Section 407.935

Title XXVI TRADE AND COMMERCE

Chapter 407

Effective - 28 Aug 1992   

  407.935.  Definitions. — As used in sections 407.935 to 407.943, the following words and phrases shall mean:

  (1)  "Contract", any agreement, or any term thereof, between a foreclosure consultant and an owner for the rendition of any service as defined in subdivision (6) of this section;

  (2)  "Foreclosure consultant":

  (a)  Includes any person who makes any solicitation, representation, or offer to any owner to perform for compensation or who, for compensation, performs any service which the person in any manner represents will do in any manner any of the following:

  a.  Stop or postpone the foreclosure sale;

  b.  Obtain any forbearance from any beneficiary or mortgagee;

  c.  Assist the owner to exercise any right of redemption;

  d.  Obtain any extension of the period within which the owner may reinstate his obligation;

  e.  Obtain any waiver of an acceleration clause contained in any promissory note or contract secured by a deed of trust or mortgage on a residence in foreclosure or contained in any such deed of trust or mortgage;

  f.  Assist the owner in obtaining a loan or advance of funds;

  g.  Avoid or ameliorate the impairment of the owner's credit resulting from the recording of a notice of default or the conduct of a foreclosure sale;

  h.  Save the owner's residence from foreclosure;

  (b)  A foreclosure consultant does not include any of the following:

  a.  A person licensed to practice law in this state when the person renders service in the course of his practice as an attorney at law;

  b.  A person licensed as a real estate broker pursuant to chapter 339 when the person makes a direct loan or when the person:

  (i)  Engages in acts, the performance of which require licensure under that chapter;

  (ii)  Is entitled to compensation for the act performed in connection with the sale of a residence in foreclosure or with the arranging of a loan secured by a lien on a residence in foreclosure;

  (iii)  Does not claim, demand, charge, collect, or receive any compensation until the acts have been performed or cannot be performed because of the failure of the owner to accept an offer from a purchaser or lender ready, willing, and able to purchase a residence in foreclosure or make a loan secured by a lien on a residence in foreclosure on the terms prescribed in a listing or a loan agreement; and

  (iv)  Does not acquire any interest in a residence in foreclosure directly from an owner for whom the person agreed to perform the acts other than as a trustee or beneficiary under a deed of trust given to secure the payment of a loan or that compensation;

  (v)  For the purposes of this subdivision, a "direct loan" means a loan of a real estate broker's own funds secured by a deed of trust on the residence in foreclosure, which loan and deed of trust the broker in good faith attempts to assign to a lender, for an amount at least sufficient to cure all of the defaults on obligations which are then subject to a notice of default, provided that: if a foreclosure sale is conducted with respect to the deed of trust, the person conducting the foreclosure sale has no interest in the residence in foreclosure or in the outcome of the sale and is not owned, controlled, or managed by the lending broker; the lending broker does not acquire any interest in the residence in foreclosure directly from the owner other than as a beneficiary under the deed of trust; and the loan is not made for the purpose or effect of avoiding or evading the provisions of this act^*;

  c.  A person or his authorized agent acting under the express authority or written approval of the department of housing and urban development or other department or agency of the United States or this state to provide services;

  d.  A person who holds or is owed an obligation secured by a lien on any residence in foreclosure when the person performs services in connection with the obligation or lien;

  e.  Any person licensed to make loans pursuant to sections 367.100 to 367.215, subject to the authority of the director of finance to terminate this exclusion, if after notice and hearing, any such licensee is found to have engaged in practices described in section 407.938;

  f.  Any person or entity doing business under any law of this state, or of the United States relating to banks, trust companies, savings and loan associations, credit unions, or any person or entity authorized under the laws of this state to conduct a title or escrow business, or a mortgagee which is a United States department of housing and urban development approved mortgagee and any subsidiary or affiliate of the above, and any agent or employee of the above while engaged in business of these persons or entities;

  (3)  "Owner", the record owner of any residence in foreclosure;

  (4)  "Person", any individual, partnership, corporation, association or other group, however organized;

  (5)  "Residence in foreclosure", any real property improved by a residential structure used or intended to be used as a residence by not more than four families, and occupied by the owner, which is the subject of any attempt by any person to enforce an obligation, the performance of which is secured by a mortgage or deed of trust encumbering the real property;

  (6)  "Service" includes, but is not limited to, any of the following:

  (a)  Debt, budget, or financial counseling of any type;

  (b)  Receiving money for the purpose of distributing it to creditors in payment or partial payment of any obligation secured by a lien on a residence in foreclosure;

  (c)  Contacting creditors on behalf of an owner of a residence in foreclosure;

  (d)  Arranging or attempting to arrange for an extension of the period within which the owner of a residence in foreclosure may cure his default and reinstate his obligation;

  (e)  Arranging or attempting to arrange for any delay or postponement of the time of sale of the residence in foreclosure;

  (f)  Advising the filing of any document or assisting in any manner in the preparation of any document for filing with any bankruptcy court;

  (g)  Giving any advice, explanation or instruction to an owner of a residence in foreclosure which in any manner relates to the cure of a default in or the reinstatement of an obligation secured by a lien on the residence in foreclosure, the full satisfaction of that obligation, or the postponement or avoidance of a sale of a residence in foreclosure pursuant to a power of sale contained in any deed of trust.

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(L. 1992 S.B. 705 § 2)

*"This act" (S.B. 705, 1992) contained numerous sections.  Consult Disposition of Sections table for a definitive listing.