GENERAL
REQUIREMENTS FOR PRESERVATION
Mortgagees should preserve and protect properties securing
FHA-insured mortgages in accordance with the requirements of 24
Generally, the more diligent a Mortgagee is in completing
timely foreclosure and conveying a property, the lower the expenditure for
preservation and protection will be. A
Mortgagee may use any individual or firm to perform preservation and protection
services on properties securing FHA-insured mortgages, however, the Mortgagee
remains fully responsible to HUD for its actions and the actions of its
agents. As a cautionary note, the
Department needs to remind Mortgagees that in addition to the surcharges discussed in this Mortgagee Letter, HUD
may pursue enforcement action, including debarment, civil money penalties and
actions under the Program Fraud Civil Remedies Act. See 24
I.
Unit Pricing
HUD has established an overall maximum cost limit (see Attachment 1) that establishes the maximum amount that will be reimbursed for all preservation and protection expenses on an individual property. Additionally, HUD has established maximum allowable costs for individual types of expenses such as lawn mowing and lock changes. Any expenses exceeding the cost allowable or exceeding the overall maximum cost limit per property are not considered approved by HUD unless a Mortgagee has obtained prior written approval from HUD’s designated Management and Marketing Contractor (“M&M”). HUD will require the repayment of claimed reimbursement amounts if it determines that:
1. Amounts paid for reimbursement were unnecessary and excessive;
2. The Mortgagee obtained bids that were not independent and competitive;
3. Services claimed were not performed or not performed properly; or
4. The amount claimed exceeded the cost allowable or overall maximum allowable limit and the Mortgagee did not obtain advance written approval.
To facilitate the timely securing of abandoned properties, HUD has pre-authorized Mortgagees to spend up to a set amount per property for expenses directly related to initial securing. This maximum securing limit is included within the overall maximum allowable limit as further described in Attachment 3.
Some types of expenses such as the cost of boarding, inspections, securing swimming pools, sump pumps, demolition and utilities are not included in the maximum cost limit per property. These services will be reimbursed, provided costs stay within the cost allowables listed in Attachments 2, 3, 4, and 7.
A Mortgagee should support all expenditures, including costs associated with the aforementioned exceptions, with receipts and photographs. For the purpose of claiming reimbursement, HUD considers actions identified in this Mortgagee Letter to be pre-approved, provided these actions meet all applicable cost limits and are performed in accordance with the work requirements identified in this Mortgagee Letter.
II. Claim Submission and Documentation
HUD will reimburse Mortgagees for preservation and protection actions in accordance with the provisions of this Mortgagee Letter upon receipt of Form HUD-27011 Parts A&B via Electronic Data Interchange (EDI) or via the FHA Connection. For instructions on claim processing and document submission see HUD Handbook 4330.4, rev.-1, change 1, which is available on “www.hudclips.org”. Documentation to support each claimed expense must be maintained in the Mortgagee’s case file and must be provided to HUD or its M&M contractor upon request. The documentation should support the expenditures and illustrate that the Mortgagee took appropriate action to preserve and protect the property from the time of default to conveyance. Examples of appropriate documentation include copies of all inspections, photographs, receipts, and overallowable approval requests.
Also on the date the deed is filed for record or mailed to the recording authority, Mortgagees must send a paper copy of the HUD-27011 Part A to HUD’s M&M contractor having jurisdiction for the subject property. If the property suffered surchargable damage and the mortgagee has received permission to convey the property un-repaired, Mortgagees shall note “yes”on the Part A form, Item 24, “Is the property conveyed damaged?”. Where item 24 is marked “yes”, Mortgagees must also include the date that HUD gave permission to convey damaged in item 25 and also include greater of the insurance recovery or HUD’s estimate of the cost of repairs in item 27
Where the damage to the property is non-surchargable, item 25 should be marked “no”and the Mortgagee shall included an explanation of the non-surchargeable damage in the Mortgagee’s Comment Section of Part A. See additional guidance in HUD Handbook 4330.4, rev.-1, change 1, which is available on “www.hudclips.org
Mortgagees are prohibited from
performing preservation and protection services after Part A
of Form HUD 27011 has been filed.
However, payment of certain utility bills may be considered an exception
to this guideline (see Attachment 7).
III. Conveyance of Damaged Properties
A. Surchargeable Damage
All properties conveyed to HUD should be undamaged by fire, flood, earthquake, tornado, hurricane, or boiler explosion (for condominiums) or damage resulting from Mortgagee neglect. Costs resulting from these types of damage are considered surchargeable and are excluded from the claim for insurance benefits. The Mortgagee must repair the damage or obtain prior written permission from HUD to convey a property with surchargeable damage.
HUD will hold a Mortgagee liable if its failure to take reasonable action to preserve and protect property that it determined or should have been determined to be vacant or abandoned results in property damage or destruction. Examples of Mortgagee neglect include but are not limited to a Mortgagee’s failure to:
a. Initiate foreclosure within the required timeframe
1. Obtain timely and accurate property inspections;
2. Promptly secure and continue to protect all abandoned properties; or
3. Promptly notify HUD’s M&M contractor of receipt of code violations and demolition notices and take appropriate action.
2. Limitation on Fire Damage
3. Damage Due to Mold
A property may be conveyed with mold if the mold was not caused by a surchargeable condition, including Mortgagee neglect, fire, flood, earthquake, hurricane, or for condominiums, by boiler explosion. However, even if the mold was not caused by a surchargeable condition, the failure by the Mortgagee to take reasonable action to remediate the cause of the mold and complete any other required preservation and protection actions related to minimizing further mold damage prior to conveyance of the property, qualifies as Mortgagee neglect and, is surchargeable.
4. Requesting Approval to Convey with Surchargeable Damage
Mortgagees may not
convey properties that have surchargeable damage unless the Department provides
prior written approval. Until further
notice, such approval shall be provided by the appropriate M&M Contractor having
jurisdiction over the subject property. (24
Such requests for approval should be sent by facsimile or email to the appropriate M&M contractor. The M&M contractor should review and respond in writing to the request either by fax or e-mail no later than 10 business days following receipt. HUD, at its sole discretion, may require that the Mortgagee repair the damage prior to conveyance or may elect to accept conveyance of the property in damaged condition and require that the claim for insurance benefits be reduced by the greater of the insurance recovery or by the government’s estimate of the cost of repairs. If HUD requires the Mortgagee to repair property damages before conveyance, HUD will not reimburse the cost of these repairs.
If the claim is adjusted for damages, the Mortgagee should mark item 24 of Part A, Form HUD‑27011, “yes” and complete items 26 and 27. Please note that HUD’s claim system will suspend the claim, delaying payment, if the mortgagee has noted “yes” in item 24 without providing the date of approval in item 26 and the amount of the claim reduction in item 27.
As a matter of administrative practice, HUD generally will not deny conveyance of properties if the government’s estimate of the cost to repair the surchargable damage is equal to or less than $2,500.
5. Surchargeable Damage Conveyed Without Approval
When a property with surchargeable damage is conveyed
without prior approval, HUD may, at its sole discretion, either re-convey the
property to the Mortgagee or seek reimbursement from the Mortgagee for HUD’s
estimate of the cost of the repairs (24
The email will
identify the reason(s) for the proposed re-conveyance and provide the Mortgagee
an opportunity to respond with additional information. If additional information is received from
the Mortgagee within 10 business days from the date of the email, it will be
included in the package provided to the
The process for
appealing the decision of the
B. Properties Conveyed with Non-Surchargeable Damage
If a property has sustained non-surchargeable damage, the Mortgagee is not required to obtain pre-approval before conveyance. However, the Mortgagee must include a description of the damage in the “Mortgagee’s Comments” section of the Form HUD-27011, Part A. Item 24 of Part A, “Is the property conveyed damaged?”, should be marked “no”. (Note: marking “yes” in item 24, triggers HUD’s claim system to look in item 26 for the date of HUD’s approval to convey the property damaged and to item 27 for the amount that the claim is to be reduced. Mortgagees must indicate “yes” for surchargable damage and “no” for non-surchargable damage.)
Additionally, the Mortgagee must include, along with the copy of the claim sent to HUD’s M&M Contractor, documentation supporting the preservation and protection work performed on the property. At a minimum, this documentation should include evidence of the date of first vacancy, validation of the property condition at first vacancy and a chronology of actions performed by the Mortgagee to preserve and protect the property.
If a Mortgagee fails to provide the required explanation in the Mortgagee’s Comments section of the Part A or fails to provide the required documentation of P&P actions, the M&M Contractor will notify the Mortgagee in writing that the Mortgagee has 10 business days to provide the information. If no documentation or inadequate documentation is received from the Mortgagee the damage will be considered surchargeable.