Section 1024.39—Early Intervention Requirements for Certain Borrowers
39(a) Live contact.
1. Delinquency. A borrower is delinquent for purposes of § 1024.39 as follows:
i. Delinquency begins on the day a payment sufficient to cover principal, interest, and, if
applicable, escrow for a given billing cycle is due and unpaid, even if the borrower is afforded a
period after the due date to pay before the servicer assesses a late fee. For example, if a payment
due date is January 1 and the amount due is not fully paid during the 36-day period after January 1, the servicer must establish or make good faith efforts to establish live contact not later than 36
days after January 1—i.e., by February 6.
ii. A borrower who is performing as agreed under a loss mitigation option designed to
bring the borrower current on a previously missed payment is not delinquent for purposes of
iii. During the 60-day period beginning on the effective date of transfer of the servicing
of any mortgage loan, a borrower is not delinquent for purposes of § 1024.39 if the transferee
servicer learns that the borrower has made a timely payment that has been misdirected to the
transferor servicer and the transferee servicer documents its files accordingly. See
§ 1024.33(c)(1) and comment 33(c)(1)-2.
iv. A servicer need not establish live contact with a borrower unless the borrower is
delinquent during the 36 days after a payment due date. If the borrower satisfies a payment in
full before the end of the 36-day period, the servicer need not establish live contact with the
borrower. For example, if a borrower misses a January 1 due date but makes that payment on
February 1, a servicer need not establish or make good faith efforts to establish live contact by
2. Establishing live contact. Live contact provides servicers an opportunity to discuss the
circumstances of a borrower's delinquency. Live contact with a borrower includes telephoning
or conducting an in-person meeting with the borrower, but not leaving a recorded phone
message. A servicer may, but need not, rely on live contact established at the borrower's
initiative to satisfy the live contact requirement in § 1024.39(a). Good faith efforts to establish
live contact consist of reasonable steps under the circumstances to reach a borrower and may
include telephoning the borrower on more than one occasion or sending written or electronic
communication encouraging the borrower to establish live contact with the servicer.
3. Promptly inform if appropriate.
i. Servicer's determination. It is within a servicer's reasonable discretion to determine
whether informing a borrower about the availability of loss mitigation options is appropriate
under the circumstances. The following examples demonstrate when a servicer has made a
reasonable determination regarding the appropriateness of providing information about loss
A. A servicer provides information about the availability of loss mitigation options to a
borrower who notifies a servicer during live contact of a material adverse change in the
borrower's financial circumstances that is likely to cause the borrower to experience a long-term
delinquency for which loss mitigation options may be available.
B. A servicer does not provide information about the availability of loss mitigation
options to a borrower who has missed a January 1 payment and notified the servicer that full late
payment will be transmitted to the servicer by February 15.
ii. Promptly inform. If appropriate, a servicer may inform borrowers about the
availability of loss mitigation options orally, in writing, or through electronic communication,
but the servicer must provide such information promptly after the servicer establishes live
contact. A servicer need not notify a borrower about any particular loss mitigation options at this
time; if appropriate, a servicer need only inform borrowers generally that loss mitigation options
may be available. If appropriate, a servicer may satisfy the requirement in § 1024.39(a) to
inform a borrower about loss mitigation options by providing the written notice required by
§ 1024.39(b)(1), but the servicer must provide such notice promptly after the servicer establishes
4. Borrower's representative. Section 1024.39 does not prohibit a servicer from
satisfying the requirements § 1024.39 by establishing live contact with and, if applicable,
providing information about loss mitigation options to a person authorized by the borrower to
communicate with the servicer on the borrower's behalf. A servicer may undertake reasonable
procedures to determine if a person that claims to be an agent of a borrower has authority from
the borrower to act on the borrower's behalf, for example, by requiring a person that claims to be
an agent of the borrower provide documentation from the borrower stating that the purported
agent is acting on the borrower's behalf.
39(b) Written notice.
39(b)(1) Notice required.
1. Delinquency. For guidance on the circumstances under which a borrower is delinquent
for purposes of § 1024.39, see comment 39(a)-1. For example, if a payment due date is January 1 and the payment remains unpaid during the 45-day period after January 1, the servicer must
provide the written notice within 45 days after January 1—i.e., by February 15. However, if a
borrower satisfies a late payment in full before the end of the 45-day period, the servicer need
not provide the written notice. For example, if a borrower misses a January 1 due date but makes
that payment on February 1, a servicer need not provide the written notice by February 15.
2. Frequency of the written notice. A servicer need not provide the written notice under
§ 1024.39(a) more than once during a 180-day period beginning on the date on which the written
notice is provided. For example, a borrower has a payment due on March 1. The amount due is
not fully paid during the 45 days after March 1 and the servicer provides the written notice
within 45 days after March 1—i.e., by April 15. If the borrower subsequently fails to make a
payment due April 1 and the amount due is not fully paid during the 45 days after April 1, the
servicer need not provide the written notice again during the 180-day period beginning on April 15.
3. Borrower's representative. See comment 39(a)-4.
4. Relationship to § 1024.39(a). The written notice required under § 1024.39(b)(1) must
be provided even if the servicer provided information about loss mitigation and foreclosure
previously during an oral communication with the borrower under § 1024.39(a).
39(b)(2) Content of the written notice.
1. Minimum requirements. Section 1024.39(b)(2) contains minimum content
requirements for the written notice. A servicer may provide additional information that the
servicer determines would be helpful or which may be required by applicable law or the owner
or assignee of the mortgage loan.
2. Format. Any color, number of pages, size and quality of paper, size and type of print,
and method of reproduction may be used, provided each of the statements required by
§ 1024.39(b)(2) satisfies the clear and conspicuous standard in § 1024.32(a)(1).
3. Delivery. A servicer may satisfy the requirement to provide the written notice by
combining other notices that satisfy the content requirements of § 1024.39(b)(2) into a single
mailing, provided each of the statements required by § 1024.39(b)(2) satisfies the clear and
conspicuous standard in § 1024.32(a)(1).
1. Number of examples. Section 1024.39(b)(2)(iii) does not require that a specific
number of examples be disclosed, but borrowers are likely to benefit from examples of options
that would permit them to retain ownership of their home and examples of options that may
require borrowers to end their ownership to avoid foreclosure. The servicer may include a
generic list of loss mitigation options that it offers to borrowers. The servicer may include a
statement that not all borrowers will qualify for the listed options.
2. Brief description. An example of a loss mitigation option may be described in one or
more sentences. If a servicer offers a loss mitigation option comprising several loss mitigation
programs, the servicer may provide a generic description of the option without providing detailed
descriptions of each program. For example, if the servicer offers several loan modification
programs, the servicer may provide a generic description of "loan modification."
1. Explanation of how the borrower may obtain more information about loss mitigation
options. A servicer may comply with § 1024.39(b)(2)(iv) by directing the borrower to contact
the servicer for more detailed information on how to apply for loss mitigation options. For
example, a general statement such as, "contact us for instructions on how to apply" would satisfy
the requirement to inform the borrower how to obtain more information about loss mitigation
options. However, to expedite the borrower's timely application for any loss mitigation options,
servicers may provide more detailed instructions, such as by listing representative documents the
borrower should make available to the servicer (such as tax filings or income statements), and an
estimate of how quickly the servicer expects to evaluate a completed application and make a
decision on loss mitigation options. Servicers may also supplement the written notice required
by § 1024.39(b)(1) with a loss mitigation application form.
39(d)(1) Borrowers in bankruptcy.
1. Commencing a case. The requirements of § 1024.39 do not apply once a
petition is filed under Title 11 of the United States Code, commencing a case in which
the borrower is a debtor.
2. Obligation to resume early intervention requirements. With respect to any
portion of the mortgage debt that is not discharged, a servicer must resume compliance
with § 1024.39 after the first delinquency that follows the earliest of any of three
potential outcomes in the borrower's bankruptcy case: (i) the case is dismissed, (ii) the
case is closed, or (iii) the borrower receives a discharge under 11 U.S.C. §§ 727, 1141,
1228, or 1328. However, this requirement to resume compliance with § 1024.39 does not
require a servicer to communicate with a borrower in a manner that would be inconsistent
with applicable bankruptcy law or a court order in a bankruptcy case. To the extent
permitted by such law or court order, a servicer may adapt the requirements of § 1024.39
in any manner believed necessary.
Compliance with § 1024.39 is not required for any portion of the mortgage debt
that is discharged under applicable provisions of the U.S. Bankruptcy Code. If the
borrower's bankruptcy case is revived—for example if the court reinstates a previously
dismissed case, reopens the case, or revokes a discharge—the servicer is again exempt
from the requirement in § 1024.39.
3. Joint obligors. When two or more borrowers are joint obligors with primary
liability on a mortgage loan subject to § 1024.39, the exemption in § 1024.39(d)(1)
applies if any of the borrowers is in bankruptcy. For example, if a husband and wife
jointly own a home, and the husband files for bankruptcy, the servicer is exempt from
complying with § 1024.39 as to both the husband and the wife.