE MORTGAGE DOCUMENTS.

 • TO ASSERT ANY OTHER DEFENSE YOU BELIEVE YOU MAY HAVE TO SUCH ACTION BY THE LENDER.

 • TO SEEK PROTECTION UNDER THE FEDERAL BANKRUPTCY LAW.

CONSUMER CREDIT COUNSELING AGENCIES SERVING YOUR COUNTY

(Fill in a list of all Counseling Agencies listed in Appendix C, FOR THE COUNTY in which the property is located, using additional pages if necessary).

   The provisions of this Appendix A amended through June 13, 1986, effec