§ 479-B:5 — Unlawful Practices

I. A foreclosure consultant shall have a fiduciary duty to the homeowner who retains his or her services and shall not act contrary to the interest of the homeowner.
II. A foreclosure consultant may not:
(a) Enter any agreement or provide any services on behalf of a homeowner until the homeowner has executed a foreclosure consulting contract;
(b) Claim, demand, charge, collect, or receive any compensation until after the foreclosure consultant has fully performed each and every service the foreclosure consultant contracted to perform or represented that the foreclosure consultant would perform;
(c) Take any wage assignment, any lien of any type on real or personal property, or other security to secure the payment of compensation. Any such security is null and void;
(d) Receive any consideration from any third party in connection with foreclosure consulting services provided to a homeowner unless the consideration is first fully disclosed in writing to the homeowner and the third party's interest does not conflict with the homeowner's or create a conflict between the consultant and the homeowner;
(e) Acquire any interest, directly or indirectly, or by means of a subsidiary, affiliate, or corporation in which the foreclosure consultant or a member of the foreclosure consultant's immediate family is a primary stockholder, in a residence in foreclosure from a homeowner with whom the foreclosure consultant has contracted;
(f) Take any power of attorney from a homeowner for any purpose, except to inspect documents as provided by law;
(g) Induce or attempt to induce any homeowner to enter into a foreclosure consulting contract that does not comply in all respects with this chapter; or
(h) Create or facilitate a transaction which would violate a homeowner's current deed of trust or other security interest, or which would constitute a default or cause a foreclosure or an acceleration of the debt secured by those agreements.
III. A pre-foreclosure purchaser may not:
(a) Enter into, or attempt to enter into, a pre-foreclosure conveyance with a homeowner unless:
(1) The pre-foreclosure purchaser verifies and can demonstrate that the homeowner has or will have a reasonable ability to pay for the subsequent reconveyance of the property back to the homeowner on completion of the terms of a pre-foreclosure conveyance, and if the pre-foreclosure conveyance provides for a lease with an option to repurchase the property, the homeowner has or will have a reasonable ability to make the lease payments and to repurchase the property within the term of the option to repurchase; and
(2) The pre-foreclosure purchaser and the homeowner complete a formal settlement before any transfer of an interest in the property is effected;
(b) Assign or transfer or facilitate the assignment or transfer of any interest in the homeowner's property until the requirements of this chapter have been met. Any such transfer or assignment shall be null and void;
(c) Obtain any interest in the homeowner's property on terms which would violate a homeowner's current deed of trust or other security interest, or which would constitute a default or cause a foreclosure or acceleration of the debt secured by those agreements;
(d) Fail to:
(1) Ensure that title to the property has been reconveyed to the homeowner in a timely manner if this chapter or the terms of a pre-foreclosure conveyance agreement require a reconveyance;
(2) Sell the property, if allowed under the terms of the conveyance, at a bona fide market sale to an unaffiliated third party; or
(3) Make payment to the homeowner within 90 days of any resale of the property so that the homeowner receives cash payments or consideration in an amount equal to at least 90 percent of the net proceeds from any resale of the property should a property subject to a pre-foreclosure conveyance be sold within 36 months after entering into a pre-foreclosure conveyance agreement. As used in this subparagraph, the term "net proceeds from any resale" means the resale price minus any necessary funds actually expended by the pre-foreclosure purchaser on the homeowner's behalf in order to delay or prevent the mortgage default of delinquency, foreclosure, or execution of a tax deed;
(e) Represent, directly or indirectly, that:
(1) The pre-foreclosure purchaser is acting as an advisor or a consultant, or in any other manner represent that the pre-foreclosure purchaser is acting on behalf of the homeowner;
(2) The pre-foreclosure purchaser has certification licensure or affiliations that the pre-foreclosure purchaser does not have; or
(3) The foreclosure purchaser is assisting the homeowner to avoid the loss of ownership, to "save the house," or a substantially similar phrase; or
(f) Until the homeowner's right to cancel the transaction has expired:
(1) Record any document transferring or encumbering any interest in the home; or
(2) Transfer or encumber or purport to transfer or encumber any interest in the residence to any third party.
IV. (a) The pre-foreclosure purchaser shall make a detailed accounting of the basis for the amount of a payment made to the homeowner of a property resold within 36 months after entering into a pre-foreclosure conveyance agreement.
(b) The accounting shall include detailed documentation of expenses and other consideration paid by the pre-foreclosure purchaser and deducted from the resale price.

Legislative History

2007, 322:1, eff. July 16, 2007.