Bill Text: GA HB508 | 2009-2010 | Regular Session | Introduced
Bill Title: Stop Mortgage Foreclosure Rescue Fraud Act of 2009; establish
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2009-02-24 - House Second Readers [HB508 Detail]
Download: Georgia-2009-HB508-Introduced.html
09 LC
35 1218
House
Bill 508
By:
Representative Mitchell of the
88th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
establish the "Stop Mortgage Foreclosure Rescue Fraud Act of 2009"; to amend
Article 7 of Chapter 14 of Title 44 of the Official Code of Georgia Annotated,
relating to foreclosure, so as to provide for homeowner relief from unfair
practices related to foreclosure and foreclosure rescue schemes; to provide for
monetary penalties; to provide for legislative findings and intent; to provide
for related matters; to provide for an effective date and applicability; to
repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
The
Legislature finds that homeowners who are in default on their mortgages, in
foreclosure, or at risk of losing their homes due to nonpayment of taxes may be
vulnerable to fraud, deception, and unfair dealings with foreclosure-rescue
consultants or equity purchasers. The intent of this Act is to provide a
homeowner with information necessary to make an informed decision regarding the
sale or transfer of his or her home to an equity purchaser. It is the further
intent of this section to require that foreclosure-related rescue services
agreements be expressed in writing in order to safeguard homeowners against
deceit and financial hardship; to ensure, foster, and encourage fair dealing in
the sale and purchase of homes in foreclosure or default; to prohibit
representations that tend to mislead; to prohibit or restrict unfair contract
terms; to afford homeowners a reasonable and meaningful opportunity to rescind
sales to equity purchasers; and to preserve and protect home equity for the
homeowners of this state.
SECTION
2.
This
act shall be known and may be sited as the "Stop Mortgage Foreclosure Rescue
Fraud Act of 2009."
SECTION
3.
Article
7 of Chapter 14 of Title 44 of the Official Code of Georgia Annotated, relating
to foreclosure, is amended by adding a new part as follows:
"Part
5
44-14-310.
(a)
As used in this part, the term:
(1)
'Equity purchaser' means any person who acquires a legal, equitable, or
beneficial ownership interest in any residential real property as a result of a
foreclosure-rescue transaction. The term does not apply to a person who
acquires the legal, equitable, or beneficial interest in such
property:
(A)
By a certificate of title from a foreclosure sale;
(B)
At a sale of property authorized by statute;
(C)
By order or judgment of any court;
(D)
From a spouse, parent, grandparent, child, grandchild, or sibling of the person
or the person's spouse; or
(E)
As a deed in lieu of foreclosure, a workout agreement, a bankruptcy plan, or any
other agreement between a foreclosing lender and a homeowner.
(2)
'Foreclosure-rescue consultant' means a person who directly or indirectly makes
a solicitation, representation, or offer to a homeowner to provide or perform,
in return for payment of money or other valuable consideration,
foreclosure-related rescue services. The term does not apply to:
(A)
A person acting under the express authority or written approval of the United
States Department of Housing and Urban Development or other department or agency
of the United States or this state to provide foreclosure-related rescue
services.
(B)
A charitable, nonprofit agency or organization, as determined by the United
States Internal Revenue Service under Section 501(c)(3) of the Internal Revenue
Code, which offers counseling or advice to an owner of residential real property
in foreclosure or loan default if the agency or organization does not contract
for foreclosure-related rescue services with a for profit lender or person
facilitating or engaging in foreclosure-rescue transactions.
(C)
A person who holds or is owed an obligation secured by a lien or other
instrument against residential real property in foreclosure if the person
performs foreclosure-related rescue services in connection with this obligation
or lien and the obligation or lien was not the result of or part of a proposed
foreclosure reconveyance or foreclosure-rescue transaction.
(D)
A financial institution and any parent or subsidiary of the financial
institution or of the parent or subsidiary as such terms are defined in Code
Section 7-1-4.
(E)
A licensed mortgage broker, mortgage lender, or correspondent mortgage lender
that provides mortgage counseling or advice regarding residential real property
in foreclosure, which counseling or advice is provided without payment of money
or other consideration other than a mortgage brokerage commission.
(3)
'Foreclosure-related rescue services' means any good or service related to, or
promising assistance in connection with:
(A)
Stopping, avoiding, or delaying foreclosure proceedings concerning residential
real property; or
(B)
Curing or otherwise addressing a default or failure to timely pay with respect
to a residential mortgage loan obligation.
(4)
'Foreclosure-rescue transaction' means a transaction:
(A)
By which residential real property in foreclosure is conveyed to an equity
purchaser and the homeowner maintains a legal or equitable interest in the
residential real property conveyed, including, without limitation, a lease
option interest, an option to acquire the property, an interest as beneficiary
or trustee to a land trust, or other interest in the property conveyed;
and
(B)
That is designed or intended by the parties to stop, avoid, or delay foreclosure
proceedings against a homeowner's residential real property.
(5)
'Homeowner' means any record title owner of residential real property that is
the subject of foreclosure proceedings.
(6)
'Residential real property' means real property consisting of one-family to
four-family dwelling units, one of which is occupied by the owner as his or her
principal place of residence.
(7)
'Residential real property in foreclosure' means residential real property
against which there is an outstanding notice of the pendency of foreclosure
proceedings properly filed and recorded.
44-14-311.
In
the course of offering or providing foreclosure-related rescue services, a
foreclosure-rescue consultant may not:
(a)
Engage in or initiate foreclosure-related rescue services without first
executing a written agreement with the homeowner for foreclosure-related rescue
services; or
(b)
Solicit, charge, receive, or attempt to collect or secure payment, directly or
indirectly, for foreclosure-related rescue services before completing or
performing all services contained in the agreement for foreclosure-related
rescue services.
44-14-312.
(a)
Foreclosure-related rescue services shall only be provided pursuant to a written
agreement. The written agreement for foreclosure-related rescue services must
be printed in at least 12 point uppercase font, except where 14 point font is
required by this Code Section, and signed by both parties. The agreement must
include the name and address of the person providing foreclosure-related rescue
services, the exact nature and specific detail of each service to be provided,
the total amount and terms of charges to be paid by the homeowner for the
services, and the date of the agreement. The date of the agreement may not be
earlier than the date the homeowner signed the agreement. The
foreclosure-rescue consultant must give the homeowner a copy of the agreement to
review not less than one business day before the homeowner is to sign the
agreement.
(b)
The homeowner has the right to cancel the written agreement without any penalty
or obligation if the homeowner cancels the agreement within three business days
after signing the written agreement. The right to cancel may not be waived by
the homeowner or limited in any manner by the foreclosure-rescue consultant. If
the homeowner cancels the agreement, any payments that have been given to the
foreclosure-rescue consultant must be returned to the homeowner within ten
business days after receipt of the notice of cancellation.
(c)
An agreement for foreclosure-related rescue services must contain, immediately
above the signature line, a statement in capital letters in at least 14 point
font that substantially complies with the following:
'HOMEOWNER'S
RIGHT OF CANCELLATION
YOU
MAY CANCEL THIS AGREEMENT FOR FORECLOSURE-RELATED RESCUE SERVICES WITHOUT ANY
PENALTY OR OBLIGATION WITHIN THREE BUSINESS DAYS FOLLOWING THE DATE THIS
AGREEMENT IS SIGNED BY YOU.
THE
FORECLOSURE-RESCUE CONSULTANT IS PROHIBITED BY LAW FROM ACCEPTING ANY MONEY,
PROPERTY, OR OTHER FORM OF PAYMENT FROM YOU UNTIL ALL PROMISED SERVICES ARE
COMPLETE. IF FOR ANY REASON YOU HAVE PAID THE CONSULTANT BEFORE CANCELLATION,
YOUR PAYMENT MUST BE RETURNED TO YOU NO LATER THAN TEN BUSINESS DAYS AFTER THE
CONSULTANT RECEIVES YOUR CANCELLATION NOTICE.
TO
CANCEL THIS AGREEMENT, A SIGNED AND DATED COPY OF A STATEMENT THAT YOU ARE
CANCELING THE AGREEMENT SHOULD BE MAILED (POSTMARKED) OR DELIVERED TO
................ (NAME) AT ...............(ADDRESS) NO LATER THAN MIDNIGHT OF
...........(DATE).
IMPORTANT:
IT IS RECOMMENDED THAT YOU CONTACT YOUR LENDER OR MORTGAGE SERVICER BEFORE
SIGNING THIS AGREEMENT. YOUR LENDER OR MORTGAGE SERVICER MAY BE WILLING TO
NEGOTIATE A PAYMENT PLAN OR A RESTRUCTURING WITH YOU FREE OF
CHARGE.'
(d)
The inclusion of the statement does not prohibit the foreclosure-rescue
consultant from giving the homeowner more time in which to cancel the agreement
than is set forth in the statement, provided all other requirements of this
subsection are met.
(e)
The foreclosure-rescue consultant must give the homeowner a copy of the signed
agreement within three hours after the homeowner signs the
agreement.
44-14-313.
(a)
A foreclosure-rescue transaction must include a written agreement prepared in at
least 12 point uppercase font, except where 14 point font is required by this
Code Section, that is completed, signed, and dated by the homeowner and the
equity purchaser before executing any instrument from the homeowner to the
equity purchaser quitclaiming, assigning, transferring, conveying, or
encumbering an interest in the residential real property in foreclosure. The
equity purchaser must give the homeowner a copy of the completed agreement
within three hours after the homeowner signs the agreement. The agreement must
contain the entire understanding of the parties and must include:
(1)
The name, business address, and telephone number of the equity
purchaser.
(2)
The street address and full legal description of the property.
(3)
Clear and conspicuous disclosure of any financial or legal obligations of the
homeowner that will be assumed by the equity purchaser.
(4)
The total consideration to be paid by the equity purchaser in connection with or
incident to the acquisition of the property by the equity
purchaser.
(5)
The terms of payment or other consideration, including, but not limited to, any
services that the equity purchaser represents will be performed for the
homeowner before or after the sale.
(6)
The date and time when possession of the property is to be transferred to the
equity purchaser.
(b)
A foreclosure-rescue transaction agreement must contain, above the signature
line, and above the name and signature of the purchasing party or parties, a
statement in capital letters in at least 14 point font that substantially
complies with the following:
'I
UNDERSTAND THAT UNDER THIS AGREEMENT I AM SELLING MY HOME TO THE UNDERSIGNED
PARTY.'
(c)
A foreclosure-rescue transaction agreement must state the specifications of any
option or right to repurchase the residential real property in foreclosure,
including the specific amounts of any escrow payments or deposit, down payment,
purchase price, closing costs, commissions, or other fees or costs.
(d)
A foreclosure-rescue transaction agreement must comply with all applicable
provisions of 15 U.S.C. ss. 1600 et seq. and related regulations.
(e)
The homeowner may cancel the foreclosure-rescue transaction agreement without
penalty if the homeowner notifies the equity purchaser of such cancellation no
later than 5 P.M. on the third business day after signing the written agreement.
Any moneys paid by the equity purchaser to the homeowner or by the homeowner to
the equity purchaser must be returned at cancellation. The right to cancel does
not limit or otherwise affect the homeowner's right to cancel the transaction
under any other law. The right to cancel may not be waived by the homeowner or
limited in any way by the equity purchaser. The equity purchaser must give the
homeowner, at the time the written agreement is signed, a notice of the
homeowner's right to cancel the foreclosure-rescue transaction as set forth in
this subsection. The notice, which must be set forth on a separate cover sheet
to the written agreement that contains no other written or pictorial material,
must be in capital letters in at least 14 point font, double-spaced, and read as
follows:
'NOTICE
TO THE HOMEOWNER/SELLER
PLEASE
READ THIS FORM COMPLETELY AND CAREFULLY. IT CONTAINS VALUABLE INFORMATION
REGARDING CANCELLATION RIGHTS.
BY
THIS CONTRACT, YOU ARE AGREEING TO SELL YOUR HOME. YOU MAY CANCEL THIS
TRANSACTION AT ANY TIME BEFORE 5:00 P.M. OF THE THIRD BUSINESS DAY FOLLOWING
RECEIPT OF THIS NOTICE.
THIS
CANCELLATION RIGHT MAY NOT BE WAIVED IN ANY MANNER BY YOU OR BY THE
PURCHASER.
ANY
MONEY PAID DIRECTLY TO YOU BY THE PURCHASER MUST BE RETURNED TO THE PURCHASER AT
CANCELLATION. ANY MONEY PAID BY YOU TO THE PURCHASER MUST BE RETURNED TO YOU AT
CANCELLATION.
TO
CANCEL, SIGN THIS FORM AND RETURN IT TO THE PURCHASER BY 5:00 P.M. ON
...........(DATE) AT ........................ (ADDRESS). IT IS BEST TO MAIL IT
BY CERTIFIED MAIL OR OVERNIGHT DELIVERY, RETURN RECEIPT REQUESTED, AND TO KEEP A
PHOTOCOPY OF THE SIGNED FORM AND YOUR POST OFFICE RECEIPT.
I
(we) hereby cancel this transaction.
.......................................................................seller's
signature
........................................................................
seller's name
...........................................................................
date'
44-14-314.
(a)
In any foreclosure-rescue transaction in which the homeowner is provided the
right to repurchase the residential real property, the homeowner has a 30 day
right to cure any default of the terms of the contract with the equity
purchaser, and this right to cure may be exercised on up to three separate
occasions. The homeowner's right to cure must be included in any written
agreement required by this subsection.
(b)
In any foreclosure-rescue transaction, before or at the time of conveyance, the
equity purchaser must fully assume or discharge any lien in foreclosure as well
as any prior liens that will not be extinguished by the
foreclosure.
(c)
If the homeowner has the right to repurchase the residential real property, the
equity purchaser must verify and be able to demonstrate that the homeowner has
or will have a reasonable ability to make the required payments to exercise the
option to repurchase under the written agreement. For purposes of this
subsection, there is a rebuttable presumption that the homeowner has a
reasonable ability to make the payments required to repurchase the property if
the homeowner's monthly payments for primary housing expenses and regular
monthly principal and interest payments on other personal debt do not exceed 60
percent of the homeowner's monthly gross income.
(d)
If the homeowner has the right to repurchase the residential real property, the
price the homeowner pays may not be unconscionable, unfair, or commercially
unreasonable. A rebuttable presumption, solely between the equity purchaser and
the homeowner, arises that the foreclosure-rescue transaction was unconscionable
if the homeowner's repurchase price is greater than 17 percent per annum more
than the total amount paid by the equity purchaser to acquire, improve,
maintain, and hold the property. Unless the record provided by this part is
properly filed and recorded, the presumption arising under this subsection shall
not apply against creditors or purchasers for a valuable consideration and
without notice.
44-14-315.
Any
foreclosure-rescue transaction involving a lease option or other repurchase
agreement creates a rebuttable presumption, solely between the equity purchaser
and the homeowner, that the transaction is a loan transaction and the conveyance
from the homeowner to the equity purchaser is a mortgage. Unless the lease
option or other repurchase agreement, or a memorandum of the lease option or
other repurchase agreement, is properly filed and recorded, the presumption
created under this subsection shall not apply against creditors or subsequent
purchasers for a valuable consideration and without notice.
44-14-316.
A
person who violates any provision of this section commits an unfair and
deceptive trade practice. Violators are subject to the penalties and remedies
provided for in Part 2 of Article 15 of Chapter 1 of Title 10, relating to the
'Fair Business Practices Act,' and in addition may be subject to a monetary
penalty not to exceed $30,000.00 per violation.
SECTION
4.
This
Act shall become effective on July 1, 2009, and shall apply to agreements
entered into on or after such date.
SECTION
5.
All
laws and parts of laws in conflict with this Act are repealed.