SENATE BILL NO. 1431
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S1431aa..............................................by JUDICIARY AND RULES
FORECLOSURES - Adds to and amends existing law relating to liens and
foreclosures to provide legislative findings; to provide for certain
contracts in writing; to provide for notice relating to mortgage
foreclosure; to provide for right of contract rescission; to provide for
exclusions; and to provide penalties.
02/14 Senate intro - 1st rdg - to printing
02/15 Rpt prt - to Jud
02/19 Ref'd to Com/HuRes
02/20 Rpt out - to 14th Ord
02/21 Rpt out amen - to engros
02/22 Rpt engros - 1st rdg - to 2nd rdg as amen
02/25 2nd rdg - to 3rd rdg as amen
02/26 3rd rdg as amen - PASSED - 34-0-1
AYES -- Andreason, Bair, Bastian, Bilyeu, Broadsword, Burkett,
Cameron, Coiner, Corder, Darrington, Davis, Fulcher, Gannon, Geddes,
Goedde, Hammond, Heinrich, Hill, Kelly, Keough, Langhorst, Little,
Lodge, Malepeai(Sagness), McGee, McKague, McKenzie, Pearce,
Richardson Schroeder, Siddoway, Stegner, Stennett, Werk
NAYS -- None
Absent and excused -- Jorgenson
Floor Sponsor - Werk
Title apvd - to House
02/27 House intro - 1st rdg - to Jud
03/11 Rpt out - rec d/p - to 2nd rdg
03/12 2nd rdg - to 3rd rdg
03/13 3rd rdg - PASSED - 65-0-5
AYES -- Anderson, Andrus, Barrett, Bayer, Bedke, Bell, Black, Block,
Bock, Boe, Bolz, Bowers, Brackett, Bradford, Chadderdon, Chavez,
Chew, Collins, Crane, Durst, Eskridge, Hagedorn, Hart, Harwood,
Henbest, Henderson, Jaquet, Killen, King, Kren, Labrador, Lake,
LeFavour, Loertscher, Luker, Marriott, Mathews, McGeachin, Mortimer,
Moyle, Nielsen, Pasley-Stuart, Pence, Raybould, Ringo, Roberts,
Ruchti, Rusche, Sayler, Shepherd(02), Shepherd(08), Shirley, Shively,
Smith(30), Smith(24), Snodgrass, Stevenson, Thayn, Thomas, Trail,
Vander Woude, Wills, Wood(27), Wood(35), Mr. Speaker
NAYS -- None
Absent and excused -- Bilbao, Clark, Nonini, Patrick, Schaefer
Floor Sponsor - Killen
Title apvd - to Senate
03/14 To enrol
03/17 Rpt enrol - Pres signed - Sp signed
03/18 To Governor
03/18 Governor signed
Session Law Chapter 192
Effective: 07/01/08
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-ninth Legislature Second Regular Session - 2008
IN THE SENATE
SENATE BILL NO. 1431
BY JUDICIARY AND RULES COMMITTEE
1 AN ACT
2 RELATING TO LIENS AND FORECLOSURES; AMENDING TITLE 45, IDAHO CODE, BY THE
3 ADDITION OF A NEW CHAPTER 16, TITLE 45, IDAHO CODE, TO PROVIDE LEGISLATIVE
4 FINDINGS, TO PROVIDE FOR CERTAIN CONTRACTS IN WRITING, TO PROVIDE FOR
5 NOTICE RELATING TO MORTGAGE FORECLOSURE, TO PROVIDE FOR RIGHT OF CONTRACT
6 RESCISSION AND TO PROVIDE PENALTIES; AND AMENDING SECTION 45-1505, IDAHO
7 CODE, TO PROVIDE FOR NOTICE RELATING TO MORTGAGE FORECLOSURE.
8 Be It Enacted by the Legislature of the State of Idaho:
9 SECTION 1. That Title 45, Idaho Code, be, and the same is hereby amended
10 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap-
11 ter 16, Title 45, Idaho Code, and to read as follows:
12 CHAPTER 16
13 CONSUMER FORECLOSURE PROTECTION ACT
14 45-1601. LEGISLATIVE FINDINGS. The legislature finds that some persons
15 and businesses are engaging in patterns of conduct that defraud innocent
16 homeowners of their title, equity interest, or other value in residential
17 dwellings under the guise of stopping or postponing a foreclosure sale. The
18 legislature also finds this activity to be contrary to the public policy of
19 this state and therefore establishes notice requirements governing contracts
20 or agreements entered into during the foreclosure period. The legislature fur-
21 ther finds that the provisions of this chapter shall be construed in such a
22 manner that it does not inhibit transactions with legitimate lenders and
23 investors.
24 45-1602. CONTRACT NOTICE. (1) During the foreclosure period described in
25 section 45-1505, Idaho Code, any contract or agreement that involves the
26 transfer of any interest in property subject to foreclosure, or the transfer
27 of money in regard to property subject to foreclosure, must be in writing and
28 must be accompanied by and affixed to the following notice in twelve (12)
29 point boldface type and on a separate sheet of canary yellow or some similarly
30 colored yellow paper no smaller than eight and one-half (8 1/2) inches by
31 eleven (11) inches:
32 "NOTICE REQUIRED BY IDAHO LAW
33 Mortgage foreclosure is a legal proceeding where a lender terminates
34 a borrower's interest in property to satisfy unpaid debt secured by
35 the property. This can mean that when a homeowner gets behind on his
36 or her mortgage payments, the lender forces a sale of the home on
37 which the mortgage loan is based. Some individuals or businesses may
38 say they can "save" your home from foreclosure. You should be cau-
39 tious about such claims. It is important that you understand all the
2
1 terms of a plan to "rescue" you from mortgage foreclosure and how it
2 will affect you. It may result in your losing valuable equity that
3 you may have in your home. If possible, you should consult with an
4 attorney or financial professional to find out what other options you
5 may have. Do not delay seeking advice, because the longer you wait,
6 the fewer options you may have.
7 You may find helpful information online. One excellent source is the
8 Department of Housing and Urban Development (HUD) website which can
9 be found at "http://www.hud.gov/foreclosure/index.cfm". HUD also
10 maintains on its website a list of approved housing counselors who
11 can provide free information to assist homeowners with financial
12 problems. Another good source of information is found at the Office
13 of the Attorney General's website at "http://www2.state.id.us/ag/".
14 Under Idaho law, you have five (5) days to rescind or undo certain
15 contracts or agreements that relate to transferring interests in
16 property or money in a foreclosure situation. An attorney or finan-
17 cial professional can tell you more about this option.".
18 (2) If during the foreclosure period described in section 45-1505, Idaho
19 Code, any contract or agreement that involves the transfer of any interest in
20 property subject to foreclosure, or the transfer of money in regard to prop-
21 erty subject to foreclosure, was solicited, negotiated, or represented to the
22 consumer in the Spanish language, the written notice to be provided to the
23 consumer and set forth in this section shall be in the Spanish language on a
24 form to be prepared and made available by the office of the attorney general.
25 45-1603. RIGHT OF RESCISSION OF CONTRACT. (1) In addition to any other
26 legal right to cancel or rescind a contract, any person whose property is in
27 foreclosure as described in section 45-1505, Idaho Code, has the right to can-
28 cel or rescind any and all contracts or agreements relating to such property
29 entered into during the foreclosure period within five (5) business days of
30 entering into such contract or agreement.
31 (2) Cancellation occurs when such person gives written notice of cancel-
32 lation to all other parties to the contract. Notice of cancellation need not
33 take any particular form and, however expressed, is effective if it indicates
34 the intention not to be bound by the contract.
35 (3) Notice of cancellation, if given by mail, is effective when deposited
36 in the mail properly addressed with postage prepaid. Notice by certified mail,
37 return receipt requested, addressed to the address specified in the contract
38 or agreement, shall be conclusive proof of notice of service.
39 45-1604. PENALTIES. In addition to any other penalty provided by law, any
40 person who violates the provisions of this chapter shall be liable for penal-
41 ties and damages in accordance with chapter 6, title 48, Idaho Code.
42 SECTION 2. That Section 45-1505, Idaho Code, be, and the same is hereby
43 amended to read as follows:
44 45-1505. FORECLOSURE OF TRUST DEED, WHEN. The trustee may foreclose a
45 trust deed by advertisement and sale under this act if:
46 (1) The trust deed, any assignments of the trust deed by the trustee or
47 the beneficiary and any appointment of a successor trustee are recorded in
48 mortgage records in the counties in which the property described in the deed
3
1 is situated; and
2 (2) There is a default by the grantor or other person owing an obligation
3 the performance of which is secured by the trust deed or by their successors
4 in interest with respect to any provision in the deed which authorizes sale in
5 the event of default of such provision; and
6 (3) The trustee or beneficiary shall have (a) filed for record in the
7 office of the recorder in each county wherein the trust property, or some part
8 or parcel, is situated, a notice of default identifying the deed of trust by
9 stating the name or names of the trustor or trustors and giving the book and
10 page where the same is recorded, or a description of the trust property, and
11 containing a statement that a breach of the obligation for which the transfer
12 in trust is security has occurred, and setting forth the nature of such breach
13 and his election to sell or cause to be sold such property to satisfy such
14 obligation; and (b) mailed a copy of such notice by registered or certified
15 mail, return receipt requested, to any person requesting such notice of record
16 as provided in section 45-1511, Idaho Code. Service by mail in accordance with
17 this subsection (3) shall be deemed effective at the time of mailing. In addi-
18 tion, the trustee shall mail the notice required in this section to any indi-
19 vidual who owns an interest in property which is the subject of this section.
20 Such notice shall be accompanied by and affixed to the following notice in
21 twelve (12) point boldface type, on a separate sheet of canary yellow or some
22 similarly colored yellow paper, no smaller than eight and one-half (8 1/2)
23 inches by eleven (11) inches:
24 "NOTICE REQUIRED BY IDAHO LAW
25 Mortgage foreclosure is a legal proceeding where a lender terminates
26 a borrower's interest in property to satisfy unpaid debt secured by
27 the property. This can mean that when a homeowner gets behind on his
28 or her mortgage payments, the lender forces a sale of the home on
29 which the mortgage loan is based. Some individuals or businesses may
30 say they can "save" your home from foreclosure. You should be cau-
31 tious about such claims. It is important that you understand all the
32 terms of a plan to "rescue" you from mortgage foreclosure and how it
33 will affect you. It may result in your losing valuable equity that
34 you may have in your home. If possible, you should consult with an
35 attorney or financial professional to find out what other options you
36 may have. Do not delay seeking advice, because the longer you wait,
37 the fewer options you may have.
38 Under Idaho law, you have five (5) days to rescind or undo certain
39 contracts or agreements that relate to transferring interests in
40 property or money in a foreclosure situation. An attorney or finan-
41 cial professional can tell you more about this option.".
42 If the trust deed, or any assignments of the trust deed, are in the Span-
43 ish language, the written notice set forth in this section shall be in the
44 Spanish language on a form to be prepared and made available by the office of
45 the attorney general.
46 (4) No action, suit or proceeding has been instituted to recover the debt
47 then remaining secured by the trust deed, or any part thereof, or if such
48 action or proceeding has been instituted, the action or proceeding has been
49 dismissed.
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-ninth Legislature Second Regular Session - 2008
Moved by Werk
Seconded by Broadsword
IN THE SENATE
SENATE AMENDMENT TO S.B. NO. 1431
1 AMENDMENT TO SECTION 1
2 On page 1 of the printed bill, in line 25, delete "45-1505" and insert:
3 "45-1506"; and also in line 25, following "agreement" insert: "with the owner
4 or owners of record"; in line 26, following "in" insert: "residential real";
5 and also in line 26, following "property" insert: ", as defined in section
6 45-525(5)(b), Idaho Code,"; and also in line 26, delete ", or the transfer"
7 and in line 27, delete "of money in regard to property subject to foreclo-
8 sure,".
9 On page 2, in line 18, delete "45-1505" and insert: "45-1506"; in line 19,
10 following "in" insert: "residential real"; in line 20, following "property"
11 insert: ", as defined in section 45-525(5)(b), Idaho Code,"; and also in line
12 20, delete ", or the transfer of money in regard to prop-"; and in line 21,
13 delete "erty subject to foreclosure,"; in line 30, following "agreement."
14 insert: "Neither funds nor an interest in the property shall be transferred or
15 transferable until the five (5) days have passed."; following line 38, insert:
16 "45-1604. EXCLUSIONS. The provisions of this chapter shall not apply to:
17 (1) Regulated lenders, as defined in section 28-41-301(37), Idaho Code;
18 (2) Any person licensed or chartered under the laws of any state or of
19 the United States as a bank, trust company, savings and loan association,
20 credit union, or industrial loan company. The terms "bank," "trust company,"
21 "savings and loan association," "credit union" and "industrial loan company"
22 shall include affiliates or wholly-owned subsidiaries of such organizations,
23 provided that the affiliate or subsidiary is regularly examined by the char-
24 tering state or federal agency for consumer compliance purposes;
25 (3) Mortgage lenders and mortgage brokers licensed under the Idaho resi-
26 dential mortgage practices act, sections 26-3101 et seq., Idaho Code;
27 (4) Employees and agents of the organizations specified in subsections
28 (1), (2) and (3) of this section, when acting within the scope of such employ-
29 ment or agency; and
30 (5) Family member or members of the owner or owners of record of any
31 interest in residential real property subject to foreclosure. For purposes of
32 this chapter, "family member or members" means a natural person or the spouse
33 of a natural person who is related to such owner or owners of record by blood,
34 adoption or marriage within the second degree of consanguinity or a grandchild
35 or the spouse of a grandchild.";
36 and in line 39, delete "45-1604" and insert: "45-1605".
37 CORRECTION TO TITLE
38 On page 1, in line 6, following "RESCISSION" insert: ", TO PROVIDE FOR
39 EXCLUSIONS".
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-ninth Legislature Second Regular Session - 2008
IN THE SENATE
SENATE BILL NO. 1431, As Amended
BY JUDICIARY AND RULES COMMITTEE
1 AN ACT
2 RELATING TO LIENS AND FORECLOSURES; AMENDING TITLE 45, IDAHO CODE, BY THE
3 ADDITION OF A NEW CHAPTER 16, TITLE 45, IDAHO CODE, TO PROVIDE LEGISLATIVE
4 FINDINGS, TO PROVIDE FOR CERTAIN CONTRACTS IN WRITING, TO PROVIDE FOR
5 NOTICE RELATING TO MORTGAGE FORECLOSURE, TO PROVIDE FOR RIGHT OF CONTRACT
6 RESCISSION, TO PROVIDE FOR EXCLUSIONS AND TO PROVIDE PENALTIES; AND AMEND-
7 ING SECTION 45-1505, IDAHO CODE, TO PROVIDE FOR NOTICE RELATING TO MORT-
8 GAGE FORECLOSURE.
9 Be It Enacted by the Legislature of the State of Idaho:
10 SECTION 1. That Title 45, Idaho Code, be, and the same is hereby amended
11 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap-
12 ter 16, Title 45, Idaho Code, and to read as follows:
13 CHAPTER 16
14 CONSUMER FORECLOSURE PROTECTION ACT
15 45-1601. LEGISLATIVE FINDINGS. The legislature finds that some persons
16 and businesses are engaging in patterns of conduct that defraud innocent
17 homeowners of their title, equity interest, or other value in residential
18 dwellings under the guise of stopping or postponing a foreclosure sale. The
19 legislature also finds this activity to be contrary to the public policy of
20 this state and therefore establishes notice requirements governing contracts
21 or agreements entered into during the foreclosure period. The legislature fur-
22 ther finds that the provisions of this chapter shall be construed in such a
23 manner that it does not inhibit transactions with legitimate lenders and
24 investors.
25 45-1602. CONTRACT NOTICE. (1) During the foreclosure period described in
26 section 45-1506, Idaho Code, any contract or agreement with the owner or
27 owners of record that involves the transfer of any interest in residential
28 real property, as defined in section 45-525(5)(b), Idaho Code, subject to
29 foreclosure must be in writing and must be accompanied by and affixed to the
30 following notice in twelve (12) point boldface type and on a separate sheet of
31 canary yellow or some similarly colored yellow paper no smaller than eight and
32 one-half (8 1/2) inches by eleven (11) inches:
33 "NOTICE REQUIRED BY IDAHO LAW
34 Mortgage foreclosure is a legal proceeding where a lender terminates
35 a borrower's interest in property to satisfy unpaid debt secured by
36 the property. This can mean that when a homeowner gets behind on his
37 or her mortgage payments, the lender forces a sale of the home on
38 which the mortgage loan is based. Some individuals or businesses may
39 say they can "save" your home from foreclosure. You should be cau-
2
1 tious about such claims. It is important that you understand all the
2 terms of a plan to "rescue" you from mortgage foreclosure and how it
3 will affect you. It may result in your losing valuable equity that
4 you may have in your home. If possible, you should consult with an
5 attorney or financial professional to find out what other options you
6 may have. Do not delay seeking advice, because the longer you wait,
7 the fewer options you may have.
8 You may find helpful information online. One excellent source is the
9 Department of Housing and Urban Development (HUD) website which can
10 be found at "http://www.hud.gov/foreclosure/index.cfm". HUD also
11 maintains on its website a list of approved housing counselors who
12 can provide free information to assist homeowners with financial
13 problems. Another good source of information is found at the Office
14 of the Attorney General's website at "http://www2.state.id.us/ag/".
15 Under Idaho law, you have five (5) days to rescind or undo certain
16 contracts or agreements that relate to transferring interests in
17 property or money in a foreclosure situation. An attorney or finan-
18 cial professional can tell you more about this option.".
19 (2) If during the foreclosure period described in section 45-1506, Idaho
20 Code, any contract or agreement that involves the transfer of any interest in
21 residential real property, as defined in section 45-525(5)(b), Idaho Code, was
22 solicited, negotiated, or represented to the consumer in the Spanish language,
23 the written notice to be provided to the consumer and set forth in this sec-
24 tion shall be in the Spanish language on a form to be prepared and made avail-
25 able by the office of the attorney general.
26 45-1603. RIGHT OF RESCISSION OF CONTRACT. (1) In addition to any other
27 legal right to cancel or rescind a contract, any person whose property is in
28 foreclosure as described in section 45-1505, Idaho Code, has the right to can-
29 cel or rescind any and all contracts or agreements relating to such property
30 entered into during the foreclosure period within five (5) business days of
31 entering into such contract or agreement. Neither funds nor an interest in the
32 property shall be transferred or transferable until the five (5) days have
33 passed.
34 (2) Cancellation occurs when such person gives written notice of cancel-
35 lation to all other parties to the contract. Notice of cancellation need not
36 take any particular form and, however expressed, is effective if it indicates
37 the intention not to be bound by the contract.
38 (3) Notice of cancellation, if given by mail, is effective when deposited
39 in the mail properly addressed with postage prepaid. Notice by certified mail,
40 return receipt requested, addressed to the address specified in the contract
41 or agreement, shall be conclusive proof of notice of service.
42 45-1604. EXCLUSIONS. The provisions of this chapter shall not apply to:
43 (1) Regulated lenders, as defined in section 28-41-301(37), Idaho Code;
44 (2) Any person licensed or chartered under the laws of any state or of
45 the United States as a bank, trust company, savings and loan association,
46 credit union, or industrial loan company. The terms "bank," "trust company,"
47 "savings and loan association," "credit union" and "industrial loan company"
48 shall include affiliates or wholly-owned subsidiaries of such organizations,
49 provided that the affiliate or subsidiary is regularly examined by the char-
50 tering state or federal agency for consumer compliance purposes;
3
1 (3) Mortgage lenders and mortgage brokers licensed under the Idaho resi-
2 dential mortgage practices act, sections 26-3101 et seq., Idaho Code;
3 (4) Employees and agents of the organizations specified in subsections
4 (1), (2) and (3) of this section, when acting within the scope of such employ-
5 ment or agency; and
6 (5) Family member or members of the owner or owners of record of any
7 interest in residential real property subject to foreclosure. For purposes of
8 this chapter, "family member or members" means a natural person or the spouse
9 of a natural person who is related to such owner or owners of record by blood,
10 adoption or marriage within the second degree of consanguinity or a grandchild
11 or the spouse of a grandchild.
12 45-1605. PENALTIES. In addition to any other penalty provided by law, any
13 person who violates the provisions of this chapter shall be liable for penal-
14 ties and damages in accordance with chapter 6, title 48, Idaho Code.
15 SECTION 2. That Section 45-1505, Idaho Code, be, and the same is hereby
16 amended to read as follows:
17 45-1505. FORECLOSURE OF TRUST DEED, WHEN. The trustee may foreclose a
18 trust deed by advertisement and sale under this act if:
19 (1) The trust deed, any assignments of the trust deed by the trustee or
20 the beneficiary and any appointment of a successor trustee are recorded in
21 mortgage records in the counties in which the property described in the deed
22 is situated; and
23 (2) There is a default by the grantor or other person owing an obligation
24 the performance of which is secured by the trust deed or by their successors
25 in interest with respect to any provision in the deed which authorizes sale in
26 the event of default of such provision; and
27 (3) The trustee or beneficiary shall have (a) filed for record in the
28 office of the recorder in each county wherein the trust property, or some part
29 or parcel, is situated, a notice of default identifying the deed of trust by
30 stating the name or names of the trustor or trustors and giving the book and
31 page where the same is recorded, or a description of the trust property, and
32 containing a statement that a breach of the obligation for which the transfer
33 in trust is security has occurred, and setting forth the nature of such breach
34 and his election to sell or cause to be sold such property to satisfy such
35 obligation; and (b) mailed a copy of such notice by registered or certified
36 mail, return receipt requested, to any person requesting such notice of record
37 as provided in section 45-1511, Idaho Code. Service by mail in accordance with
38 this subsection (3) shall be deemed effective at the time of mailing. In addi-
39 tion, the trustee shall mail the notice required in this section to any indi-
40 vidual who owns an interest in property which is the subject of this section.
41 Such notice shall be accompanied by and affixed to the following notice in
42 twelve (12) point boldface type, on a separate sheet of canary yellow or some
43 similarly colored yellow paper, no smaller than eight and one-half (8 1/2)
44 inches by eleven (11) inches:
45 "NOTICE REQUIRED BY IDAHO LAW
46 Mortgage foreclosure is a legal proceeding where a lender terminates
47 a borrower's interest in property to satisfy unpaid debt secured by
48 the property. This can mean that when a homeowner gets behind on his
49 or her mortgage payments, the lender forces a sale of the home on
50 which the mortgage loan is based. Some individuals or businesses may
4
1 say they can "save" your home from foreclosure. You should be cau-
2 tious about such claims. It is important that you understand all the
3 terms of a plan to "rescue" you from mortgage foreclosure and how it
4 will affect you. It may result in your losing valuable equity that
5 you may have in your home. If possible, you should consult with an
6 attorney or financial professional to find out what other options you
7 may have. Do not delay seeking advice, because the longer you wait,
8 the fewer options you may have.
9 Under Idaho law, you have five (5) days to rescind or undo certain
10 contracts or agreements that relate to transferring interests in
11 property or money in a foreclosure situation. An attorney or finan-
12 cial professional can tell you more about this option.".
13 If the trust deed, or any assignments of the trust deed, are in the Span-
14 ish language, the written notice set forth in this section shall be in the
15 Spanish language on a form to be prepared and made available by the office of
16 the attorney general.
17 (4) No action, suit or proceeding has been instituted to recover the debt
18 then remaining secured by the trust deed, or any part thereof, or if such
19 action or proceeding has been instituted, the action or proceeding has been
20 dismissed.
STATEMENT OF PURPOSE
RS 17918
This legislation provides that all contracts entered into while a
residential home is in the foreclosure process must be in writing
and that consumers have a five day right of rescission. In
addition, a warning for consumers about foreclosure rescue scams
is included in foreclosure notification papers and in any written
contract.
FISCAL NOTE
None
Contact
Name: Senator Elliot Werk
Representative Bill Killen
Representative Phylis King
Phone: 332-1000
STATEMENT OF PURPOSE/FISCAL NOTE S 1431