§ 45-91. Assessment of fees; processing of payments; publication of statements. - North Carolina Statutes

§ 45‑91.  Assessment offees; processing of payments; publication of statements.

A servicer must comply as toevery home loan, regardless of whether the loan is considered in default or theborrower is in bankruptcy or the borrower has been in bankruptcy, with thefollowing requirements:

(1)        Any fee that isincurred by a servicer shall be both:

a.         Assessed within 45days of the date on which the fee was incurred. Provided, however, thatattorney or trustee fees and costs incurred as a result of a foreclosure actionshall be assessed within 45 days of the date they are charged by either theattorney or trustee to the servicer.

b.         Explained clearlyand conspicuously in a statement mailed to the borrower at the borrower's lastknown address within 30 days after assessing the fee, provided the servicershall not be required to take any action in violation of the provisions of thefederal bankruptcy code. The servicer shall not be required to send such astatement for a fee that: (i) results from a service that is affirmativelyrequested by the borrower, (ii) is paid for by the borrower at the time theservice is provided, and (iii) is not charged to the borrower's loan account.

(2)        All amounts receivedby a servicer on a home loan at the address where the borrower has beeninstructed to make payments shall be accepted and credited, or treated ascredited, within one business day of the date received, provided that theborrower has made the full contractual payment and has provided sufficientinformation to credit the account. If a servicer uses the scheduled method ofaccounting, any regularly scheduled payment made prior to the scheduled duedate shall be credited no later than the due date. Provided, however, that ifany payment is received and not credited, or treated as credited, the borrowershall be notified within 10 business days by mail at the borrower's last knownaddress of the disposition of the payment, the reason the payment was notcredited, or treated as credited to the account, and any actions necessary bythe borrower to make the loan current.

(2a)      The notificationrequired by subdivision (2) of this section is not necessary if (i) theservicer complies with the terms of any agreement or plan made with theborrower and has applied and credited payments received in the manner required,and (ii) the servicer is applying and crediting payments to the borrower'saccount in compliance with all applicable State and federal laws, includingbankruptcy laws, and if at least one of the following occurs:

a.         The borrower hasentered into a written loss mitigation, loan modification, or forebearanceagreement with the servicer that itemizes all amounts due and specifies howpayments will be applied and credited;

b.         The borrower haselected to participate in an alternative payment plan, such as a biweeklypayment plan, that specifies as part of a written agreement how payments willbe applied and credited; or

c.         The borrower ismaking payments pursuant to a bankruptcy plan.

(3)        Failure to chargethe fee or provide the information within the allowable time and in the mannerrequired under subdivision (1) of subsection (a) of this section constitutes awaiver of such fee.

(4)        All fees charged bya servicer must be otherwise permitted under applicable law and the contractsbetween the parties. Nothing herein is intended to permit the application ofpayments or method of charging interest which is less protective of theborrower than the contracts between the parties and other applicable law.

(5)        The obligations ofmortgage servicers set forth in G.S. 53‑243.11.  (2007‑351, s. 5; 2008‑227,s. 1; 2008‑228, s. 19.)