TITLE 5
Businesses and Professions

CHAPTER 5-80
Mortgage Foreclosure Purchasers

SECTION 5-80-8


§ 5-80-8 Prohibited practices.

A foreclosure purchaser shall not:

(1) Enter into, or attempt to enter into, a foreclosure reconveyance with a foreclosed homeowner unless:

(i) The foreclosure purchaser verifies and can demonstrate that the foreclosed homeowner has a reasonable ability to pay for the subsequent conveyance of an interest back to the foreclosed homeowner. In the case of a lease with an option to purchase, payment ability also included the reasonable ability to make the lease payments and purchase the property within the term of the option to purchase. There is a rebuttable presumption that a homeowner is reasonably able to pay for the subsequent conveyance if the owner's payments for primary housing expenses and regular principal and interest payments on other personal debt, on a monthly basis, do not exceed sixty percent (60%) of the owner's monthly gross income. For the purposes of this section, "primary housing expenses" means the sum of payments for regular principal, interest, rent, utilities, hazard insurance, real estate taxes, and association dues. There is a rebuttable presumption that the foreclosure purchaser has not verified reasonable payment ability if the foreclosure purchaser has not obtained documents other than a statement by the foreclosed homeowner of assets, liabilities, and income;

(ii) The foreclosure purchaser and the foreclosed homeowner complete a closing for any foreclosure reconveyance in which the foreclosure purchaser obtains a deed or mortgage from a foreclosed homeowner. For purposes of this section, "closing" means an in-person meeting to complete final documents incident to the sale of the real property or creation of a mortgage on the real property conducted by a closing agent who is not employed by or an affiliate of the foreclosure purchaser;

(iii) The foreclosure purchaser obtains the written consent of the foreclosed homeowner to a grant by the foreclosure purchaser of any interest in the property during such times as the foreclosed homeowner maintains any interest in the property; and

(iv) The foreclosure purchaser complies with the requirements of the federal home Ownership Equity Protection Act, United States Code, title 15, § 1639, or its implementing regulation, Code of Federal Regulations, title 12, §§ 226.31 – 226.34, for any foreclosure reconveyance in which the foreclosed homeowner obtains a vendee interest in a contract for deed;

(2) Fail to either;

(i) Ensure that title to the subject dwelling has been reconveyed to the foreclosed homeowner; or

(ii) Make a payment to the foreclosed homeowner such that the foreclosed homeowner has received consideration in an amount of at least eighty two percent (82%) of the fair market value of the property within one hundred fifty (150) days of either the eviction or voluntary relinquishment of possession of the dwelling by the foreclosed homeowner. The foreclosure purchaser shall make a detailed accounting of the basis for the payment amount, or a detailed accounting of the reasons for failure to make a payment, including providing written documentation of expenses, within this one hundred fifty (150) day period. The accounting shall be on a form prescribed by the department of attorney general, in consultation with the department of business regulation, without being subject to the rulemaking procedures of chapter 42-35. For purposes of this provision, the following applies:

(A) There is a rebuttable presumption that an appraisal by a person licensed or certified by an agency of the federal government or this state to appraise real estate constitutes the fair market value of the property;

(B) The time for determining the fair market value amount shall be determined in the foreclosure reconveyance contract as either at the time of the execution of the foreclosure reconveyance contract or at resale. If the contract states that the fair market value shall be determined at the time of resale, the fair market value shall be the resale price if it is sold within one hundred twenty (120) days of the eviction or voluntary relinquishment of the property by the foreclosed homeowner. If the contract states that the fair market value shall be determined at the time of resale, and the resale is not completed within one hundred twenty (120) days of the eviction or voluntary relinquishment of the property by the foreclosed homeowner, the fair market value shall be determined by an appraisal conducted during this one hundred twenty (120) day period and payment, if required, shall be made to the homeowner, but the fair market value shall be recalculated as the resale price, on resale and an additional payment amount, if appropriate based on the resale price, shall be made to the foreclosed homeowner within fifteen (15) days of resale, and a detailed accounting of the basis for the payment amount, or a detailed accounting of the reasons for failure to make additional payment, shall be made within fifteen (15) days of resale, including providing written documentation of expenses. The accounting shall be on a form prescribed by the department of attorney general, in consultation with the department of business regulation, without being subject to the rulemaking procedures of chapter 42-35;

(C) "Consideration" shall mean any payment or item of value provided to the foreclosed homeowner, including unpaid rent or contract for deed payments owed by the foreclosed homeowner prior to the date of eviction or voluntary relinquishment of the property, reasonable costs paid to third parties necessary to complete the foreclosure reconveyance transaction, payment of money to satisfy a debt or legal obligation of the foreclosed homeowner, or the reasonable cost of repairs for damage to the dwelling caused by the foreclosed homeowner;

(D) "Consideration" shall not include amounts imputed as a down payment or fee to the foreclosure purchaser, or a person acting in participation with the foreclosure purchaser, incident to a contract for deed, lease, or option to purchase entered into as part of the foreclosure reconveyance, except for reasonable costs paid to third parties necessary to complete the foreclosure reconveyance;

(3) Enter into repurchase or lease terms as part of the subsequent conveyance that are unfair or commercially unreasonable, or engage in any other unfair conduct;

(4) Represent, directly or indirectly, that:

(i) The foreclosure purchaser is acting as an advisor or a consultant, or in any other manner represents that the foreclosure purchaser is acting on behalf of the homeowner;

(ii) The foreclosure purchaser has certification or licensure that the foreclosure purchaser does not have, or that the foreclosure purchaser is not a member of a licensed profession if that is untrue;

(iii) The foreclosure purchaser is assisting the foreclosed homeowner to "save the house" or substantially similar phrase; or

(iv) The foreclosure purchaser is assisting the foreclosed homeowner in preventing a completed foreclosure if the result of the transaction is that the foreclosed homeowner will not complete a redemption of the property;

(5) Make any other statements, directly or by implication, or engage in any other conduct that is false, deceptive, or misleading, or that has the likelihood to cause confusion or misunderstanding, including, but not limited to, statements regarding the value of the residence in foreclosure, the amount of proceeds the foreclosed homeowner will receive after a foreclosure sale, any contract term, or the foreclosed homeowner's rights or obligations incident to or arising out of the foreclosure reconveyance; or

(6) Do any of the following until the time during which the foreclosed homeowner may cancel the transaction has fully elapsed:

(i) Accept from any foreclosed homeowner an execution of, or induce any foreclosed homeowner to execute, any instrument of conveyance of any interest in the residence in foreclosure;

(ii) Record with the records of land evidence in the city or town where such foreclosed property is located any document, including, but not limited to, any instrument of conveyance, signed by the foreclosed homeowner;

(iii) Transfer or encumber or purport to transfer or encumber any interest in the residence in foreclosure to any third-party, provided no grant of any interest or encumbrance is defeated or affected as against a bona fide purchaser or encumbrance for value and without notice of a violation of §§ 5-80-1 – 5-80-9, and knowledge on the part of any such person or entity that the property was "residential real property in foreclosure" does not constitute notice of a violation of §§ 5-80-1 – 5-80-9. This section does not abrogate any duty of inquiry which exists as to rights or interest of persons in possession of the residential real property in foreclosure; or

(iv) Pay the foreclosed homeowner any consideration.

History of Section.
(P.L. 2006, ch. 242, § 2; P.L. 2006, ch. 287, § 2; P.L. 2009, ch. 310, § 45.)