As a small servicer, we understand we are subject to the Reg X requirement to not move for foreclosure judgment or order of sale if the borrower is performing pursuant to the terms of an agreement on a loss mitigation option. 1026.41(j)
Are we also required to wait until the borrower is 120 days delinquent to begin foreclosure proceedings under 1026.41(f)(1)?
If yes, would it matter that the borrower is requesting us to move forward now (at 35 days past due) and would waive his rights?
Would it also matter that we are the originator, owner and servicer of this mortgage? (servicing has never been transferred).
1024.41(f) will apply to you. There is nothing stated in regulation that allows the borrower to waive the 120 day rule. It would be a good idea to consult with your attorney on other options – deed in lieu of foreclosure might be a possibility.